https://new.kenyalaw.org/akn/ke/judgment/keca/2026/924

Kenya United Steel Company (2006) Ltd v Ahmed & another (Civil Appeal E141 of 2022) [2026] KECA 924 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 924 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E141 of 2022 KI Laibuta, GW Ngenye-Macharia & SG Kairu, JJA May 15, 2026 Between Kenya United Steel Company (2006) Limited Appellant and Hamed Mohamed Ahmed 1st Respondent Ahmed Mohiddin 2nd Respondent (Being an appeal from the Judgment and Decree of the Environment and Land Court of Kenya at Mombasa (A. Omollo, J.) delivered on 31st October 2017 in ELC Case No. 470 of 2011 ? 470 of 2011 ) Judgment 1.The instant appeal arises from the Judgment and Decree of the Environment and Land Court at Mombasa (the ELC) (A. Omollo, J.) delivered on 31st October 2017 in determination of ELC Case No. 470 of 2011. 2.The precis of the suit leading to the impugned judgment and decree is that, by a plaint dated 24th August 2011 and amended on 1st September 2011, the 1st respondent herein, Ahmed Mohamed Ahmed, sued the 2nd respondent (Ahmed Mohiddin) and the appellant (Kenya United Steel Company (2006) Limited) praying for:“a.A Declaration that the Wakf created over the land known as Plot No. 884 (Original 780/I) of Section VI M.N is null and void ab initio as it offends the Rule against perpetuity for failing to provide for charity;b.An Order to vest the land in the name of the deceased settler, Asila binti Mwijabu;c.An Order to nullify all the subsequent transactions over the subject land;d.Costs of the suit;b.Any other and further relief [the] honourable Court [deemed] fit to grant.” 3.The 1st respondent’s case was that he was suing as the representative of the heirs of the late Asila binti Mwijabu (the deceased); that, at all times, the deceased was the registered proprietor of the parcel of land known as Plot No. 884 (Original 780/I) of Section VI M.N (the suit property); that, by an instrument of Waqf dated 19th August 1943, the deceased settlor consecrated the suit property as a Waqf and declared that the income derived therefrom be divided in equal shares among her five children as well as any other children that may thereafter be born to her and one Ahmed bin Sheikh Makame; and that the deceased appointed Ahmed Sheikh Makame as the first Mutawali (trustee) of the suit property and directed that, upon his death during her lifetime, she would act as trustee, failing which the eldest male or female beneficiary entitled to a share in the income of the Waqf would be designated as trustee, provided that such person was qualified to serve as a Mutawali in accordance with Shariah law. 4.The 1st respondent further averred that the original trustee as well as the beneficiaries named in the Waqf Deed had since died, and that they were survived by 33 beneficiaries; that the eldest beneficiary, Mohidin Mohamed, who was registered as trustee at the material time, purported to lease the suit property by a Lease dated 14th January 1969 to Ram Piyari and Kubra Mohamedali Chagpar (the Lessees) for a term of 99 years from 1st January 1968 at the rent and terms set out therein; and that, by various instruments, the lease was ultimately assigned to the appellant company, which now holds it for the remainder of the term of 99 years. 5.According to the 1st respondent, the 2nd respondent (Ahmed Mohiddin) was sued as the eldest beneficiary of the Waqf, and who was entitled to be appointed as Trustee thereof. The 1st respondent contended that the Waqf created over the suit property was bad in law, null and void ab initio for failing to provide for a charitable object, and for offending the rule against perpetuity; that all the rent transactions made pursuant to the Waqf Deed were null and void; and that the suit property ought to devolve to all the beneficiaries of the deceased’s estate in accordance with Islamic law. 6.The 2nd respondent neither entered appearance nor filed a defence in the suit. 7.On its part, the appellant filed a Defence dated 1st November 2011 denying that the 1st respondent had locus standi to file the suit, and stating that it would raise a preliminary objection to the entire suit in limine on the following grounds:“a.The suit is time barred on the face of it as the Wakf dated 19th August 1943 was registered at the Land Titles Registry on 23rd August 1943. Any claim to challenge the validity of the Wakf became time barred on 19th August 1949 by virtue of section 20 of the Limitation of Actions Act.b.Any action to recover land is time barred.c.The 1st respondent has no locus standi to bring this suit as he is not the legal representative of the estate of the late Asila Binti Mwijabu. He is not registered as the representative of the deceased in accordance with section 54 of the Registration of Titles Act - Chapter 281 of the Laws of Kenya.d.The suit is fatally defective for not enjoining the Wakf Commissioners of Kenya as Defendants.e.The suit seeks to infringe Article 40 of the Constitution that permits the 2nd Defendant to acquire and own property in Kenya.g.The 1st respondent is not a trustee of the Wakf dated 19th August 1943 and lacks legal capacity to file this suit.f.No orders can be made in the absence of financial institutions which have legal charges over the suit premises.” 8.The appellant contended that the absence of a charitable benefit could not of itself invalidate a Waqf duly registered in compliance with section 4 of the Wakf Commissioners Act, 1951 (repealed); that the rule against perpetuities was not applicable to the Waqf created and registered by the deceased settlor; that the 99-year Lease dated 14th January 1969 was consented to by the Wakf Commissioners of Kenya on 1st January 1969 in accordance with section 14 of the repealed Wakf Commissioners Act, 1951 (hereinafter “the repealed Act”); that the lessor agreed that the lessees would hold and enjoy quiet possession of the suit premises without interruption by the lessor or any person claiming under or in trust for him; that, pursuant to the Lease, the lessees and their assigns subsequently transferred the suit property to the appellant on or about 25th January 1969; and that the leased property was sold to the appellant in December 2006 by Kenya Commercial Bank Limited in exercise of its statutory power of sale. 9.The appellant further averred that, between 1969 and 2011, the leased property had been charged to various banking institutions; that the current subsisting charges included a Charge to Standard Chartered Bank of Kenya dated 14th March 2011 to secure a sum of Kshs. 700,000,000; and a Charge to Eastern & Southern African Trade and Development Bank dated 26th July 2011 to secure a loan of USD 2,500,000; that, pursuant to section 46 of the Registration of Titles Act, the legal charges conferred absolute protection to the aforementioned financial institutions; and that no orders could be made against the financial institutions in view of the fact that they could not be condemned unheard. The appellant urged the trial court to dismiss the suit with costs. 10.In its reply to the appellant’s defence dated 17th November 2011, the 1st respondent reiterated all the averments in the plaint and asserted that he had locus standi to file the suit as a beneficiary of the deceased settlor’s estate; that he was entitled to inherit the same together with the other heirs; and that he did not require letters of administration to sue in that capacity. The 1st respondent denied that the suit was time barred or fatally defective for infringing Article 40 of the Constitution. He contended that the 2nd respondent acquired a leasehold interest over the suit property in 2006; and that his cause of action was continuing; and that, therefore, the suit could not be termed as barred by the statute of limitation. 11.The 1st respondent further contended that the very fact that the Wakf Commissioners consented to the lease of the suit property did not of itself validate the Waqf, which was void ab initio; that, in any event, no consent to charge was sought by the Trustee of the Waqf, thereby rendering the Charge Instruments thereby created defective, null and void; that the appellant’s rights had been acquired through the invalid Waqf and, therefore, contravened the provisions of Article 40(6) of the Constitution; and that the technical objections raised in the appellant’s Defence were frivolous, vexatious, and offended Article 159(2) (d) and (e) of the Constitution. In view of the foregoing, the 1st respondent urged the court to dismiss the Defence and enter judgment in his favour as prayed in the plaint. 12.The suit having been heard on 3rd October 2016 and 26th April 2017, the ELC (A. Omollo, J.) delivered the impugned judgment dated 31st October 2017. In its decision, the trial court held that the 1st respondent had locus standi to institute the suit in his capacity as the elder beneficiary, the eldest beneficiary having abdicated his responsibility in that regard; and that the suit was not time-barred as the Waqf was intended to benefit the settlor’s descendants in perpetuity. In addition, the court found that the 1st respondent had shown that the Waqf Deed as made did not comply with the provisions of section 4 of the repealed Act, which required the Waqf to provide for the poor, or for a charitable purpose. Consequently, the court declared that the Waqf was invalid and entered judgment for the 1st respondent as prayed in paragraph 16(a), (b), (c) and (d) of the plaint. In effect, the trial court, inter alia, nullified the Waqf for the reason that it offended the Rule against perpetuity, and for failing to provide for a charitable object. In addition, it gave orders to vest the land in the name of the deceased settler, and to nullify all transactions subsequent to the Waqf. 13.Aggrieved by the trial court’s judgment, the appellant moved to this Court on appeal on the following grounds, namely that:“1.The Learned Judge erred in failing to hold that the suit was time barred by virtue of the Limitations of Actions Act.2.The Learned Judge erred in holding that the Judgment could be entered as sought, even though it affected parties that were not made parties to the suit.3.The Learned Judge erred in holding that the 1st respondent has legal capacity to maintain the suit.4.The learned Judge failed to consider and properly apply the consequence of the Wakf in issue having been duly registered under the Registration of Titles Act and what that meant to third parties who relied on registration.” 