Abdulwahab Abrar Sheikh (hereinafter referred to as the Appellant) and Athman Omar, (hereinafter referred to as the Respondent) approached the Chief Magistrate Court in Mombasa for the resolution of a dispute Unique to the County of Mombasa in an agreement known as House on Land whereby the owner of land allows a person to construct a house on his land and charges ground rent.
The appellant, then the plaintiff averred in the lower court that around early 1980, he orally allowed the respondent herein to erect a Swahili House without Land on a portion of the suit property on condition that the respondent paid ground rent of Kshs. 1,200 per month to him and the Swahili House strictly be used for residential purposes.
The appellant stated that it was a term of the said agreement that the respondent would not undertake any structural changes on the said house without his consent. The appellant averred that the respondent dug a pit hole in the said house without his consent and that since the respondent has no soak pit, he has caused his neighbours great nuisance and even exposed them to health hazards. The appellant lamented in the lower court that the respondent herein declined to pay ground rent since the year 2010. According to the appellant, the respondent has severally been reminded and notified to pay ground rent but he has willfully declined to do so and as such, he is in ground rent arrears of Kshs. 151,200 and the same continues to accrue on a monthly basis. The appellant contended that the respondent was in breach of the agreement for lease of the portion of the suit property on which he erected his Swahili House without land because the respondent willfully neglected and or refused to pay him ground rent since the year 2010.
The particulars of the respondents breach of agreement was Refusing to pay ground rent to the Plaintiff since the year 2010 and digging a pit hole in the Swahili House without the appellants consent. And remaining on the suit property land without the appellants consent.
Building the house without-land without building permit. The appellant stated that the respondent had been issued with a notice to vacate the land on several occasions but had failed, ignored and or refused to vacate the same. By reason of the matters aforesaid, the appellant has been deprived of the use and enjoyment of the suit property and has thereby suffered loss and damage.
The appellant particularized the loss as Legal fees paid by the appellant to institute this suit, Legal fees paid by the appellant to have a notice to vacate the suit premises drafted and served on the respondent . Loss of income from the forestalled use of the suit property.
The appellant prayed for respondent be ordered to vacate the suit property known as SUBDIVISION NUMBER 22361 CONTAINED IN CERTIFICATE OF TITLE NUMBER CR. 75191. (Originally known as Plot No. 144/MN/1 before subdivision) and that the court do order that the Defendant's Swahili House without land erected on the suit property known as SUBDIVISION NUMBER 22367 AS CONTAINED IN CERTIFICATE OF TITLE NUMBER CR. Z5191(Originally known as Plot No, 144/MN/ I before subdivision) be demolished and that the respondent be ordered to pay the Plaintiff the outstanding ground rent arrears of Kshs. 151,000 and the accruing ground rent arrears from the time of filing this suit until the same is determined. The OCS Nyali Police Station be ordered to provide security to ensure compliance with the eviction orders herein plus costs of and incidental to these proceedings;
In his defence the respondent denied the applicants allegations and stated that he purchased the land at consideration of Kshs7000 and has been in lawful occupation since then a fact that is within the knowledge of the appellant. He denied having entered any agreement to build a house on the land and pay ground rent of Kshs1200. He stated that he bought the land and built a house and has been in possession for 48 years. He denied having put a hazardous pit hole on the land. He denies having been given any notice to vacate. He states that the suit is time barred under the Limitations of Actions Act and that the title to the land was extinguished 12 years from 1974.
