Abud v Hassan & 8 others (Environment and Land Appeal E063 of 2025) [2026] KEELC 5229 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that a tenant without proof of a landlord-tenant relationship with the registered owner cannot block a registered lease.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant's sub-tenancy survived the registration of the 9th Respondent's 99-year lease and whether the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act applied
No; the appellant failed to prove a landlord-tenant relationship with the 1st Respondent or recognition of the sub-tenancy by the registered owner, so no basis existed to disturb the 9th Respondent's registered lease.
The lease agreement was between Abdalla Hassan and the appellant; the 1st Respondent was not party to it and there was no evidence rent was paid to or the sub-tenancy recognised by the 1st Respondent after it became registered owner in 2010. The appellant bore the burden under sections 107 and 108 of the Evidence Act to prove the facts he claimed and failed to discharge it. Having failed to establish the relationship on which the controlled-tenancy claim rested, the statutory protections could not be invoked.
Whether the 9th Respondent's registered lease was vulnerable to challenge (fraud, stamp duty, lack of consent)
No; under sections 24, 25 and 26 of the Land Registration Act, the registered owner enjoys the rights of the interest, and the appellant did not demonstrate any ground under section 26 to impeach the lease.
The court applied the principle that registered interests can only be challenged on the statutory grounds under section 26 of the Land Registration Act, as affirmed in Athi Highway Developers Limited v West End Butchery Limited. The appellant alleged stamp duty irregularities and lack of Wakf Commissioners' consent, but did not demonstrate fraud, illegality, misrepresentation or procedural impropriety sufficient to warrant impeachment of the registered lease.
Whether the trial court lacked jurisdiction (arbitration clause; capacity of 2nd to 8th Respondents)
The jurisdictional objections failed: the appellant was not party to the lease containing the arbitration clause, and the capacity argument was self-defeating.
The arbitration clause formed part of the lease between the 1st and 9th Respondents, to which the appellant was not a party; privity of contract meant he could not invoke it. The argument that the 2nd to 8th Respondents lacked letters of administration was self-defeating because, if they lacked capacity to deal with the estate, they equally lacked capacity to continue the tenancy on which the appellant relied.
Legal principles established
#- On a first appeal, the court must reconsider and re-evaluate the evidence and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses.
- A registered proprietor's interest can only be challenged on the statutory grounds under section 26 of the Land Registration Act.
- Only parties to a contract are bound by it and can enforce its terms (privity of contract).
- The burden of proof lies on the party that alleges a fact and remains the same throughout the case.
Court orders
#- 1.The appeal is hereby dismissed with costs to the 1st Respondent
- On appeal from
- Chief Magistrate's Court, Mombasa (Environment and Land)
- Mombasa CMELC No. E019 of 2019
- Jurisdiction invoked
- First appeal under the Environment and Land Court Act and Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abud v Hassan & 8 others (Environment and Land Appeal E063 of 2025) [2026] KEELC 5229 (KLR)", Case Analysis (2026). Mombasa CMELC Appeal (Memorandum of Appeal dated 16th September 2025) against Mombasa CMELC No. E019 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5229/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.