Said & another v Mbarak (Environment and Land Case 12 of 2020) [2026] KEMC 806 (KLR) (27 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATE COURT CIVIL** **MCCELC NO. 12 OF 2020** **AHMED ALI SAID** **SALWA ALI SAID........................................................................................PLAINTIFFS** **VERSUS** **SALIM IDHA MBARAK .......................................................................... DEFENDANT** **JUDGMENT** **Introduction** 1. This dispute concerns Mombasa/Block XLV/129, measuring approximately 0.033 hectares. The Plaintiffs are the registered proprietors of the property as trustees of a Wakf. The title exhibited before the Court shows Ahmed Ali Said and Salwa Ali Said as the registered proprietors and reflects a lease in favour of Mohamed Idha Mbarak. 2. The dispute has its genesis in a lease dated 9th September 1985, granted to Mohamed Idha Mbarak for a term of 99 years commencing on 1st January 1985, at a rent of KShs. 200 per month. Mohamed was the brother of the present Defendant, Salim Idha Mbarak. 3. The Plaintiffs' case is substantially that Mohamed breached the lease by failing to pay rent and that, following Mohamed's death, the Defendant remained in occupation without any contractual or other legal entitlement. They consequently seek, inter alia, termination/nullification of the lease, vacant possession/eviction, mesne profits and damages for trespass. 4. The Defendant resists the claim. He maintains that the 99-year lease remains valid; that his late brother's occupation was lawful; that municipal rates were paid pursuant to an arrangement by which those payments were to be offset against rent; and, significantly, that after Mohamed's death the Plaintiffs could not simply amend their claim and pursue him personally for obligations arising from a contract to which he was not a party. 5. I have considered the pleadings as amended, the oral testimony and cross-examination of the witnesses, the documentary exhibits, the title and lease, the parties' written submissions and the authorities placed before the Court. The Defendant's submissions in particular raise the questions of substitution under Order 24, privity of contract, the alleged rates/rent arrangement, eviction, trespass and mesne profits. **The Plaintiffs’ case** 1. The Plaintiffs' documentary evidence establishes that they are registered as proprietors of Mombasa/Block XLV/129 in their capacity as trustees of the Wakf. The title produced is dated 30th December 2019. 2. The Plaintiffs also relied upon the order appointing them trustees of the Wakf properties. I am therefore satisfied that they have demonstrated their proprietary interest and capacity in respect of the suit property. 3. Their witness acknowledged the lease to Mohamed. The Plaintiffs' case was, however, that Mohamed defaulted in payment of rent. Of some significance, the oral evidence was that Mohamed stopped paying rent in 2008. Elsewhere, the Plaintiffs' submissions suggested that rent had never been paid. Where submissions conflict with testimony, the evidence must prevail: submissions are not evidence. The Plaintiffs' witness further testified that there was no agreement between the Plaintiffs and Salim. The agreement was with Mohamed, who is now deceased. 4. The witness acknowledged that the Defendant was Mohamed's brother and that his occupation arose in the context of Mohamed's occupation of the property. The Defendant was therefore not portrayed as a complete stranger who had simply invaded the property. 5. Nevertheless, according to the Plaintiffs, after Mohamed died the Defendant continued occupying the property without obtaining a lease from them and without demonstrating that he was the legal representative of Mohamed's estate. 6. The Plaintiffs also disputed that payment of municipal rates entitled the Defendant to remain on the property or constituted payment of rent. 7. On monetary relief, the Plaintiffs claimed mesne profits at KShs. 10,000 per month. During cross-examination, however, their witness was unable to provide an objective basis for that figure. When questioned as to how the figure was arrived at, the answer recorded was that there was no method. 8. In their later submissions, the Plaintiffs additionally proposed KShs. 500,000 as general damages for trespass. **The Defendant’s case** 1. The Defendant, Salim Idha Mbarak, testified that Mohamed Idha Mbarak was his deceased brother. He acknowledged that Mohamed was the person who entered into the lease. He was therefore not himself the original contractual lessee. The Defendant stated that he had lived in the premises with Mohamed for approximately 30 years and had no other home. He relied upon his witness statement and documentary exhibits. 