In the lower court the appellant testified that he is the registered owner of all that land known as SUBDIVISION NUMBER 22367AS CONTAINED IN CERTIFICATE OF TITLE NUMBER CR. '15191 (Originally known as Plot No. 144/MN/1 before subdivision) located at Kongowea area within Mombasa County (hereinafter referred to as the suit property). That around early 1980, he orally allowed the respondent herein to erect a Swahili House without Land on a portion of the suit property on condition that the respondent paid ground rent of Kshs. 1,200 per month and the Swahili House strictly be used for residential purposes. That it was a term of the said agreement that the Defendant will not undertake any structural changes on the said house without my consent had been first obtained. The respondent dug a pit hole in the said house without the appellants consent. Since the respondent has no soak pit, he has caused his neighbors great nuisance and even exposed them to health hazards. He declined to pay ground rent since the year 2010. The respondent has severally been reminded and notified to pay ground rent but he has wilfully declined to do so and as such, he is in ground rent arrears of Kshs.151,200 and the same continues to accrue on a monthly basis. The respondent herein is in breach of the agreement for lease of the portion of the suit property on which he erected his Swahili House without land because the respondent has willfully neglected and or refused to pay him ground rent since the year 2010.
The respondent in the lower court called Rova Shehe, 49 years old and the son of the respondent. He stated that they purchased land known as plot no. 144/MN/1 in 1974 and have since then enjoyed lawful and peaceful occupation of the suit property. This property of land is where they have been raised with his siblings and as such know no any other home. They have constructed a house on the suit property and at no time did they pay ground rent to any one, the appellant included. Neither have they ever been served with notices and/or demand letters to vacate or even satisfy the alleged ground rent. There exists no hazardous pits within the suit property.
After hearing the parties, the Learned Magistrate correctly found that this is a house without land system of ownership where owner of land rents the ground to a person and allows him to build a house. This is a concept of land known in the coastal region of Kenya. The agreement was not in writing. It was an oral agreement. The learned magistrate found that the presence of the respondent on the land was with the consent of the appellant. However, it is not clear on what basis the learned magistrate said that it was not fair to evict a person who has been in premises of land for more than 3 decades.
The learned magistrate ordered that the respondent to pay outstanding rent within 90 days from the date of judgment failure of the same, he be evicted. The appellant was dissatisfied with the decision of and appealed to this court on grounds that the learned magistrate did not appreciate the concept of the house without land and that the learned magistrate did not appreciate that consent and authority of appellant was necessary for the respondent’s occupation and enjoyment.
Moreover, that the learned magistrate erred in failing to find that notice was given and things ought to have given an order of eviction. The learned magistrate erred in failing to find that the respondent breached the agreement in failing to pay ground rent from the year 2010 and by failing to grant general damages whereas the defendant unlawfully occupied the land after expiry of notice to vacate. That the learned magistrate erred in failing to find that the appellant was denied the use and enjoyment of the land after expiry of the notice. The
The appellant submits that court cannot re-write agreement for parties and that in this case it was clear that the suit property belonged to the appellant and that the respondent built a Swahili house without land on the suit land within the premises of the appellant and that he has not been paying ground rent. The respondent did not provide any document of sale.
The appellants submitted that the respondent did not challenge the notice to vacate the property. The house without land principle does not transfer title to the occupier. I have carefully considered the written submissions and do find that the following issues ripe for determination –
1. Whether there was a house without land arrangement.
2. Whether there was a sale of land agreement.
3. Whether there was adverse possession concept.
4. Was the appellant entitled to the reliefs sought.
On the first issue, I do find that the agreement between the parties was oral. It was not in writing. There were no witnesses in the agreement. However, it is clear that the land belongs to the Appellant whereas the house belongs to the respondent. It is deducible that this was the unique arrangement of house without land. Where a person is the registered owner of a parcel of land, there is a conclusive presumption that he is also the owner of all buildings of whatever kind on that land. Under the Mohammedan Law and the Land Titles Act, Cap. 282, (applicable to the Coastal region and partly repealed the Mohammedan law, but has also since been repealed), a building erected by one person, even by a trespasser, on the land of another does not become attached to the land but remains the property of the person who erected it.
On the 1st issue, as to whether there was a sale of land, this court finds that the agreement was allegedly oral. There are no witnesses. There is no evidence of consideration being paid. I do find that this was not a sale of land, however, there is evidence that the respondent was allowed to take possession and construct a house.
