https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5229

 REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA ENVIRONMENT AND LAND COURT CASE NUMBER: ELCLA/E063/2025 ABUD MBARAK ABUD VS OMAR ABDALLA HASSAN AND NURU ABDALLA HASSAN AND 7 OTHERS JUDGMENT Introduction 1. By a Memorandum of Appeal dated 16th September 2025, the Appellant appeals against the judgment of Hon. J.B Kalo which was delivered on 12th September 2025 in Mombasa CMELC No. E019 OF 2019. 2. The grounds of appeal are as follows; 3. The court erred in law by not determining the character of the tenancy or interest enjoyed by the Appellant (hereafter ´the Plaintiff) on plot Mombasa Block XVI/1511 (Original Number 320/XVI/MI). 4. The court adjudicated upon the 1st and 8th respondents' counterclaims without jurisdiction. 5. The court, admitted inadmissible evidence in support of the counterclaim by Flora Company (K) Limited, to the grave prejudice of the plaintiff/appellant. 6. The court erred in law in holding that the registration of the appellant's tenancy was mandatory and a prerequisite for enforcement. Alternatively, the learned magistrate erred in law by holding that the plaintiff's tenancy lapsed upon registration of a 99-year lease made to the 8 respondent Flora (K) Limited. 7. The court below erred in law by holding that the lease to Flora Company Kenya Limited Commissioners valid without supporting resolution and sanction/or consent by the Wakf Commission of Kenya. Alternatively, the court erred in accepting and admitting the 1st and 8th respondents’ irrelevant evidentiary material, in the face of two subsisting tenancies, coupled with possession vested in the plaintiff. 1. The court fell into an error of law when it inter alia failed to pronounce itself on the applicability of the provisions of the Landlord and Tenant (Shops Hotels and Catering Establishment) Act, to the facts of the plaintiff's tenancy. 2. The court decided the case in favor of the 8th respondent without proof that the lease could stand the procedural rectitude test. Alternatively, the court erred in law by not holding that the lease made to the 8th respondent was dishonest, and in contravention of the Stamp Duty Act, among other statutes. 3. The court erred in law by retrospectively applying on the plaintiff’s tenancy the terms of subsequent tenancies issued by the Wakf Commissioners of Kenya. 4. The court erred in law and equity in disregarding the doctrine of priority and its application on the facts of this case. 5. The lower court erred in denying the plaintiff damages for the admitted attempted forcible eviction and trespass. 6. The lower court's judgement is replete with many gaps and is against the weight of evidence and the pleadings filed by the disputants. 7. The lower court erred by not considering and pronouncing itself on the validity and probity of the reported sale of the suit land. 8. The court erred in law in ordering eviction of the plaintiff operating a shop from the suit property, without requiring due process of whoever is the rightful owner of the suit land. 9. The court erred in principle when it exercised its discretion in awarding costs against the plaintiff, while acquitting the grossly culpable party (i.e., Wakf Commissioners of Kenya). 10. Inter alia, the Appellant prays that the judgment of the lower court be set aside, plus costs and interests. 11. The suit before court was commenced by a Plaint dated 20th February 2019 and was later consolidated with Civil suit No. 400 of 2019. The Plaintiff avers by a lease dated 18th November 1986, the 1st Respondent herein let out premises now known as Plot No. 1511(Original Number 220) Block XVI Mombasa Island to Mr. Abdalla Hassan who is now deceased. The said Mr. Hassan who is the father to the 2nd to 8th Respondent then sublet the premises to the Appellant effective October 2000 and a controlled subtenancy was allegedly created in favor of the Appellant. At his expense, the Appellant alleges that he installed a timberyard on the suit land and has been paying rent to deceased Abdalla Hassan(deceased) as the head tenant and subsequently the 2nd to 8th Respondents herein as his beneficiaries upon his death. 12. In 2004, while the controlled tenancy subsisted, the 1st Defendant renewed the lease with the beneficiaries, that is the 2nd to 8th Respondents and the Appellant continued to pay the agreed rent until August 2018 when the beneficiaries fell out and failed to agree to whom the monthly rent was payable. 1. On 21st November 2018, a notice of Termination was then served on the Appellant by the 2nd to 8th Respondent. Additionally, the Appellant alleges that the 1st Defendant fraudulently caused to be registered a parallel instrument over the suit portion in favor of the 9th Respondent before regularly terminating the subsisting lease with the 2nd to 8th Respondent, thereby terminating his subtenancy. 