2. His principal substantive answer to the allegation of rent default was that the Plaintiffs had requested that municipal/land rates be settled and the payments offset against rent. The Defendant testified to a payment of approximately KShs. 62,000 to the municipal authority. His pleaded case gave the more precise figure of approximately KShs. 62,075. 3. The Plaintiffs' witness was also questioned about municipal rates. The oral proceedings establish that rates were indeed an issue between the parties and were paid at different times. The Plaintiffs' own evidence included an acknowledgment that Mohamed had paid municipal rates. 4. The Defendant nevertheless conceded an important matter: when asked about his succession to Mohamed's interest, he identified himself as Mohamed's successor but did not produce a grant of representation or letters of administration demonstrating that Mohamed's estate had legally devolved upon him or that he had authority to administer it. 5. In submissions, the Defendant turned that fact against the Plaintiffs. He argued that because Mohamed was the contracting party, the Plaintiffs were obliged upon his death to substitute his legal representative under Order 24 Rule 4 of the Civil Procedure Rules, instead of proceeding personally against Salim. **Issues for determination** 1. From the pleadings, evidence and submissions, the following issues arise: 2. Whether the 1985 lease was valid and whether it subsisted at the commencement of these proceedings. 3. What was the effect of Mohamed Idha Mbarak's death upon the proceedings and whether the Plaintiffs could properly proceed against Salim personally. 4. Whether breach of the lease through non-payment of rent was established. 5. What effect, if any, the payment of municipal rates had upon the rental obligation. 6. Whether the Defendant has established a legal entitlement to remain in possession. 7. Whether the Plaintiffs are entitled to termination/nullification of the lease and eviction/vacant possession. 8. Whether the Defendant is liable in trespass. 9. Whether mesne profits and/or general damages have been established. 10. Costs. I consider them accordingly. The 1985 lease 1. There is no serious factual dispute that a lease existed. Indeed, the documentary evidence is compelling. The title/register records a lease dated 9th September 1985 to Mohamed Idha Mbarak for 99 years from 1st January 1985, at a rent of KShs. 200 per month. The lease itself was produced. The Defendant accepts it. The Plaintiffs themselves founded their original case upon it. In their later submissions, the Plaintiffs suggested that the 99-year arrangement was not properly formalised through issuance of a separate certificate of lease. That contention sits uneasily with their own title documentation showing the lease registered as an encumbrance and with the actual lease instrument placed before the Court. More fundamentally, submissions cannot displace documentary evidence. I therefore find that the existence of the 1985 lease was proved. 2. A 99-year term commencing on 1st January 1985 would ordinarily run well beyond the date upon which this action was commenced. Mere passage of time had therefore not exhausted the contractual term. Death of Mohamed and the procedural difficulty 1. This is the most consequential issue in the suit. Mohamed Idha Mbarak was the contracting lessee. Salim was not. Mohamed subsequently died. The evidence before me does not establish that Salim obtained a grant of representation to Mohamed's estate. Indeed, Salim effectively conceded that he had no such instrument. The Plaintiffs rely heavily upon that absence. They contend that Salim cannot inherit or enforce Mohamed's lease merely because he is Mohamed's brother. 2. As a proposition of succession law, that argument has considerable force. The property of a deceased person does not devolve informally upon whichever relative happens to take possession. A person seeking to administer the estate must have the requisite legal authority. 3. The Plaintiffs relied upon the principle against intermeddling with the estate of a deceased person. But that proposition does not resolve the procedural problem confronting the Plaintiffs themselves. 4. The Defendant correctly points out that the original suit was against Mohamed. Upon his death, if the cause of action survived, the procedure prescribed by Order 24 Rule 4 of the Civil Procedure Rules became relevant. 