In the case of Famau Mwenye Ali & 19 others v Mariam Binti Said [2010] KEHC 3559 (KLR) the court described the concept of a house without land as a unique land tenure system where the owner of the house is different from the owner of the land on which it stands. This land tenure system defies the common law concept of land expressed in the Latin maxim cujus est solum ejus est usque ad coelum meaning ‘whose is the soil, his is also that which is above it.’ In a “house without land” arrangement, a person has the right to build their house on another person’s land under an agreement which does not pass the title to the land. Judges have likened this unique land tenure system to a lease determinable by either effluxion of time or notice given by either party in accordance with the lease agreement or as stipulated by law in
The 2nd issue is that whether the concept of adverse possession applies, I do find that the respondent was allowed entry to the land hence the concept of adverse possession does not apply as one of the requirements to be satisfied is that the possession must be non permissive. Adverse possession allows an individual to claim legal ownership of a property by occupying it for a specific period without the owner's permission in Kenya it is 12 years. To succeed, the claimant must prove five specific requirements: Actual, Open and Notorious, Exclusive, Hostile (Without Permission), and Continuous possession for the statutory time period. The respondent's possession was permissive.
On loss of use and damages the court finds that there is no evidence of a written notice issued to the respondent and therefore the appellant is not entitled to damages. Ultimately, I do find that the learned magistrate erred when he ordered that the respondent be issued with notice to pay outstanding rent arrears which had not been proved. The appellant never adduced evidence that the respondent was owing him Kshs151,200.
The learned magistrate, further erred in failing to grant an order of eviction of the respondent as the property belonged to the appellant and had prayed for the eviction of the respondent.
I do allow the appeal and set aside the judgment of Hon R. N. Akee of 13th September 2024 and do grant orders that respondent be ordered to vacate the suit property known as SUBDIVISION NUMBER 22361 CONTAINED IN CERTIFICATE OF TITLE NUMBER CR. 75191. (Originally known as Plot No. 144/MN/1 before subdivision) within a period of 100 days and that the Defendant's Swahili House without land erected on the suit property known as SUBDIVISION NUMBER 22367 AS CONTAINED IN CERTIFICATE OF TITLE NUMBER CR. Z5191(Originally known as Plot No, 144/MN/ I before subdivision) be demolished.
The appellant, then the plaintiff averred in the lower court that around early 1980, he orally allowed the respondent herein to erect a Swahili House without Land on a portion of the suit property on condition that the respondent paid ground rent of Kshs. 1,200 per month to him and the Swahili House strictly be used for residential purposes.
The appellant stated that it was a term of the said agreement that the respondent would not undertake any structural changes on the said house without his consent. The appellant averred that the respondent dug a pit hole in the said house without his consent and that since the respondent has no soak pit, he has caused his neighbours great nuisance and even exposed them to health hazards. The appellant lamented in the lower court that the respondent herein declined to pay ground rent since the year 2010. According to the appellant, the respondent has severally been reminded and notified to pay ground rent but he has willfully declined to do so and as such, he is in ground rent arrears of Kshs. 151,200 and the same continues to accrue on a monthly basis. The appellant contended that the respondent was in breach of the agreement for lease of the portion of the suit property on which he erected his Swahili House without land because the respondent willfully neglected and or refused to pay him ground rent since the year 2010.
The particulars of the respondents breach of agreement was Refusing to pay ground rent to the Plaintiff since the year 2010 and digging a pit hole in the Swahili House without the appellants consent. And remaining on the suit property land without the appellants consent.
Building the house without-land without building permit. The appellant stated that the respondent had been issued with a notice to vacate the land on several occasions but had failed, ignored and or refused to vacate the same. By reason of the matters aforesaid, the appellant has been deprived of the use and enjoyment of the suit property and has thereby suffered loss and damage.
The appellant particularized the loss as Legal fees paid by the appellant to institute this suit, Legal fees paid by the appellant to have a notice to vacate the suit premises drafted and served on the respondent . Loss of income from the forestalled use of the suit property.