14.On the grounds aforesaid, the appellant prays that the impugned judgment and all consequential orders be set aside; and that the respondents do bear the costs of the appeal. 15.In support of the appeal, learned counsel for the appellant, M/s.MKJ Advocates LLP, filed written submissions dated 2nd July 2025 followed by written submissions dated 19th September 2025 in rejoinder to submissions filed by counsel for the respondents. 16.In rebuttal, learned counsel for the 1st respondent, M/s. Khatib & Company, filed their written submissions and a list of authorities dated 15th September 2025 while, on their part, learned counsel for the 2nd respondent, M/s. V. M. Kamau, filed written submissions dated 30th September 2025. 17.This Court’s mandate on 1st appeal was espoused in Ng’atiFarmers’ Co-Operative Society Ltd v Ledidi & 15 Others [2009] KLR 331 as follows:“On a first appeal from the High Court, the Court of Appeal should 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 that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 18.However, we are conscious as cautioned by the predecessor to this Court in Peters v Sunday Post Ltd [1958] EA 424 that:“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution. It is not enough that the appellate court might itself have come to a different conclusion.” 19.In our considered view, the issues that commend themselves for our determination are: (i) whether the 1st respondent had the legal capacity to institute the suit; (ii) whether the suit was time-barred under and by virtue of the statute of limitation; (iii) whether the learned Judge was at fault in holding that the Waqf in issue was invalid; (iv) whether the lease or other dispositions contracted by the Mutawali or other parties are legally binding on the Waqf property; and (v) whether the learned Judge erred in entering judgment as prayed notwithstanding the fact that the impugned judgment and the consequential orders affected persons not joined as parties in the suit. 20.Pronouncing herself on the 1st issue as to whether the 1st respondent had the legal capacity to institute the suit, the learned Judge had this to say:“14.From the above definition of what is a Wakf and the provisions within the Wakf deed on the appointment of a trustee, the plaintiff did not in my opinion need to obtain letters of administration of the estate of Asila binti Mwijabu or authority of the other beneficiaries to bring this suit. In my opinion and I so hold that the plaintiff needed only to demonstrate that he is a beneficiary and whether he is the eldest or next eldest. He sued the 1st defendant whom he said was the eldest beneficiary following the death of the 1st defendant’s father Mohidin Mohamed who was the last trustee. The 1st defendant did not take up these responsibilities under the Wakf. From the list of beneficiaries in paragraph 6 of the plaint, the plaintiff appears to be the next eldest male beneficiary of the Wakf. The 1st defendant did not participate in these proceedings to controvert the lineage as set out by the plaintiff.For this I find that the plaintiff has locus to bring the suit by virtue of being a beneficiary and an elder beneficiary, the eldest having abdicated to take up his role.” 21.Taking issue with the learned Judge’s decision in this regard, counsel for the appellant submitted that the 1st respondent’s suit sought to vest the property in the name of the deceased settler, which showed that the claim was pursued on behalf of the deceased and ultimately for the benefit of her estate; that it is a well-established principle of law that only a duly appointed personal representative, either as an administrator or executor, is permitted to bring or defend legal proceedings on behalf of a deceased person’s estate; and that, in the absence of a grant of letters of administration or probate, any person purporting to act on behalf of the deceased’s estate lacks locus standi, thereby rendering the proceedings fatally defective. 22.To bolster their submissions, counsel cited the case of Trouistik Union International & another v Jane Mbeyu & another [1993] KECA 89 (KLR) where this Court held that the Law of Succession Act confers the power of agitating a cause of action concerning the estate of a deceased on personal representatives only; that, in the case of a deceased who died intestate, the only person who can answer the description of a personal representative is the administrator of the estate of the deceased; and that an administrator means a person to whom a grant of letters of administration has been granted under the Law of Succession Act. 23.Counsel further submitted that it is not in dispute that the 1st respondent is not the personal legal representative of the deceased’s estate, and that he had not demonstrated that he possesses a grant of representation in respect of the estate. According to counsel, the claim was instituted without locus standi and ought to have been struck out at the earliest opportunity. Counsel cited section 54 of the Registration of Titles Act, arguing that the Registration of Titles Act was in force and applicable when the suit was filed, and which implied that the right of action on behalf of a trust vested on the registered trustee only. Counsel contended that the 1st respondent was not the registered Trustee of the Waqf, and that there was no evidence that the suit had been brought with the consent and authority of the other beneficiaries of the Waqf. By reason of the matters aforesaid, counsel urged us to allow the appeal with costs. 24.On his part, counsel for the 1st respondent submitted that the 1st respondent brought the case on his behalf and on behalf of other beneficiaries of the Waqf, having obtained leave of the court granted on 26th August 2011; that a beneficiary of a Waqf need not be an administrator of the estate of the deceased settlor to file suit against any person in respect of a Waqf property; that a beneficiary under a Waqf has an automatic right to a cause of action in the Waqf property; and that the Waqf Deed in question had expressly provided the terms on which the interest would pass, i.e. the eldest male or female beneficiary of the Waqf at the time entitled to share in the income of the said Waqf, provided always that he or she was a suitable person to be a Mtawali (trustee) under Shariah; and that, if the eldest male or female beneficiary shall be unfit, then the next eldest beneficiary shall be a Mutawali. In conclusion, counsel submitted that the 1st respondent had the locus standi to institute proceedings leading to the impugned judgment and orders. For the foregoing reasons, they urged us to dismiss the appeal with costs. 25.Likewise, counsel for the 2nd respondent submitted that the 1st respondent, as a son and heir within the line of beneficiaries, had the requisite standing to move the High Court; that this position has long been settled in case law and, in particular, in Kusambai Gulamhussein Jaffer Ramji v. Jaffer Mohamed [1957] 1 EA 699 where the beneficiaries were held to be competent to challenge the intermeddling with estate property; that the 1st respondent sought and obtained leave of the High Court to institute proceedings on 26th August 2011; and that, accordingly, locus was properly established. 26.In our considered view, the decisive issue in the instant appeal is the legal status of the Waqf created by the deceased settlor in respect of which the 1st respondent was only required to demonstrate sufficient interest in the objects of the Waqf so as to enjoy the requisite locus standi to institute the suit in which he sought, inter alia, a declaration that the Waqf was not valid under Islamic law. To our mind, he sufficiently demonstrated his interest in the Waqf both as a beneficiary and the next eldest beneficiary after the 2nd respondent who had apparently abdicated his role as Mutawali (trustee) of the Waqf. Accordingly, we hold that the 1st respondent had locus standi to institute proceedings culminating in the impugned decision. 27.We reach this conclusion cognisant of the fact that a finding and declaration that the Waqf was invalid would necessarily result in the conclusion that the deceased settlor failed to properly extinguish her proprietary rights in the suit property and absolutely transfer ownership thereof to the Almighty. However, it is not lost on us that a Waqf Ahli, which is in the nature of a family perpetuity, an endowment or dedication (as is the case here) is exempt from the strict rules that govern charitable or religious Waqfs under the Shariah on the basis of which the 1st respondent purports to impute invalidity of the Waqf. Our reading of the concluding words in section 4(1) of the repealed Act which in part provides that “… in any case in which the personal law of the person making the wakf so permits” lends recognition as valid a Waqf in the nature of a family perpetuity. 28.We also take to mind the general nature of a charitable or religious waqf as elucidated by the Supreme Court of India in Nawab Zain Yar Jung and Others v The Director of Endowments and Others 1963 AIR 985 in the following words:… the Muslim law relating to trusts differs fundamentally from the English law. According to Mr. Ameer Ali [of the Privy Council in Vidya Varuthi Thirtha v Balusami Ayyar and others [1921] UKPC 78], ‘the Mohammadan laws owes its origin to a rule laid down by the Prophet of Islam;’ and means ‘the tying” up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings.’ As a result of the creation of a wakf, the right of wakif is extinguished and the ownership is transferred to the Almighty.” 29.On the afore-cited authority, it follows that further orders would be necessary to give effect to a declaration that the Waqf was invalid, such as an order vesting the property in the estate of the deceased (as did the High Court in Salima and another v Ahmed [1971] 1 EA 573); or a declaration that the suit property forms part of the heritable estate of the deceased (as did the predecessor to this Court in El- Raimi & others v Wakf Commissioners, Zanzibar [1946] EACA 7). 30.In our considered view, none of the orders sought by the 1st respondent involved administration of the deceased settlor’s estate under the Law of Succession Act so as to require that he (the 1st respondent) first obtains a grant of representation to establish the requisite locus standi to file suit. 31.We form this view cognisant of the fact that the 1st respondent filed suit with leave of the trial court to assert beneficial interests in the Waqf property on his own behalf and on behalf of other beneficiaries. Consequently, he was by no means acting as an administrator of the estate of the deceased settlor. In the circumstances, the 1st respondent had an automatic right as well as the requisite locus standi to sue and enforce the beneficial interests in the Waqf property under and by virtue of the Waqf Deed. 32.Turning to the 2nd issue as to whether the 1st respondent’s suit was time-barred under and by virtue of the Limitation of Actions Act (Cap. 22) the learned Judge had this to say:“15.The Wakf deed is dated 19th August 1943 with the 1st trustee Ahmed bin Sheikh Makame appointed by the deed. Ahmed passed on 9th December 1968 as per the affidavit sworn by the 2nd trustee Mohidin Mohamed. The plaintiff pleaded that Mohidin Mohamed was the trustee until he died. This is not disputed because it is Mohidin who signed the lease for which the 2nd defendant is a beneficiary. 33.The right of action to the plaintiff would therefore accrue when the term of the next in line of trusteeship terminated ended. It is not declared in the pleadings when the 2nd trustee – Mohidin died. Since the issue of limitation was brought up by the 2nd defendant, it was incumbent upon them to prove that indeed the suit was time barred by specifying when the time began running as against the plaintiff interest. It is a rule of evidence that he who alleges must prove. However, assuming the time of death of Mohidin is known, the Wakf deed also dealt with the question of limitation. The donee of the land Asila binti Mwijabu stated the land was to benefit the persons named in the deed and the descendants of the said beneficiaries from generation to generation in equal shares. This means it benefits the descendants in perpetuity thereby a claim under this Wakf deed therefore cannot be said to be limited to a period of time.” 34.According to counsel for the appellant, the learned Judge failed to appreciate the nature of the 1st respondent’s claim which, in counsel’s view, was essentially for recovery of land, though framed as a challenge of the validity of the Waqf Deed. Counsel submitted that the reliefs sought by the 1st respondent constituted a claim for recovery of land, which was time-barred under Section 7 of Cap. 22, having been brought more than twelve years from the date the cause of action accrued; that the suit was time-barred on the face of it as the Waqf dated 19th August 1943 was registered at the Lands Titles Registry on 23rd August 1943; that any claim to challenge the validity of the Waqf became time barred on 19th August 1949 by virtue of section 20 of Cap. 22, which provides that actions by a beneficiary to recover trust property or in respect to breach of trust may not be brought after the end of six years from the date on which the right occurred; and that the learned Judge failed to appreciate that the cause of action, if any, arose either in 1943 when the Waqf was registered, or at the latest in 1969, when the leasehold interests were registered. 35.Counsel further submitted that the 1st respondent’s suit was not directed at a trustee or trustees for breach of their duty of care, but at the appellant, a third-party who acquired a leasehold interest through a lawful commercial transaction; and that the application of principles that govern trusts so as to divest a bona fide lessee of its property interest decades after the initial grant severely undermine the legal certainty that Cap. 22 seeks to protect. Counsel cited the case of Mtana Lewa v Kahindi Ngala Mwagandi [2015] KECA 532 (KLR) for the proposition that a frequent justification for limitation periods generally is that people should not be able to sit on their rights indefinitely; that limitation periods for land claims exist to ensure that plaintiffs act promptly, protect defendants from loss of evidence, and prevent the cruelty and injustice of reviving long-dormant claims; and that the law of limitation does not amount to arbitrary deprivation of land because it is a protective mechanism that guards against stale claims, promotes active land use, supports economic growth, facilitates conveyancing, and upholds equitable entitlements gained through long-standing possession. 36.Counsel contended that the market value of the improvements made on the land after registration of the lease (including construction of a rolling mill, steel products factory, smelting paint, two storey administration block, staff canteen and an oxygen plant) is in the excess of a billion shillings; and that a claim to recover the suit land filed more than 30 years after developments commenced is not only barred by the statute of limitation, but also defeated by equity under the doctrines of laches, estoppel and acquiescence. 37.In rebuttal, counsel for the 1st respondent submitted that the learned Judge fully appreciated the nature of the claim as he had considered the Waqf Deed which gave rise the leasehold interest owned by the appellant; and that, if the Waqf Deed was a nullity, then any transaction arising therefrom would also be a nullity. 38.With regard to the alleged statute bar under Cap. 22, counsel submitted that the cause of action arose when the appellant acquired the leasehold interest in the suit property, and not when the Waqf Deed was made; that entry No. 25 on the Title shows that the appellant’s interest was registered on 23rd May 2006; that time started to run on 23rd May 2006; and that, when the suit was filed in the High Court on 24th August 2011, the 6-year limitation period had not lapsed. 39.Counsel further argued in the alternative that, as stated by the trial Court, the right of action accrued when the 2nd Trustee took up the appointment; that the appellant had not tendered any evidence to establish when the 2nd Trustee died so as to establish the alleged period of limitation; that the Waqf clearly provided that it would benefit the person named therein and the descendants of the said beneficiaries from generation to generation; that this express provision constituted a perpetuity of interest under the Waqf; and that, therefore, such a claim as instituted by the 1st respondent could not be limited by time with regard to the enforcement of beneficial interests under the Waqf. 40.Learned counsel for the 2nd respondent did not submit on this issue either way. 41.The appellant’s argument is that the 1st respondent’s suit falls within the provisions of section 20 of the Limitation of Actions Act, which prescribes the periods of limitation of actions concerning trust property as follows:20.Actions concerning trust property1.None of the periods of limitation prescribed by this Act apply to an action by a beneficiary under a trust, which is an action—a.in respect of a fraud or fraudulent breach of trust to which the trustee was a party or privy; orb.to recover from the trustee trust property or the proceeds thereof in the possession of the trustee or previously received by the trustee and converted to his use.2.Subject to subsection (1), an action by a beneficiary to recover trust property or in respect of any breach of trust (not being an action for which a period of limitation is prescribed by any other provision of this Act) may not be brought after the end of six years from the date on which the right of action accrued:Provided that the right of action does not accrue to a beneficiary entitled to a future interest in the trust property, until the interest falls into possession.3.A beneficiary against whom there would be a good defence under this Act may not derive a greater or other benefit from a judgment or order obtained by another beneficiary than he could have obtained if he had brought the action and this Act had been pleaded in defence. 