5. The Defendant's submissions reproduce the substance of the rule: where a sole defendant dies and the cause of action survives, the Court, upon application, causes the deceased defendant's legal representative to be made a party, and that representative may raise defences appropriate to his character as legal representative. The Plaintiffs did not establish that Salim was appointed Mohamed's legal representative. 6. That creates an unavoidable inconsistency in the Plaintiffs' case. They cannot simultaneously maintain that: Salim is not Mohamed's legal representative and cannot assert Mohamed's contractual rights; while seeking to impose upon Salim personally: Mohamed's contractual liabilities arising from the same lease. Privity operates in both directions. 7. If Salim is a stranger to Mohamed's lease for purposes of enforcing its benefits, he is equally not personally liable for Mohamed's historical contractual defaults merely because he is Mohamed's brother. 8. The Plaintiffs were entitled to pursue an appropriate representative of Mohamed's estate in respect of Mohamed's alleged breach. They did not establish that Salim was such representative. 9. I consequently find that the Defendant cannot personally be held liable for Mohamed's historical contractual breaches merely by reason of being Mohamed's brother. 10. This does not, however, mean that Salim thereby acquires an indefinite personal right to remain on the Plaintiffs' property. That is a separate question to which I shall return. Was non-payment of rent established? 1. The lease stipulated rent of KShs. 200 per month. The Plaintiffs alleged prolonged default. Their oral evidence was more specific: Mohamed stopped paying rent in 2008. The Defendant did not produce a continuous record of direct rental payments at KShs. 200 per month. Instead, the Defence substantially rested upon the contention that municipal rates were paid and were to be offset against rent. I am therefore satisfied that ordinary direct rental payments were not shown to have continued in accordance with the literal rent clause. But that does not end the inquiry because of the alleged rates arrangement. Municipal rates and the alleged set-off 1. This was not a fictitious issue created solely in submissions. It featured in the pleadings, documents and oral evidence. The Defendant maintained that the Plaintiffs requested settlement of municipal rates and agreed that those payments would be offset against rent. There was evidence of substantial outstanding municipal charges and of payments made following a waiver. The Defendant relied upon a payment of approximately KShs. 62,075. His oral evidence referred approximately to KShs. 62,000. The Plaintiffs' witness also acknowledged municipal payments and, importantly, evidence was recorded that Mohamed Idha paid municipal rates. 2. The Defendant's submissions further emphasize PW1's admission that rates would ordinarily fall upon the owner/landlord, while arguing that the Plaintiffs had benefited from their payment. There is consequently some evidential foundation for the Defendant's assertion that rates were being dealt with in connection with occupation of the property. 3. What is less satisfactorily proved is the precise contractual term that every shilling paid in rates would extinguish a corresponding rental liability. No written variation of the lease clearly setting out that mechanism was placed before the Court. The Defendant's estoppel argument therefore cannot simply be accepted in its broadest form. 4. Equally, however, the Court cannot ignore proved payments benefiting the property owner and then treat the entire historical period as one of complete non-performance without accounting for those payments. 5. I therefore find that the evidence establishes payment of municipal rates connected with the property, but does not sufficiently establish the precise extent to which those payments discharged all rent falling due under the lease. Can the lease be nullified against Salim? 1. The Plaintiffs ask for nullification/termination of Mohamed's lease. Yet their own case is that Salim is not Mohamed's legal representative. A court should be slow to determine finally the proprietary contractual rights of a deceased person's estate when the estate is not properly represented before it. 2. The Defendant's submission on this point is persuasive. The lease belonged contractually to Mohamed. If the Plaintiffs seek its forfeiture or termination because of Mohamed's breach, the estate whose proprietary interest stands to be extinguished ought properly to be represented. Salim cannot defend Mohamed's estate without a grant merely because he is Mohamed's brother. 