The appellant prayed for respondent be ordered to vacate the suit property known as SUBDIVISION NUMBER 22361 CONTAINED IN CERTIFICATE OF TITLE NUMBER CR. 75191. (Originally known as Plot No. 144/MN/1 before subdivision) and that the court do order that the Defendant's Swahili House without land erected on the suit property known as SUBDIVISION NUMBER 22367 AS CONTAINED IN CERTIFICATE OF TITLE NUMBER CR. Z5191(Originally known as Plot No, 144/MN/ I before subdivision) be demolished and that the respondent be ordered to pay the Plaintiff the outstanding ground rent arrears of Kshs. 151,000 and the accruing ground rent arrears from the time of filing this suit until the same is determined. The OCS Nyali Police Station be ordered to provide security to ensure compliance with the eviction orders herein plus costs of and incidental to these proceedings;
In his defence the respondent denied the applicants allegations and stated that he purchased the land at consideration of Kshs7000 and has been in lawful occupation since then a fact that is within the knowledge of the appellant. He denied having entered any agreement to build a house on the land and pay ground rent of Kshs1200. He stated that he bought the land and built a house and has been in possession for 48 years. He denied having put a hazardous pit hole on the land. He denies having been given any notice to vacate. He states that the suit is time barred under the Limitations of Actions Act and that the title to the land was extinguished 12 years from 1974.
In the lower court the appellant testified that he is the registered owner of all that land known as SUBDIVISION NUMBER 22367AS CONTAINED IN CERTIFICATE OF TITLE NUMBER CR. '15191 (Originally known as Plot No. 144/MN/1 before subdivision) located at Kongowea area within Mombasa County (hereinafter referred to as the suit property). That around early 1980, he orally allowed the respondent herein to erect a Swahili House without Land on a portion of the suit property on condition that the respondent paid ground rent of Kshs. 1,200 per month and the Swahili House strictly be used for residential purposes. That it was a term of the said agreement that the Defendant will not undertake any structural changes on the said house without my consent had been first obtained. The respondent dug a pit hole in the said house without the appellants consent. Since the respondent has no soak pit, he has caused his neighbors great nuisance and even exposed them to health hazards. He declined to pay ground rent since the year 2010. The respondent has severally been reminded and notified to pay ground rent but he has wilfully declined to do so and as such, he is in ground rent arrears of Kshs.151,200 and the same continues to accrue on a monthly basis. The respondent herein is in breach of the agreement for lease of the portion of the suit property on which he erected his Swahili House without land because the respondent has willfully neglected and or refused to pay him ground rent since the year 2010.
The respondent in the lower court called Rova Shehe, 49 years old and the son of the respondent. He stated that they purchased land known as plot no. 144/MN/1 in 1974 and have since then enjoyed lawful and peaceful occupation of the suit property. This property of land is where they have been raised with his siblings and as such know no any other home. They have constructed a house on the suit property and at no time did they pay ground rent to any one, the appellant included. Neither have they ever been served with notices and/or demand letters to vacate or even satisfy the alleged ground rent. There exists no hazardous pits within the suit property.
After hearing the parties, the Learned Magistrate correctly found that this is a house without land system of ownership where owner of land rents the ground to a person and allows him to build a house. This is a concept of land known in the coastal region of Kenya. The agreement was not in writing. It was an oral agreement. The learned magistrate found that the presence of the respondent on the land was with the consent of the appellant. However, it is not clear on what basis the learned magistrate said that it was not fair to evict a person who has been in premises of land for more than 3 decades.
The learned magistrate ordered that the respondent to pay outstanding rent within 90 days from the date of judgment failure of the same, he be evicted. The appellant was dissatisfied with the decision of and appealed to this court on grounds that the learned magistrate did not appreciate the concept of the house without land and that the learned magistrate did not appreciate that consent and authority of appellant was necessary for the respondent’s occupation and enjoyment.