42.Section 2 of the Limitation of Actions Act defines a “trust” as having “the same meaning as in the Trustee Act (Cap. 167). The Trustee Act defines a “trust” and “trustee” at section 2 as follows:“trust” does not include the duties incident to an estate conveyed by way of mortgage, but, with this exception, the expressions “trust” and “trustee” extend to implied and constructive trusts, and to cases where the trustee has a beneficial interest in the trust property, and to the duties incident to the Trustee office of a personal representative, and “trustee” where the context admits, includes a personal representative, and “new trustee” includes an additional trustee; 43.The expressions “trust” and “trustee” as defined in section 2 of the Trustee Act do not perfectly align with the role of a Mutawali of a waqf even though section 2 of the repealed Act defined a “trustee” essentially in similar terms but with specific and exclusive reference to waqf property. However, a waqf cannot be equated with an implied or constructive trust even though the terms “trust” and “trustee” are at times used albeit loosely with reference to a Waqf and Mutawali respectively. Be that as it may, a Mutawali holds no beneficial interest in the waqf property, but merely serves as a manager or superintendent of the property with limited usufructuary control. Put differently, a Mutawali is responsible for managing the property for the intended beneficiaries, and for applying the income or usufructs strictly in accordance with the objects set out by the settlor. In any event, the beneficial interests enforceable under the Waqf last for the life of the Waqf itself or in perpetuity. Accordingly, the peculiar circumstances of this case exclude it from the limitations set out in section 20 of Cap. 22, except with regard to certain transactions. 44.In Sri Vidya Varuthi Thirtha Swamigal v Balusami Ayyar and others [1921] UKPC 78, the Privy Council affirmed the distinction between the English law conception of trusteeship and the managerial role in endowments or dedications under Islamic or Hindu law; and provided persuasive guidance on how to approach the issue of limitation where an alienation by a Mutawali is challenged by a successor, holding that:“It would, in their Lordships’ opinion, be a serious inroad into their rights if the rules of the Hindu and Mohammedan laws were to be considered with the light of the legal conceptions borrowed from abroad, unless perhaps where they are absolutely, so to speak, in pari materia ….Neither under the Hindu Law nor in the Mahommedan system is any property “conveyed” to a shebait or a mutawalli, in the case of a dedication. Nor is any property in the case of a dedication.Nor is any property vested in him; whatever property he holds for the idol or the institution he holds as manager with certain beneficial interests regulated by custom and usage. Under the Mahommedan Law, the moment a wakf is created all rights of property pass out of the wakif, and vest in God Almighty. The curator, whether called mutawalli or sajjadanashin, or by any other name, is merely a manager. He is certainly not a ‘trustee’ as understood in the English system ….From the above review of the general law relating to Hindu and Mahommedan pious institutions it would prima facie follow that an alienation by a manager or superior by whatever name called cannot be treated as the act of a “trustee” to whom property has been “conveyed in trust” and who by virtue thereof has the capacity vested in him which is possessed by a “trustee” in the English law ….” 45.In the present case, the reliefs sought in the 1st respondent’s suit, including orders to invalidate the 99-year lease over the suit property previously granted by a previous Mutawali as well as all subsequent transactions, were premised on the trial court finding that the Waqf in issue was invalid. Hence the prayers in this order: “a) A Declaration that the Wakf created over the land known as Plot No. 884 (Original 780/I) of Section VI M.N was null and void ab initio as it offends the Rule against perpetuity for failing to provide for charity; b) An Order to vest the land in the name of the deceased settler, Asila binti Mwijabu; c) An Order to nullify all the subsequent transactions over the subject land ….” To our mind, this does not, strictly speaking, constitute an action for the recovery of land for which the limitation period is prescribed under section 7 of Cap. 22 as urged by the appellant. 46.We take to mind the fact that the limitation period prescribed under section 7 of Cap. 22 applies to all actions for the recovery of land with no exemption for actions involving property comprised in a waqf or any other endowment or dedication whether for religious or charitable purposes, or purely for an endowment or dedication for the benefit of members of a specified family for generations to come, as was the case here, provided that such action is taken by a person (such as a Mutawali), who would be entitled to bring such an action under an independent course of action. It is noteworthy, though, that the circumstances of this case differ sharply. What the 1st respondent sought was to have the Waqf declared as invalid and, consequently, obtain orders to vest the Waqf property in the settlor’s estate and render all subsequent transactions invalid. 47.On the other hand, and in so far as the appellant’s right to the suit property crystalised in 2006 when it was sold to it by the Kenya Commercial Bank Ltd in exercise of the bank’s statutory power of sale, 12 years had not lapse by the time the 1st respondent filed suit in 2011 seeking invalidation of the appellant’s lease and the consequential vesting orders. Moreover, section 9 of Cap. 22, which specifies how the right of action accrues based on either the date of dispossession, date of discontinuance of possession, or the date on which an assurance of an interest takes effect, does not strictly apply to the circumstances of this case. Simply put, the recovery of the Waqf property from the appellant could only have been consequent upon invalidation of the Waqf as prayed. 48.In any other case, and in the context of claims under a Waqf, section 9(3) would ordinarily apply to an action brought by successors to a manager of a Waqf, and the right to challenge the alienation or transfer of the waqf property by the previous manager would accrue upon that manager’s death, resignation or removal. In this case, it is not clear when the last Mutawali resigned or abdicated his authority so as to pave way for the 1st respondent to sue for the recovery of the Waqf property under an independent cause of action. Notably, the 1st respondent was not suing in the capacity of a successor to the Mutawali, but as a beneficiary. In our considered view, the 1st respondent had the right of action as a beneficiary to seek invalidation of the Waqf and all consequential orders aforesaid without limitation of time. In effect, his suit was by no means statute-barred. 49.In Sri Vidya Varuthi Thirtha Swamigal v Balusami Ayyar and others (supra), the Privy Council illustrated, through a similar case, how such a right of action would accrue:“…. In Mahomed v. Ganapati I.L. 13 Mad., 277 a lease was granted by the dharmakarta of a temple; and the suit to recover the leased lands was brought by his successor in office. The defence was limitation, running from the date of alienation. Mr. Justice Sheppard (Muthusaini Ayyar, J. concurring) held as follows:-In the present case, though the plaintiff may in point of time have succeeded the dharmakarta who made the alienation, he does not derive his title from that dharma karta and is, therefore, not bound by his acts. Subject to the law of limitation, the successive holders of an office, enjoying for life the property attached to it, are at liberty to question the dispositions made by their predecessors … and it is equally clear that time runs against the successor who challenges his predecessor’s disposition, not from the date of the disposition, but from the date of the predecessor’s death, when only the successor became entitled to possession. Accordingly, Raman Pujari having died so recently as 1885, the plaintiff’s suit cannot be barred by limitation.’” [Emphasis ours] 50.Having considered the afore-cited persuasive judicial authorities and statute law, we find that the learned Judge was at fault in concluding that no period of limitation could apply to actions brought under the Waqf Deed for the simple reason that the deceased settlor had stipulated that the Waqf would benefit the named beneficiaries and their descendants in perpetuity. To the contrary, claims over property the subject of a disposition in the course of administration of a waqf is liable to limitation under Cap. 22 as demonstrated in the afore-cited case of Sri Vidya Varuthi Thirtha Swamigal v Balusami Ayyar and others (supra). However, such limitation would be dependent on the capacity on which the suit is instituted, as well as the cause of action and the nature of the relief sought. Most important, time would begin to run from the day the person suing succeeds the Mutawali, as the case might be. 51.It is not lost on us that the gravamen of the 1st respondent’s suit was that the Waqf in issue was invalid for want of a charitable object and the fundamental element of perpetuity which, if found in his favour, would invalidate all dispositions made in purported administration of the Waqf. As already observed, the 1st respondent sued the appellant and other respondents in his capacity as a beneficiary of the Waqf, whose validity was liable to challenge at any time and without limitation under Cap. 22. To our mind, it matters not that such invalidity would have had a bearing on transactions in respect of which suits would ordinarily be required to be instituted within a specified period of limitation. Accordingly, we find that the 1st respondent was entitled to bring his suit at any time in his capacity as a beneficiary, and in so far as he sought a declaration that the Waqf was invalid. It is also instructive that he did not purport to be the successor of the previous Mutawali so as to be bound by the timelines prescribed in Cap. 22. In effect, the rest of the reliefs sought were merely consequential. Accordingly, the 1st respondent was not bound to bring his claim within twelve years from the date of the death of Mohidin Mohamed (the Mutawali who leased the suit property under a Lease dated 15th January 1969) or from the date on which the 2nd respondent abdicated his authority as Mutawali. 52.Notably, the appellant pleaded limitation based on the mistaken belief that the suit was time barred with reference to the date of registration of the Waqf and the provisions of sections 7 and 20 of Cap. 22. In the circumstances, the learned Judge’s finding that the suit was barred by the statute of limitation cannot be sustained. 