3. But correspondingly, a judgment against Salim personally should not be used indirectly to extinguish an estate's contractual interest when the estate itself has not properly been brought before the Court. I therefore decline, in these proceedings as presently constituted, to make a final declaration nullifying the 1985 lease on account of Mohamed's contractual breach. Does Salim personally have a right to remain? 1. That conclusion does not confer a lease upon Salim. Salim admitted that he was not the original lessee. He did not produce a lease entered into personally between himself and the Plaintiffs. He did not establish an assignment of Mohamed's lease to himself. He did not produce a grant of representation establishing his authority to possess the property on behalf of Mohamed's estate. Nor did he establish transmission of the leasehold interest to himself through succession. 2. His evidence that he has lived there for approximately 30 years explains the factual circumstances of his occupation. It does not, without more, establish a proprietary or contractual interest. Long occupation is not by itself a substitute for proof of the legal right asserted. I therefore find that Salim has not proved an independent legal entitlement to occupy Mombasa/Block XLV/129 in his personal capacity. That finding must nevertheless be carefully distinguished from declaring Mohamed's estate's lease extinguished. The two propositions are not the same. Eviction and vacant possession 1. The Plaintiffs are the registered proprietors. Salim has failed to establish an independent contractual or proprietary entitlement against them. The Defendant cannot rely upon Mohamed's lease as though it had automatically devolved upon him personally while simultaneously accepting that he has no grant or other instrument of succession. The Plaintiffs are therefore entitled, as against Salim personally, to recovery of possession from him. 2. However, because a residential home is involved and because the evidence demonstrates very long occupation originating from the 1985 lease rather than a recent forcible intrusion, an order for immediate forcible eviction would be disproportionate. I shall therefore grant the Defendant a reasonable period within which to deliver vacant possession. Trespass 1. Trespass requires careful treatment in the circumstances of this case. The Plaintiffs describe Salim as a trespasser. Yet the evidence establishes that he lived on the premises with his brother, the contractual lessee, for many years. His original presence cannot therefore fairly be characterized as the ordinary case of a stranger unlawfully entering another person's land. 2. The question is whether his continued occupation, after Mohamed's death and without establishing an independent entitlement or authority to administer Mohamed's estate, became unlawful as against the registered owners. 3. I find that once Salim asserted continued possession personally, despite lacking a lease, assignment, grant or other legal authority, the Plaintiffs were entitled to demand possession. His continued occupation thereafter is capable of constituting trespass as against the registered owners. But the circumstances materially affect quantum. 4. The Defendant did not invade vacant land, demolish the Plaintiffs' structures or construct a new building upon their land in circumstances comparable to the ordinary authorities on trespass. He had lived there through the tenure of his deceased brother. 5. In Philip Ayaya Aluchio v Crispinus Ngayo, relied upon by the Defendant, the court considered diminution in value/restoration cost and ultimately awarded KShs. 100,000 for trespass. 6. The Plaintiffs have produced no valuation demonstrating diminution in value, no evidence of physical damage requiring restoration, and no other objective evidence justifying the proposed KShs. 500,000. In those circumstances, I decline to award KShs. 500,000. 7. Considering the unusual history of the occupation, and particularly its origin in the lawful tenancy of the Defendant's brother, I consider a modest award appropriate. I award the Plaintiffs KShs. 100,000 as general damages for trespass. Mesne profits 1. The Plaintiffs seek mesne profits at KShs. 10,000 per month. Mesne profits are compensatory and must have an evidential foundation. They are not automatically awarded merely because possession is found to be unlawful. 2. The Defendant relied upon Kenya Hotel Properties Limited v Willesden Investments Limited [2009] eKLR, whose treatment of mesne profits and damages is reproduced in the Defendant's authorities. The difficulty for the Plaintiffs is straightforward: there is no valuation report, no comparable rental evidence, no estate agent's testimony and no other objective material demonstrating that the premises could reasonably command KShs. 10,000 per month. 