Moreover, that the learned magistrate erred in failing to find that notice was given and things ought to have given an order of eviction. The learned magistrate erred in failing to find that the respondent breached the agreement in failing to pay ground rent from the year 2010 and by failing to grant general damages whereas the defendant unlawfully occupied the land after expiry of notice to vacate. That the learned magistrate erred in failing to find that the appellant was denied the use and enjoyment of the land after expiry of the notice. The
The appellant submits that court cannot re-write agreement for parties and that in this case it was clear that the suit property belonged to the appellant and that the respondent built a Swahili house without land on the suit land within the premises of the appellant and that he has not been paying ground rent. The respondent did not provide any document of sale.
The appellants submitted that the respondent did not challenge the notice to vacate the property. The house without land principle does not transfer title to the occupier. I have carefully considered the written submissions and do find that the following issues ripe for determination –
1. Whether there was a house without land arrangement.
2. Whether there was a sale of land agreement.
3. Whether there was adverse possession concept.
4. Was the appellant entitled to the reliefs sought.
On the first issue, I do find that the agreement between the parties was oral. It was not in writing. There were no witnesses in the agreement. However, it is clear that the land belongs to the Appellant whereas the house belongs to the respondent. It is deducible that this was the unique arrangement of house without land. Where a person is the registered owner of a parcel of land, there is a conclusive presumption that he is also the owner of all buildings of whatever kind on that land. Under the Mohammedan Law and the Land Titles Act, Cap. 282, (applicable to the Coastal region and partly repealed the Mohammedan law, but has also since been repealed), a building erected by one person, even by a trespasser, on the land of another does not become attached to the land but remains the property of the person who erected it.
On the 1st issue, as to whether there was a sale of land, this court finds that the agreement was allegedly oral. There are no witnesses. There is no evidence of consideration being paid. I do find that this was not a sale of land, however, there is evidence that the respondent was allowed to take possession and construct a house.
In the case of Famau Mwenye Ali & 19 others v Mariam Binti Said [2010] KEHC 3559 (KLR) the court described the concept of a house without land as a unique land tenure system where the owner of the house is different from the owner of the land on which it stands. This land tenure system defies the common law concept of land expressed in the Latin maxim cujus est solum ejus est usque ad coelum meaning ‘whose is the soil, his is also that which is above it.’ In a “house without land” arrangement, a person has the right to build their house on another person’s land under an agreement which does not pass the title to the land. Judges have likened this unique land tenure system to a lease determinable by either effluxion of time or notice given by either party in accordance with the lease agreement or as stipulated by law in
The 2nd issue is that whether the concept of adverse possession applies, I do find that the respondent was allowed entry to the land hence the concept of adverse possession does not apply as one of the requirements to be satisfied is that the possession must be non permissive. Adverse possession allows an individual to claim legal ownership of a property by occupying it for a specific period without the owner's permission in Kenya it is 12 years. To succeed, the claimant must prove five specific requirements: Actual, Open and Notorious, Exclusive, Hostile (Without Permission), and Continuous possession for the statutory time period. The respondent's possession was permissive.
On loss of use and damages the court finds that there is no evidence of a written notice issued to the respondent and therefore the appellant is not entitled to damages. Ultimately, I do find that the learned magistrate erred when he ordered that the respondent be issued with notice to pay outstanding rent arrears which had not been proved. The appellant never adduced evidence that the respondent was owing him Kshs151,200.
The learned magistrate, further erred in failing to grant an order of eviction of the respondent as the property belonged to the appellant and had prayed for the eviction of the respondent.
I do allow the appeal and set aside the judgment of Hon R. N. Akee of 13th September 2024 and do grant orders that respondent be ordered to vacate the suit property known as SUBDIVISION NUMBER 22361 CONTAINED IN CERTIFICATE OF TITLE NUMBER CR. 75191. (Originally known as Plot No. 144/MN/1 before subdivision) within a period of 100 days and that the Defendant's Swahili House without land erected on the suit property known as SUBDIVISION NUMBER 22367 AS CONTAINED IN CERTIFICATE OF TITLE NUMBER CR. Z5191(Originally known as Plot No, 144/MN/ I before subdivision) be demolished.