2. The Appellant prayed for judgment against the Respondents for: 3. The instruments of lease between the 1st and 2nd to 8th defendants (the Respondents) on one part and 1st and 9th Defendants be declared null and void and the 10th defendant be ordered to expunge them from the records. Alternatively, a declaration be and is hereby issued that the impugned instruments of lease between the first (1st) and the second to eighth (2nd to 8th ) defendants, of the one part and the first(1st ) and the ninth (9th ) defendants, on the other, did not and could not legally determine the tenancy between the first (1st) defendant and one Mr. Abdalla Hassan (deceased), or in his place, the heirs of his estate, namely the second (2nd) to eighth (8th) defendants; or the possessory controlled sub-tenancy created by operation of law between Abdalla Hassan (deceased) (and in his place the second (2nd ) to the eighth (8th) defendants as heirs at law, of the one part and the plaintiff, on the other 4. A permanent injunction against the 1st to 9th defendants jointly and severally from evicting or otherwise determining the controlled sub- tenancy created by operation of law over sub-plot 1511/Block XVI/Mombasa Island, enjoyed by the plaintiff as a timber yard, without following due process 5. A conservatory order to maintaining the status quo ante to preserve the plaintiff's controlled sub-tenancy in and over the suit land do issue, to bar the eviction of the plaintiff or earlier determination of the controlled sub-tenancy by the defendants, or either of them, without following due process 6. An award of aggravated damages for wrongful determination and eviction, or threatened wrongful determination and eviction, to be assessed by the court. 7. Costs of the suit. 8. The 1st Defendant (1st Respondent) filed a Defense and counter claim dated 28th June 2019 where it averred that it never had a contract with the Appellant herein and the lease with the 2nd to 8th Respondent was terminated because the 2nd to 8th Respondent breached the terms o-f the lease agreement. In their counter claim they sought to have the Appellant evicted from the suit premises and sought vacant possession. 9. Equally, the 2nd to 8th Defendants (now 2nd to 8th Respondents) filed a Defense dated 20th March 2019 where they aver that their deceased father let out the suit premises to the Appellant herein as the lawful owner, they later became the Appellants’ landlord when their father died. According to them, the lease by the 9th Respondent was fraudulent and further deny the allegation that they breached the terms of the lease agreement. 1. The 9th Respondent filed a Defense and Counterclaim dated 10th July 2019. They aver that due process was followed in their acquisition of the lease. They seek to be declared as the lawful proprietors of the suit property and for the 2nd to 8th Respondent to be evicted from the suit property, a permanent injunction against the Appellant, 2nd to 8th Respondents and Mesne Profits together with costs and interest of the suit and counterclaim 2. The hearing commenced on 31st May 2022, and the Learned Trial Magistrate delivered judgment dated 5th July, 2018 where it held that the Plaintiff failed to prove his case against the defendants or any of them and consequently dismissed the suit. 3. The 9th Defendants claim on the other hand was allowed as the court found that it was merited. Judgment was entered in favor of the 9th Respondent against the Plaintiff and 2nd to 8th Defendant in the following terms: 4. A declaration is hereby issued that the 9th defendant is the lawful registered proprietor of the leasehold interest contained in MOMBASA/BLOCK XVI/151 5. An order of eviction is hereby issued against the plaintiff and the 2nd to 8th defendants who shall peacefully remove themselves from land parcel number MOMBASA/BLOCK Judgement within 90 days from the date of this judgment, failure to which they shall be forcefully evicted at their cost 6. A permanent injunction is hereby issued restraining the plaintiff and the 2nd to 8th defendants from entering, remaining on, developing, constructing, charging, alienating, leasing and/or in any way dealing with land parcel number MOMBASA/BLOCK XVI/1511 7. Noting the chequered history of the land the subject matter herein, the prayer for mesne profits is declined 8. The 9th defendant shall have costs of the Counter-Claim to be borne by the plaintiff and the 2nd to 8th defendants jointly and severally. SUBMISSIONS APPELANTS SUBMISSIONS 1. The Appellant filed submissions dated 10th March 2026 and 12th March 2026. The Appellant has challenged the jurisdiction of the trial court. According to the Appellant -the counter claims advanced by the 1st and 9th Respondents were not to be entertained to be court. He further submits that the 2nd to 8th Respondents had not obtained letters of administration and therefore lacked the legal capacity to enter into the tenancy agreement of 2004. Furthermore, since the 1st Respondents had not acquitted proprietary interest over the suit portion at the time, they lacked the capacity to enter into the agreement and consequently raise the counterclaim. 