53.On the 3rd issue as to whether the Waqf was invalid or illegal for failing to provide for a charitable object, the learned Judge held that:“18.The issue is whether there is proof of the personal law of the maker of the Wakf. At page 2 of the Wakf deed it is stated thus under the appointment of trustee, ‘provided always that he/she is a suitable person to be a mutawali or trustee under the Shariah ….’ This Court takes judicial notice that Shariah is a known Muslim law. Therefore, the maker of the deed having specified that suitability of the trustees should be in accordance with the Shariah, clearly disclosed her personal law.19.The other issue is whether the registration of the Wakf deed under the Registration of Titles Act excluded the deed from compliance with the requirements of section 4 of CAP 109. This issue was just dropped by the 2nd defendant without laying any basis. I will not delve into what the 2nd defendant intended. The 2nd defendant further relied on the provisions of section 5 of CAP 109 that provides, ‘the Act does not affect any right or interest that vested prior to its commencement.’ Unfortunately, the lease which vested an interest upon the 2nd defendant was signed in January 1969 which was after the commencement of CAP 109 which Act came into operation in 1951. Hence the provisions of section 5 does not aid the 2nd defendant.20.In conclusion, I am satisfied that the plaintiff has shown that the Wakf deed as made did not comply with the provisions of section 4 (1) of CAP 109 and the proviso thereto does not apply as the maker’s personal law is Sharia.” 54.Finding fault in the learned Judge’s decision, learned counsel for the appellant submitted that the Waqf was valid under Section 4 of the repealed Act, and that the trial court erred in holding otherwise. Counsel submitted that section 4 of the repealed Act allows for a waqf that does not contain an express clause reserving the ultimate benefit for the poor, or for a religious or charitable purpose, as long as the personal law of the person who created the waqf does not require any such provision. 55.According to counsel, it has not been shown, nor has it ever been claimed, that the personal law of the deceased required such a clause. Counsel cited the persuasive decision in Ali Said Mohamed & another v Wakf Commissioners [2012] KEHC 3454 (KLR) where the court was in agreement with the proposition that “…this court is not entitled to hold that the use of the word ‘Wakf’ in itself gives rise to an implied ultimate gift in favour of the poor.” 56.Counsel further took issue with the learned Judge’s presumed judicial notice that the personal law applicable in this case is Shariah law, based solely on the use of the word “Shariah” in the Waqf Deed. According to counsel, the learned Judge erred in failing to explain which specific school of Islamic law applies to the Waqf; whether Shariah law applies in the first place; or how such a school of thought expressly requires the provision of a charitable object to lend formal validity to a Waqf. Counsel contended that Shariah law is not monolithic, and that there are multiple recognized schools of thought, each with its own interpretation of the requirements for a valid Waqf. 57.In addition to the foregoing, counsel drew our attention to the Hanafi school of thought that is widely followed in Kenya, and which holds that a waqf does not need to include a charitable or public benefit in order to be considered as valid. Counsel submitted that section 4 of the repealed Act does not apply to the instant Waqf because it was created and registered in 1943 prior to the commencement of the repealed Act in 1951. Counsel contended that, at the time the Waqf was created, it was properly registered under the Registration of Titles Act, which conferred legal recognition and protection to transactions within the Waqf and with third parties, such as the appellant. 58.In conclusion, counsel submitted that the application of Section 4 of the repealed Act retrospectively would amount to rewriting the legal terms under which the Waqf was established; that doing so would unjustly interfere with vested rights; and that it would also contradict the principle of legal certainty and fairness. Counsel cited the case of In re Estate of Seif Abdallah Mohamed (Deceased) [2024] KECA 1826 (KLR), submitting that, in that case, this Court upheld a Waqf created in 1942 prior to the enactment of the repealed Act in 1951; and held that such waqfs must be evaluated under the law applicable at the time of their creation. 59.On his part, counsel for the 1st respondent submitted that, if a document registerable under any legal regime is null and void, it does not confer any rights or obligations; that, in this case, the Waqf Deed fell afoul of the provision of section 4(1) of the repealed Act; that, without a provision for a charitable object, the Waqf would be null and void, and would not confer any interest on the appellant; and that all the transactions predicated on the transfer by the Trustee of the invalid Waqf would be a nullity. 60.Counsel cited the case of Maalim v Shosi [2022] KECA 518 (KLR) to bolster their submission that a waqf declared for the benefit of the family of the donor or any other person will only be deemed valid if it meets the two-fold requirements set out in section 4(1) of the repealed Act: that it must be made in accordance with Muslim law; and that the ultimate beneficiary must expressly or impliedly be reserved for the poor or for other charitable purposes recognised by Muslim law, such as a religious, pious or charitable purpose of a permanent character. 61.In conclusion, counsel cited the case of Kenya Airways Limited v Satwant Singh Flora [2013] KECA 545 (KLR) for the proposition that no court may enforce an illegal contract or allow itself to be used as an instrument of enforcement of obligations allegedly arising from an illegal contract or transaction; and that it matters not whether the defendant pleaded the illegality. 62.On their part, learned counsel for the 2nd respondent submitted that it is trite law that a void foundation cannot sustain subsequent dealings; that the invalidity of the Waqf renders all derivative transactions null and void; that the lease executed by the Waqf’s trustee and subsequently assigned to the appellant cannot be shielded as bona fide; and that the lessor was merely a trustee, and had no authority absent the beneficiaries’ consent. 63.Counsel cited the persuasive decision of the High Court in Bob Njoroge Ngarama v Mary Wanjiru Ngarama & another [2014] KEHC 7162 (KLR) for the proposition that beneficiaries can trace estate assets misapplied into the hands of third parties, unless such parties are bona fide purchasers for value. 64.We take to mind the fact that the statute law in force at the material time when the Mutawali of the Waqf leased the suit property in 1969 was the repealed Act, which replaced the Wakf Commissioners Ordinance, 1900 upon its enactment in 1951. The repealed Act set out the elements of a valid Waqf in section 4 as follows:4.Validation of wakfs1.Every wakf heretofore or hereafter made by any Muslim which is made, either wholly or partly, for any of the following purposes, that is to say:a.for the benefit, either wholly or partly, of the family, children, descendants or kindred of the maker or of any other person; orb.if the maker of the wakf is in Ibathi or Hanafi Mohammedan, for his own maintenance and support during his lifetime, is declared to be a valid wakf if—i.it is in every other respect made in accordance with Muslim law; andii.the ultimate benefit in the property the subject of the wakf is expressly, or, in any case in which the personal law of the person making the wakf so permits, impliedly, reserved for the poor or for any other purpose recognised by Muslim law as a religious, pious or charitable purpose of a permanent character:Provided that the absence of any reservation of the ultimate benefit in property the subject of a wakf for the poor or any other purpose recognised by Muslim law as a religious, pious or charitable purpose of a permanent character shall not invalidate the wakf if the personal law of the maker of the wakf does not require any such reservation.2.No wakf to which subsection (1) applies shall be invalid merely because the benefit in the property reserved by the wakf for the poor or any religious, pious or charitable purpose is not to take effect until after the extinction of the family, children, descendants or kindred of the maker of the wakf. 65.Tested against the afore-cited provisions of section 4 of the repealed Act, it is clear to us that the Waqf was expressly established “… for the benefit, either wholly or partly, of the family, children, descendants or kindred of the maker”; that it was made in accordance with Muslim law; and that, in any event, the absence of any reservation of the ultimate benefit in the waqf property for the poor or any other purpose recognised by Muslim law as a religious, pious or charitable purpose of a permanent character did not of itself invalidate the Waqf if the personal law of the maker of the Waqf did not require any such reservation. 66.We find nothing on record to suggest that the personal law of the deceased settlor required express provision of a charitable or religious object of a permanent nature. Indeed, a family waqf is not invalid merely because the public charitable benefit (such as for the poor) is postponed until after the extinction of the founder's family or descendants, as the case may be. Accordingly, its validity cannot be reasonably pegged on the absence of an express reservation in that regard. 