3. More decisively, when PW1 was expressly asked how the figure of KShs. 10,000 had been arrived at, the answer recorded was that there was no method. A court cannot manufacture an evidential basis which a claimant has failed to supply. The claim for mesne profits at KShs. 10,000 per month is therefore dismissed. 4. I also decline to substitute another monthly figure of my own invention. The contractual rent of KShs. 200 fixed in 1985 is not evidence of current market rental value, while the KShs. 10,000 figure has not been proved. The Plaintiffs’ alternative argument concerning validity/formalisation of the lease 1. The Plaintiffs' submissions additionally attack the formal status of the lease. I do not consider it necessary or appropriate to determine the case upon that alternative argument. 2. The lease instrument was produced; its existence is reflected in the land register; both parties relied upon it; and the litigation itself historically proceeded upon its existence. 3. More importantly, extinguishing Mohamed's estate's interest on a contested legal theory in proceedings in which the estate is not properly represented would reproduce the same procedural difficulty already identified. That question is therefore left open for determination in properly constituted proceedings should it become necessary. Overall findings 1. I consequently find as follows: The Plaintiffs have established their registered proprietorship of Mombasa/Block XLV/129. A 99-year lease commencing on 1st January 1985 was granted to Mohamed Idha Mbarak at KShs. 200 per month. Mohamed, rather than Salim, was the contractual lessee. The evidence establishes historical non-payment of ordinary rent, although municipal-rate payments complicate the Plaintiffs' assertion of complete non-performance. The evidence does not satisfactorily quantify the extent to which municipal payments extinguished rental liability. Mohamed subsequently died. Salim has not proved that he is Mohamed's legal representative. Salim therefore cannot personally enforce Mohamed's lease merely because he is Mohamed's brother. Conversely, Mohamed's historical contractual liabilities cannot simply be imposed upon Salim personally. The Plaintiffs did not properly place Mohamed's estate before the Court for purposes of finally extinguishing the estate's contractual leasehold interest. Accordingly, I decline to nullify the lease on the basis of Mohamed's alleged breach in these proceedings. Salim nevertheless failed to establish any independent personal right to possession. The registered proprietors are consequently entitled to vacant possession as against Salim personally. The Plaintiffs have not proved mesne profits of KShs. 10,000 per month. General damages for trespass are appropriate but the claimed/proposed KShs. 500,000 is unsupported by the evidence. **Final Orders** 1. In the result, judgment is entered on the following terms: 2. A declaration is hereby issued that the Defendant, Salim Idha Mbarak, has not established any personal leasehold, proprietary or other legal entitlement to remain in occupation of Mombasa/Block XLV/129. 3. The Plaintiffs' prayer seeking nullification/termination of the lease dated 9th September 1985 on account of breaches allegedly committed by the late Mohamed Idha Mbarak is declined, the estate of Mohamed Idha Mbarak not having been properly represented for determination of that contractual proprietary interest. 4. The Defendant shall vacate and deliver vacant possession of Mombasa/Block XLV/129 within ninety (90) days from the date of this judgment. 5. In default of compliance with order (c), the Plaintiffs shall be at liberty to proceed with lawful eviction in accordance with the applicable law, upon expiry of the ninety-day period. 6. The Plaintiffs are awarded KShs. 100,000 as general damages for trespass. 7. The claim for mesne profits at KShs. 10,000 per month is dismissed for want of proof. 8. In view of the mixed outcome of the litigation, the unusual manner in which the original Defendant's death affected the proceedings, and the fact that each party has succeeded on some substantial issues and failed on others, each party shall bear its own costs. Obiter For avoidance of doubt, this judgment determines the Defendant Salim Idha Mbarak's personal entitlement to occupation. It does not purport to administer the estate of Mohamed Idha Mbarak, appoint a representative of that estate, or determine any question of succession to Mohamed's estate that properly falls for determination in succession proceedings. It is so ordered. **DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026.** **………………………..** **HON.E.M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**