2. Additionally, the Appellant submits that a separate suit had already been instituted by the 9th Respondent, namely CMCC No. 400 of 2019 and was consolidated with the proceedings that were before court. He contends that since the lease between the 1st and 9th Respondent contained an Arbitration clause and since any dispute concerning controlled tenancy ought to be referred to dispute resolution mechanism under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. He submits that the suit did not cure the issue of jurisdiction as the trial court lacked jurisdiction to determine the claim brought by the 9th Respondent. 1. According to the Appellant, the trial court erred in finding that his tenancy came to an end when the 99-year lease was granted to the 9th Respondent and merely because his lease was not registered. According to him, the trial court failed to appreciate the legal effect of his tenancy over the suit property. He submits that as much as his written tenancy agreement had come to an end through effluxion of time, his continued occupation with his original landlord was converted into a periodic tenancy protected by section 46 and 52 of Registered Land Act (Repealed). Further, the Appellant contends that the trial court ought to have recognized his tenancy as a controlled tenancy within the meaning of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. He argues that the qualified as a shop because it was used as a timberyard, therefore neither the 1st Respondent nor the subsequent lessees could lawfully terminate or interfere with his tenancy without first complying with the mandatory statutory procedure prescribed under the Act. The Appellant submits that the continuation of his sub tenancy did not require the consent of the 1st Respondent and the 9th Respondent since his rights accrued long before the 1st and 9th Respondents acquired the suit property. 2. The Appellant further submits that the trial court acted improperly in admitting the documentary evidence pertaining the 9th Respondents lease, despite there being an alleged failure in complying with the stamp duty. He points out that there exist inconsistencies regarding the payment of the stamp duty, payment of the premium and registration of the lease. According to him, the documents were inadmissible and incapable of proving the 9th Respondents case on a balance of probability. 3. The Appellant argues that he is entitled to damages as it has been established that there was an attempt by the 9th Respondent to evict him from the suit property and his shed was demolished before the court intervened. He submits that his business operations were interfered with and was therefore entitled to compensation. He also contends that the dispute was occasioned by the irregular conduct of the 1st Respondent which resulted to unnecessary litigation. 4. In sum, the Appellant urges the court to allow the Appeal and, dismiss the counterclaims in totality and set aside the awards of costs by the trial court and instead award the costs of the Appeal and proceedings in the trial court against the 1st and 9th Respondent. 1ST RESPONDENTS SUBMISSIONS 1. The 1st Respondent filed submissions dated 5th May 2026. The Respondents submit that the trial court properly exercised its jurisdiction in determining both the suit and the counterclaims. According to the Respondent the Trial court was clothed with the requisite jurisdiction as conferred by the Environment and Land Court Act and the Civil Procedure Act to adjudicate disputes relating to land and tenancy of specific monetary value. 1. The 1st Respondents further submit that leases exceeding two years or those containing an option to purchase have to be registered as provided under section 106 of the Land Registration Act. Therefore, the Appellants contention that his tenancy was exempt from registration is legally untenable. They maintain that 99-year lease held by the 9th Respondent s valid and is registered hence the 9th respondent enjoys priority over unregistered interests. As established under section 24 and 26 of the Land Registration Act. 2. Further the 1st Respondent maintain that the lease granted to the 9th Respondent was lawfully executed, and that it was duly registered with the consent of the Wakf Commissioners of Kenya. According to the 1st Respondent the 9th Respondent is a Bonafide lessee for value without notice of any competing legally enforceable interest that would render its title ineffective. 3. Accordingly, the 1st Respondent contend that the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act cannot be applied to the instant dispute. The 1st Respondents argue that a controlled tenancy does not exist between the parties due to the nature of the suit and the interest that is already registered in favor of the of the 9th Respondent. Therefore, the Appellant cannot invoke the protection that Cap. 301 offers. The 1st Respondent submits that once the 8th Respondent was granted the lease the Appellant ceased to have any lawful or enforceable interest in the suit property. 