67.For the avoidance of doubt, the “ultimate Benefit” Rule requires that for a private waqf (as was the case here) to be valid, the ultimate benefit must be reserved, either expressly or impliedly, for a permanent charitable, religious, or pious purpose. Moreover, support of one's family and descendants in perpetuity is recognized in Islam as a pious and charitable act (see Abul Fata Mahomed Ishak v Rasamaya Dhur Chowdhuri (1895) 22 Ind App 76 (PC); and Ali Said Mohamed & Another v Wakf Commissioners (supra), where the court persuasively applied statutory and Islamic law principles under the repealed Act, highlighting the principle that “the ultimate benefit… is expressly, or… impliedly, reserved for the poor or for any other purpose recognised by Muslim law as a religious, pious or charitable purpose of a permanent character”), provided that the intention to benefit is permanent. 68.Having drawn the foregoing conclusion, it would be remiss of us not to examine the legislative history underlying the enactment of the repealed Act and the formulation of section 4 thereof as elucidated by Prof. J. N. D. Anderson in his 1955 work titled Islamic Law in Africa (1st edn, Routledge 2010) at pages 92-99 and at Appendix D. The author notes that the repealed Act “… was made necessary by a recent decision of the Court of Appeal of East Africa”, namely, Fatuma binti Mohamed bin Salim Bakhshuwen & another v. Mohamed bin Salim Bakhshuwem (1949) 16 EACA 11 in which the predecessor to this Court held that a Shafi'i waqf in favour of the founder's two daughters and their children in perpetuity, and in the event of their total extinction for the benefit of certain other relations or, failing them, of three mosques, was void. This was on the basis that the Court was bound by Privy Council’s decision in the case of Abul Fata v. Russomoy (1894) 22 I.A., 76. The Court’s decision was subsequently upheld on appeal to the Privy Council in 1952. 69.The author further observes in Appendix D that the Privy Council’s ultimate decision in the Bakhshuwen case failed to reflect the doctrinal distinction between the Hanafi and Shafi’i sects with regard to what constitutes a valid Waqf. According to the learned author: -(4)…. It is, of course, true that there is no difference between the two schools in so far as both recognise family perpetuities as perfectly valid and enforceable, but the important distinction remains that whereas the Hanafis insist that such a waqf, to be valid, must end in a gift to some philanthropic or religious interest of a permanent character, the Shafi'is make no such stipulation whatever: instead, a Shafi'i waqf may be created for the benefit of any number, definite or indefinite, of generations of beneficiaries, without any ultimate dedication to charity at all. Since, therefore, so much stress was laid, in the Indian cases, on the fact that in waqfs which primarily constitute family perpetuities the ultimate gift to the poor, etc., is inadequate and "illusory", it would seem eminently reasonable to distinguish therefrom a case to be decided under a law which makes no condition regarding any gift whatever to the poor, whether immediate or ultimate, real or illusory. This consideration, however, appears never to have been brought to their Lordships' attention.(5)But it would also seem that the cases could well have been distinguished on more general grounds—i.e. on the essential difference (in several respects, and in the point at issue in particular) between the Muhammadan law as now administered in India and that law as applicable, e.g., in East Africa …. This was aptly expressed, in terms of the immediate problem, by Hamilton J. in the words:—"the law of waqf as originally understood by the Commentators and Muhammadan jurists has in India since the commencement of the latter half of last century been profoundly modified by the decisions of the Privy Council. A study of the question shows that while the Muhammadan law, uninfluenced from outside sources, permitted perpetuities and the erection of waqfs for family aggrandizement solely, the influence of English Judges and of the Privy Council has gradually encroached on this position . .Just so: but the law so developed, however reasonable and beneficial it may be, can scarcely lay any claim to "universality"; and it seems unnecessary, as well as unfortunate, that it should be held applicable in the Protectorate of Kenya, where it is not only contrary to the classical Shafi'i doctrine regarded as binding in this and other respects …, but also to local custom and practice.” 70.Turning to the intent of the provisions of section 4 of the repealed Act, the learned author notes at pages 93 - 94 that:“… the most interesting Ordinance in Kenya, from the point of view of Islamic law, is the new Wakf Commissioners [Act], 1951, which was shown to me in draft, and on which I commented extensively during my visit to Kenya in 1950 ….[Section 4 of the Act] follows, in broad outline, the pattern of all the corresponding legislation, designed as it is to restore the right of a Muslim to make a wakf in the form of a family perpetuity: but it is interesting to notice … that it differs from all the corresponding legislation elsewhere in making it clear, in the proviso to sub-section (ii), that no such reservation to a permanent charity at all, whether express or implied, is required in the case of those whose personal law does not require this …. This, again, was a point to which I called attention in my comments on the original draft, since the majority of Kenya Muslims are Shafi'is, and no such reservation is required by their law.” 71.In Amina binti Abdulla v. Sheha binti Salim (1954) 21 EACA 12, the predecessor of this Court (Sir Newnham Worley – VP) affirmed the legislative history and interpreted section 4 of the repealed Act as follows:“Prior to the enactment of Ordinance No. 30 of 1951, the Wakf we are now considering would quite plainly have fallen within the prohibition of the rule laid down by this court in Fatuma binti Salim Bakhshuwen v. Mohamed bin Salim Bakhshuwen (1949) 16 E.A.C.A. 11, and confirmed by the Judicial Committee, [1952] A.C. 1. It is not in dispute that this decision ran counter to the generally accepted view among Mohammedans as to the validity of such trusts or wakfs, and that the 1951 Ordinance was specially enacted to get over this decision and bring the law back into closer harmony with general Mohammedan jurisprudence. But there is no ground for saying that the legislature intended to, or did, restore the pure Mohammedan law of Arabia in its full force, and it is true to say that except so far as the decision in Bukshuwen’s case is expressly repealed by the 1951 Ordinance, it is still good law ….When to these considerations is added the provision in sub-s. (2) of s. 4 that no Wakf is to be invalid merely because the charitable gift over in the property dedicated is not to take effect until after the extinction of the ‘family, children, descendants or kindred of the maker’, it is to my mind sufficiently clear that the legislature intended to overrule the decision in the Bakhshuwen case only to the extent of validating Wakfs for the family and descendants of the maker himself; in other words, that they were prepared, in deference to Mohammedan sentiment, to set aside the rule against perpetuities to that extent, but not to the extent of validating Wakfs for the benefit of the descendants of strangers in perpetuity.” 72.It is common ground that the Waqf at the centre of the instant appeal was created for the benefit of the named beneficiaries and their descendants in perpetuity, but made no express reservation of the ultimate benefit in the Waqf property for the poor or for any other purpose recognised by Muslim law as a religious, pious or charitable purpose of a permanent character. The mainstay of the 1st respondent’s claim was that the Waqf, as created through the contested Waqf Deed, was void for failing to provide for a charitable object in terms of section 4(1) (ii) of the repealed Act. 73.In light of the legislative history behind the enactment of the repealed Act and the intent underlying section 4 thereof, particularly the proviso to section 4(1) thereof, we hold that no presumption can be made that the Waqf, on the face of it, was invalid for the reason that it did not expressly provide for any religious, pious or charitable purpose of a permanent character. Our foregoing analysis of statutory and judicial authorities leads to the inescapable conclusion that the charitable object may be implied or construed in accord with personal Islamic law that views a private family Waqf for the benefit of the testator’s descendants in perpetuity as charitable in its own right. We find nothing on record to suggest that the personal law of the deceased settlor required the inclusion of an express (as opposed to an implied) reservation in order to validate the Waqf as created. The 1st respondent was required to demonstrate that the deceased settlor belonged to a sect whose doctrine mandated such an express reservation, but failed to do so. We form this view cognisant of section 107 of the Evidence Act, which clearly affirms the principle that he who alleges the existence of any fact must prove it. 74.In view of the foregoing, we find that it was a misstep for the learned Judge to conclude that, by specifying that the suitability of the trustees be determined in accordance with Shariah, the settlor had clearly disclosed her personal law as being the Shariah; and that, therefore, the proviso to section 4(1) of the repealed Act did not apply to her Waqf. 75.In the absence of any evidence identifying the specific sect to which the deceased belonged, and in view of the Wakf Commissioners’ consent to the lease granted by the Mutawali then in charge, which suggests their satisfaction with the validity of the Waqf under the repealed Act, the only reasonable conclusion that can be drawn is that, on the balance of probabilities, the deceased’s personal law did not require such an express reservation under section 4(1) (ii) of the repealed Act; and that, on that basis, the Waqf was valid. And that settles the 3rd issue before us. 76.Turning to the closely related 4th issue as to whether the transactions contracted by the Mutawali and other parties over the Waqf property are enforceable at law, the appellant’s case is that they are. On their part, the respondents contend that all the transactions comprised of the 99-year lease and the subsequent Charges and other dealings in the suit property are unenforceable and that, therefore, the suit property should, by order, revert to the deceased settlor’s estate. 77.It is instructive that the Waqf did not expressly prohibit any particular dealings in the suit property. Neither did it specifically set out the powers of the Mutawali. The relevant part of the Waqf Deed reads as follows:“Whereas I, Asila binti Mwijabu being registered as the Proprietrix… of [the suit property] …. and Whereas I am desirous of effecting a wakf and settling the same in the manner hereinafter appearing.Now I, the said Asila binti Mwijabu in pursuance of my said desire do hereby Wakf the said piece or parcel of and with all buildings and trees standing thereon and declare that the income of the said piece or parcel of land under deduction of all rates taxes and all expenses shall from time to time be divided in equal shares among [the named beneficiaries] as well as any other children that may be born to Ahmed bin Sheikh Makame and thereafter the descendants of the said beneficiaries from generation to generation in equal shares AND I hereby declare that Ahmed bin Sheikh Makame shall be the first Mutawali or Trustee of the said Wakf property after whose death the Trustee will be the Donor if still alive failing whom and after whose death the Trustee will be the eldest male or female beneficiary for the time being entitled to share in the income of the said Wakf provided always that he or she is a suitable person to be a Mutawali or Trustee under the Shariah AND if the eldest male or female beneficiary shall be unfit to perform the duties of a Mutawali or Trustee then I declare that the next eldest beneficiary shall be a Mutawali or Trustee and i hereby transfer all my right title and interest in said piece of land to Ahmed bin Sheikh Makame as the First Mutawali or Trustee of the said Wakf.” 78.In the absence of any express restrictions on dealings in the suit property, any dealings would only be subject to the provisions of section 14 of the repealed Act, which reads:14.Contracts or agreements relating to wakf property for more than one year must be sanctioned by commissioners No contract or agreement of any description whatsoever purporting to sell or to lease or otherwise alienate any property the subject of any wakf for any period exceeding one year shall be valid unless the sanction in writing of the Wakf Commissioners has first been obtained. 79.In Wakf Commissioners of Kenya v Farida Almasi Mukira & 2 others [2020] KEELC 1494 (KLR), Sila, J. faulted the transfer of a 99-year lease over property, which was the subject of a waqf for failing to secure the consent of the Wakf Commissioners. In that regard, the learned Judge had this to say:“24.The transaction between the 1st and 2nd defendants, and the 3rd defendant, transferred an interest in a lease that went beyond one year. It follows from the above that there needed to be sanction, in writing, of the Wakf Commissioners to be obtained as required by Section 14 above.28.…. This consent, as I have taken time to explain above, was an extremely important document, and is not the sort of document that any party, entering into the transaction of the nature herein, ought to have taken lightly, or to assume to have been issued, if the document purporting to be the consent was not clear on its content. The defendants, and/or their appointed advocates, ought to have ensured that there is no grey spot in the issuance of the consent. If there was any ambiguity, they ought to have, out of abundance of caution, pointed this out, and [sought] to have the air cleared, on whether consent has been issued or not. We have to understand that pursuant to the Lease instrument and the provisions of Section 14 of the Wakf Commissioners Act, it is the consent of the Commissioners themselves that must be given, not a letter from the Secretary.” 80.To our mind, any dealings or dispositions in the Waqf property not expressly sanctioned by the terms of the Waqf would be invalid, unless expressly authorised by the Wakf Commissioners. It is noteworthy that the dispositions complained of were made by Mohidin Mohamed, the Mutawali who took over the management of the Waqf property after the death of the first Mutawali. In effect, the 2nd respondent, Ahmed Mohidin, played no part in those transactions. He (the 2nd respondent) appears to have been sued merely in his capacity as Mohidin Mohamed’s son and the eldest beneficiary at the time the 1st respondent filed the suit culminating in the impugned judgment. Otherwise, no charges or transactions were personally undertaken by the 2nd respondent. 81.The relevant transactions that followed the registration of the Waqf Deed were as follows:a.By a Lease dated 15th January 1969, Mohidin Mohamed leased the suit property to the Lessees, Ram Piyari and Kubra Mohamedali Chagpar, for a term of 99 years from 1st January 1968. The Wakf Commissioners consented to the grant of Lease and affixed its Common Seal on the Lease along with the Secretary’s signature to signify their consent. Vide a letter to the appellant’s advocates dated 11th January 2010, the Wakf Commissioners confirmed that they had consented to the lease.b.The Lessees subsequently transferred their lease to Kenya United Steel Company Limited by a Transfer registered on 25th January 1969, but which is not on the record as put to us.c.Thereafter, Kenya United Steel Company Limited created several charges in favour of Kenya Commercial Bank Limited to secure the sum of Kshs. 130,000,000, but which charges are likewise not on record.d.In a regrettable turn of events, Kenya Commercial Bank Limited sold and transferred the mortgaged property to S.R.M Limited (the appellant’s former name) by a Transfer dated 9th May 2006 in exercise of its statutory power of sale. Consequently, the Wakf Commissioners consented to the transfer and affixed its Common Seal thereon, along with the signatures of the Chairman and Secretary.e.Thereafter, S.R.M Limited changed its name to Kenya United Steel Company (2006) Limited (the appellant herein). The Certificate of Change of Name was registered on 5th December 2006.f.By Charges dated 14th March 2011 and 26th July 2011, the appellant charged its property (being the leasehold interest in the suit property) to Standard Bank Kenya Limited and East and Southern African Trade and Development Bank respectively to secure the sum of Kshs. 700,000,000 and USD 2,500,000 respectively. The Charges were registered on 1st April 2011 and 17th August 2011 respectively. 82.Even though the Waqf Deed did not restrict the manner in which the suit property could be dealt with for the benefit of the beneficiaries in perpetuity, the term of years for which it was leased appears to put it beyond the beneficiaries’ reach for a fairly long period of time. Be that as it may, we find nothing to suggest that the same could not be leased and the proceeds thereof applied in accordance with the terms of the Waqf; provided that the lease was sanctioned by the Wakf Commissioners. In this regard, it is noteworthy that the 99-years lease was executed and registered with their approval. 83.It is also worth noting that the property is freehold. The Certificate of Ownership indicates that the original owner was certified as the proprietor of an estate in fee in the suit property on 16th July 1923. Soon thereafter, it was transferred to Asila binti Mwijabu by a Transfer dated 18th February 1925. The 99-year lease to the Lessees and the subsequent transfer to the appellant, as S.R.M Limited, cannot be faulted in view of the fact that the requisite written consent was obtained from the Wakf Commissioners in compliance with section 14 of the repealed Act. 84.Even though there is no evidence to show that the Wakf Commissioners’ consent was obtained to sanction the two Charges created by the appellant, it is instructive that what was Charged was the appellant’s leasehold interest to secure the mortgage debts incurred with a third-party bank. To our mind, the charges over the appellant’s leasehold interest in the unexpired terms of the lease sanctioned by the Wakf Commissioners did not of itself alienate the Waqf property or otherwise create a disposition or encumbrance overreaching the duly sanctioned leasehold interest in the property. To our mind, such securities cannot, strictly speaking, be termed as alienation of the property in contravention of the terms of the Waqf. 85.Section 2 of the Land Act defines “alienation” as “the sale or other disposal of the rights to land” and defines a “charge” as “interest in land [or in a leasehold interest thereon as is the case here] securing the payment of money or money’s worth or the fulfilment of any condition.” A literal interpretation of section 14 of the repealed Act would lead to the conclusion that its provisions do not apply to alienation of property that creates an interest in the waqf property for an unspecified period of time. Be that as it may, it cannot be gainsaid that charges, such as the Charges in issue here, tend to create a long- term interest in property, which may continue for an extended period and ultimately affect the beneficial interest and ownership of the property. In our view, the charges only attach to the uncontested unexpired term of the appellant’s leasehold interest in the Waqf property. 