4. In conclusion, the 1st Respondent submits that evidence was well evaluated by the learned trial magistrate and the law was well applied in dismissing the Appellants suit. They urge the court to dismiss the Appeal with costs at a higher scale to be borne by the Appellant. ANALYSIS AND DETERMINATION 1. Having carefully considered the pleadings, the evidence adduced before the trial court, the judgment appealed against, the grounds of appeal, record of appeal and rival submissions, the court is of the view that the main issue for determination before court is whether the appeal is merited. The court notes that the Learned Trial Magistrate pronounced himself as follows in the Appealed judgment; At this point in time, it is noted that the 9th defendant holds a long-term lease over the land duly registered. On the other hand, the plaintiff has staked his rights and interest in the land based on a lease agreement that he states was for an unlimited period of time. There is no evidence that the plaintiff's sub-lease agreement nor the 2nd to 8th defendants' lease agreement were registered. The plaintiff’s and 2nd to 8th defendants sub-lease having not been registered lapsed when the 9th defendant obtained a long-term leasehold interest in the land. In the circumstances, the plaintiff cannot enjoy rights over the land without the consent of the 9th defendant. In any event, the 8th defendant admitted that the land was sub-let to the plaintiff without the written consent of the 1st defendant despite that being a pre-condition in the lease agreement between the 1st defendant and the 2nd to 8th defendants. The court has no reason to doubt the evidence of the 8th defendant. In that case, the sub-lease between the plaintiff and the deceased and/or the 2nd to 8th defendants is illegal and incapable of enforcement as against the 1st defendant for being entered into without the prior written consent of the 1st defendant. 1. This being the first appeal, the court has a duty to reconsider and re-evaluate evidence on record and draw its own conclusions. The court also has the duty to bear in mind that it neither saw or heard the witnesses testify. This principle was succinctly stated in Selle & Another v Associated Motorboat Co. Ltd & Others [1968] EA 123 where the court held that; "...this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 2. The Appellant’s submits that the 2nd to 8th respondents lacked capacity to enter into a tenancy agreement of 2004 with the 1st Respondent as they had not obtained letters of administration to their deceased father. This court is of the view that the argument is self- defeating. If at all the 2nd to 8th respondent lacked capacity to deal with the estate, equally, they had no capacity to continue with the tenancy that the appellant now relies on. As regards the Arbitration clause featured in the contract between the 1st and 9th Respondent to refer matters to Arbitration, the court finds that the argument lacks merit as the clause formed part of the lease agreement between the 1st and 9th Respondent. The Appellant was not party to that agreement. The doctrine of privity of contract provides that only parties to a contract are bound by it and can enforce the its terms. 3. The Appellant further submits that the dispute ought to have been determined under Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. According to him his tenancy became a periodic controlled tenancy upon expiry of the written lease. He therefore submits that the trial court lacked jurisdiction. The Lease Agreement was between Abdalla Hassan and the Appellant, the 1st Respondent was not part of the agreement. There is no such evidence showing that rent was paid or accepted by the 1st Respondent or the sub tenancy was recognized by the 1st Respondent even after he became the registered owner in 2010. The Appellant had the burden of proof, under Section 107 and 108 of the Evidence Act to prove the facts which he claims. This Principle was stated in the case of Karugi & Another v Kabiya & 3 others [1987] eKLR where the court stated that “the burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof.” In essence, the burden of proof lies on the party that alleges a fact. Having failed to establish that a landlord-tenant relationship existed between himself and the 1st respondent, the court finds no basis upon which the 9th Respondents registered lease should be disturbed. 4. In conclusion, the evidence on record demonstrates that the 9th Respondent holds a registered lease over the suit property. Under section 24,25 and 26 of the Land Registration Act, the registered owner of the land is conferred with the rights and privileges appurtenant to the interest, unless the same is challenged under section 26 of the Act. In Athi Highway Developers Limited v West End Butchery Limited & 6 others [2015] eKLR the court of Appeal affirmed that registered interest can only be challenged on statutory ground provided under section 26 of the Act. The appellant has not demonstrated any fraud, illegality, misrepresentation or procedural impropriety that would warrant the impeachment of the 9th respondents registered lease. 1. The upshot of the foregoing is that this court finds that the Trial Magistrate’s judgment delivered on 12th September 2025 to be well reasoned and I see no reason to depart from it. Consequently, the appeal is hereby dismissed with costs to the 1st Respondent. It is so ordered. SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ANTONY O. OMBWAYO** Mombasa Environment and Land Court Environment and Land Court Date: 2026-07-31 17:48:14