86.Having said that, we hasten to add that a purposive, as opposed to a literal, interpretation of section 14 of the repealed Act would be fitting. A purposive interpretation would support our conclusion that such securities only attach to the unexpired residue of the term of lease granted the appellant, and to no more. Accordingly, the impugned charges over the waqf property cannot be considered as amounting to “alienations” for a period exceeding one year, thereby falling within the scope of section 14 of the repealed Act so as to separately require the consent of the Wakf Commissioners. Consequently, the two Charges did not in any way run afoul of section 14 of the repealed Act or in any way invalidate the Waqf. 87.On the 5th and final issue as to whether the learned Judge erred in granting the reliefs in terms as sought notwithstanding the fact that the consequential orders affected parties not joined in the suit, the learned Judge concluded that the Waqf was invalid for non- compliance with the law; that the “… charges registered on the title were transactions entered into between the 2nd defendant and the said financial institutions”, and that “any remedy due to those institutions lie as against the 2nd defendant”. According to the learned Judge, the suit could not fail merely because those institutions were not joined in the proceedings. 88.Taking issue with the learned Judge’s decision, counsel for the appellant submitted that the suit was fatally defective for failure to join the Wakf Commissioners of Kenya, who authorised the impugned transactions; that the administrative acts of the Wakf Commissioners pursuant to their statutory mandate could not be invalidated or impugned without affording them a right to be heard, and that to do so would violate the principles of natural justice and, in particular, the right to be heard; that the impugned decision exposes the Wakf Commissioners to potential liability and undermines their statutory role; that third parties transacted in reliance on the validity of the Commissioners’ actions; and that any decision made in their absence is of no legal force. 89.Counsel further submitted that there are existing legal charges registered over the suit property by financial institutions, which were also not party to the suit; that those institutions hold registered securities, protected under sections 26 and 46 of the Registration of Titles Act (now repealed); that those Charges confer absolute protection to those financial institutions as secured creditors and the bona fide purchasers for value without notice, which institutions enjoy statutory protection; that cancellation of such interests without their participation in the suit amounts to breach of their rights under the Fair Administrative Actions Act as well as Article 47 of the Constitution; and that the impugned decision in this regard undermines the sanctity of registered titles under Article 40 of the Constitution. 90.In conclusion, learned counsel submitted that the Registrar of Titles, whose administrative actions in registering the impugned transactions, and whose actions were under direct scrutiny, was likewise not joined in the suit, yet the trial Court proceeded to render judgment impacting the validity of such registrations. Counsel contended that it is trite law that, where the actions or decisions of a public officer are directly in issue, such officer must be joined as party to the proceedings; that the trial court acted ultra vires, thereby rendering the entire judgment null and void. 91.In rebuttal, learned counsel for the 1st respondent submitted that all the transactions predicated on the transfer by the Trustee of the invalid Waqf were a nullity. Counsel identified with the learned Judge’s holding that the consequence of the finding of invalidity of the Waqf was that any remedies due to the financial institutions pursuant to the charges lie as against the 2nd respondent. 92.On their part, learned counsel for the 2nd respondent did not make any submissions on this issue. 93.To our mind, the decisive issue in the suit was whether or not the Waqf, as created, was valid. We hold that it was. In view of our foregoing holding that the impugned charges only attached to the leasehold interest enjoyed by the appellant, the financial institutions to whom the suit property was charged cannot be regarded as necessary parties for the determination of that issue notwithstanding that any consequential orders may affect them. The learned Judge correctly observed that any remedies arising from the charges and the contested lease lay elsewhere. Be that as it may, the trial proceedings would have greatly benefitted from the participation of the Wakf Commissioners, who were the authority responsible for registering Waqfs under section 10 of the repealed Act, and whose sanction was required under section 14 of the repealed Act before the suit property was leased by the then Mutawali. No doubt, their involvement might have significantly clarified the questions regarding the deceased settlor’s personal law and the validity of the Waqf. 94.It is noteworthy that the record of proceedings indicates that the court was open to allowing participation of the Wakf Commissioners. Following the close of the plaintiff’s case on 3rd October 2016, the court granted the appellant’s request to issue witness summons to the Commissioners. However, the appellant called only one witness at the defence hearing and closed its case without engaging the participation of those Commissioners, a decision in respect of which no explanation was given. In view of the foregoing, and having made findings on the other grounds of appeal, we can only conclude that this particular issue is rendered moot. 95.Having considered the record of appeal, the grounds on which it was anchored, the rival submissions of learned counsel, the cited authorities and the law, we reach the reasoned conclusion that the 1st respondent had the locus standi to institute the suit; that the suit was not time-barred under and by virtue of the Limitation of Actions Act, Cap. 22; that the Waqf in issue was valid; that the lease registered against the Waqf property for a term of 99 years was duly sanctioned by the Wakf Commissioners as mandated under the repealed Act; and that the subsisting Charges and securities merely attach to the appellant’s leasehold interest in the Waqf property, and are by no means null and void for want of separate approval by the Wakf Commissioners. 96.Finally, we find that the learned Judge erred in entering judgment in the 1st respondent’s favour as prayed notwithstanding the fact that no evidence was adduced to show that Mohidin Mohamed had no power as the then Mutawali to lease the suit property to the Lessees and apply the proceeds derived therefrom for the benefit of the beneficiaries under the Waqf. 97.We form this view cognisant of the fact that the Waqf in issue was in the nature of a “waqf ahli", a Waqf made for the benefit of the deceased settlor’s family, namely her children and their children from generation to generation. For the avoidance of doubt, it was neither a religious or charitable Waqf, which require express provision of a charitable object. In addition to the foregoing, we find nothing on record to suggest that the Waqf restricted the manner in which the suit property was to be administered by the Mutawali for and on behalf of the beneficiaries in perpetuity. In conclusion, we also find that it was immaterial that the Wakf Commissioners, the Registrar General and the third party chargees were not joined as party to the proceedings in the trial court. 98.Having carefully considered the record of appeal, the grounds on which it was anchored, the rival submissions by respective counsel, the cited authorities and the law, we find that:a.the 1st respondent had the legal capacity to institute the suit;b.the suit was by no means time-barred under and by virtue of the statute of limitation;c.the learned Judge was at fault in holding that the Waqf in issue was invalid;d.the lease or other dispositions contracted by the Mutawali or other parties are legally binding on the Waqf property; ande.the learned Judge was not at fault in proceeding to hear and determine the 1st respondent’s suit notwithstanding the fact that the Wakf Commissioners were not party thereto; and that certain transactions affecting the Waqf property (including the impugned charges) involved third parties not joined in the suit; andf.Accordingly, we find that the instant appeal partly succeeds and is hereby allowed to the extent that we hereby order and direct:i.that the judgment and decree of the ELC at Mombasa (A. Omollo, J.) delivered on 31st October 2017 be and is hereby upheld only to the extent that the learned Judge held that the 1st respondent had locus standi to institute the suit on his own behalf and in his capacity as the elder beneficiary (the eldest beneficiary having apparently abdicated his responsibility in that regard); and that the suit was not time-barred as the Waqf was intended to benefit the settlor’s descendants in perpetuity;ii.that the impugned judgment be and is hereby set aside in so far as it declared the Waqf invalid;iii.that the orders to vest the land in the name of the deceased settler, and to nullify all transactions subsequent to the establishment of the Waqf, be and are hereby set aside; andiv.considering the partial success of the appeal and the nature of the subject matter of the dispute, to wit trust property, we hereby order and direct that the parties bear their own costs of the appeal.Orders accordingly. DATED AND DELIVERED AT MOMBASA THIS 15TH DAY MAY, OF 2026.S. GATEMBU KAIRU, FCIArb, C.Arb..................................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb............................................JUDGE OF APPEALG. W. NGENYE-MACHARIA...........................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR