[2024] KEELC 13887 (KLR)

Wakf Commissioners of Kenya v Kabundu Holdings Limited (Environment & Land Case E034 of 2023) [2024] KEELC 13887 (KLR) (19 December 2024) (Judgment)

Neutral citation: [2024] KEELC 13887 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Case E034 of 2023

NA Matheka, J

December 19, 2024

Between

Wakf Commissioners of Kenya

Plaintiff

and

Kabundu Holdings Limited

Defendant

Judgment

1. The Plaintiff avers that they are the registered proprietor as owner for an estate in fee simple of all that piece of land comprised in title number Mombasa/Block XX/47. That at present the Defendant unlawfully and forcefully occupies the parcel of land known as Plot No. MSA/Block XX/47 against the proprietary rights of the Plaintiff. That a lease was previously drawn in favour of the Defendant to run and terminate on the expiry of the period surviving the leasehold interest. That the said Lease to the Defendant terminated on 30th November, 2012 however the Defendant blatantly continues to occupy the subject parcel of land without any formal approvals and/or engagements whatsoever with the Plaintiff. That the Plaintiff is the custodian of Wakf properties within its realm, including the disputed parcel herein being Plot No. MSA/Block XX/47, and no alienation/transfer or disposal of any kind can be sanctioned without the consent of its commissioners. That noting that the subject disputed parcel is under the umbrella of a Wakf in accordance to the Muslim laws, even if there was to be a renewal of the Lease, only the Plaintiff can enforce this and offer fresh terms of leasehold. That the Defendant has been issued with a formal notice to grant vacant possession by letter dated 29th September, 2022 through their advocates M/S Abdulrahman Saad & Associates Advocates but has failed refused and/or neglected to do so. That it is in the interest of justice and fairness that Defendant vacates the parcel known as Plot No. MSA Block XX / 47 and in default be evicted accordingly. The Plaintiff prays for the following orders against the Defendant that:a.An eviction order be issued to forcefully evict the Defendant, their servants, agents, heirs and any other person claiming through them from the land parcel known as Plot No. MSA Block XX / 47;b.A permanent injunction do issue against the defendant from trespassing on land parcel known as Plot No. MSA Block XX/47. c.The Officer Commanding Station (Mombasa) do provide security during eviction.d.Costs of and incidental to this suit.e.Any other orders deemed suitable by the honorable court.

2. The Defendant states the Plaintiff Wakf Commissioners of Kenya a statutory body duly established by purview of statute to wit The Wakf commissioners Act cap 109 laws of Kenya whose main duties are the management and ear marking of the Wakf properties to assist the needy and under privileged members of the society who profess the Islamic faith. The Wakf commissioners of Kenya is chaired by honorable Chief Kadhi of the Republic of Kenya and duly assisted by uneven number of commissioners. The Plaintiff Wakf Commissioner of Kenya through Gulam Hussein Esmail Karachilwalla deceased transferred the land Mombasa Block XX/47 leasehold on 15th October 1974 to Kabundu Holdings Ltd for leasehold for 99years starting 1913. That on the 15th October 1974 Jenkinson & Parekh Limited sold for a consideration and transfers to Kabundu Holdings Limited the property on Mombasa /Block XX/47. That since 1974 the Defendant Kabundu Holdings Limited as improved the building the subject property worth millions of shillings and the building belongs to defendant, Kabundu Holdings Ltd.

3. The Defendant further states that in 1995 the subject property Mombasa Block XX/47 was illegally transferred from Kabundu Holdings Limited to Ruth Wakonyo Kabundu without consent of the Plaintiff, Wakf Commissioners of Kenya but in 2004 the High Court in Case No 649 of 1996 through judgment and decree dated 7th May 2004 nullified the certificate of lease of Ruth Wakonyo Kabundu and returned it back to Kabundu Holdings Ltd. the Defendant. That the Defendant through its Director and company attorney Mr. Patrick Kabundu visited the Plaintiff’s office several times during that period of 2011 but was informed to wait for the new Commissioners simply because there was no leasing going on since 2011 as there was no Commissioners. That the Defendant pays the ground rent of Kenya shillings 600 per year which Plaintiff claims from 2012 up to 2023 being 600 x 11 years totaling to Kshs 6600 which the Defendant cleared through banker cheque no 126942. The Defendant will pray to this court and request the lease extension to begin from 2012 as it is clear from 2012 to 2021 there was no certificate of lease extended due to lack of Commissioners and its was not Defendant who caused the delay in executing the extension documents. The Defendants further counterclaims from the Plaintiff for renewal of certificate of lease for 99 years. The Defendants avers that the Plaintiff approved the said request made demands to be met and the Defendant proceeded to comply with the said terms. The Defendant counterclaims for judgment against the Plaintiff for;a.A declaration that the Plaintiff allows the Defendant to complied with the conditions as per paragraph 15 of the defense and Counter Claim for purposes of executing a new lease.b.An order compelling the Plaintiff or the principal to execute a new 99 years lease with defendant.c.Without prejudice to the above an order that the Defendant be allowed to pay the Plaintiff or principle the subject premium and ground rent in installment until completion.d.Any other or further relief as this honorable court shall find deem fit and just to grant.e.Costs of the suit and interest thereon.

4. This Court has considered the evidence and the submissions therein. It is not in dispute that the Plaintiff is the registered owner of Plot No. MSA/Block XX/47. It is also in evidence that the Defendant was issued with a lease of 99 years beginning 1st December 1913 which lapsed on the 30th November 2012. PW1 stated that they failed to renew the lease and they have not been getting income from the suit property. That the Commissioners left in 2018 and they are operating as management. By a letter dated 29th September 2022 the Plaintiff issued a vacation notice to the Defendant which notice the Defendant refused to make good.

5. DW1, the Defendant testified that from 2012 to 2021 there was no certificate of lease extended due to lack of Commissioners and its was not the Defendant who cause the delay in executing the extension documents. The Defendant further counterclaims from the Plaintiff for renewal of certificate of lease for 99 years. He states that he has been paying through cheques. He produced a valuation report stating that their building was worth Kshs. 18 million in 2012. That the Plaintiff had given them an option to renew the lease within one year but then revoked the same. I find and it is not disputed that the lease expired by effluxion of time on 30th November 2012. After the expiry of the lease, I can see no justification for the Defendant’s continued occupation of the suit premises. As was held by Mbogholi Msagha J. in the case of R & K Investments vs Evanson Gitau (1998) eKLR. After 30th November 2012 there was no relationship between the Plaintiff and the Defendant which could be supported by any principle of law or equity. The issue as to whether Commissioners exist or not is an internal matter and the management of the properties has to continue. What is clear is that the lease expired and the same has not been renewed. The Lessor no longer wishes to renew that same and has issued the Lessee with a notice to vacate. The Defendant put up the buildings knowing very well the lease had an expiry date and cannot demand to own the property in perpetuity by having repeated renewals.

6. In the case of Kasturi Limited vs Nyeri Wholesalers Limited (2014) eKLR, that was also cited by the Plaintiff, the Court of Appeal stated that;“A tenant cannot impose or force himself on a landlord. In the instant case, when the lease between the parties expired, it was incumbent upon the Appellant to give vacant possession.”

7. From the foregoing, there is no justification for denying the Plaintiff possession of the suit premises. It is my finding therefore that the Plaintiff is entitled to vacant possession of the suit premises. I find that the Plaintiff’s claim against the Defendant has been proved on a balance of probabilities. On the other hand, I find the Defendants counter-claim is not merited and I dismiss it with costs. I therefore enter judgment for the Plaintiff against the Defendant as follows;1. The Defendant shall vacate and handover vacant possession of land parcel known as Plot No. Mombasa/Block XX / 47 forthwith and in any event not later than ninety (90) days from the date hereof failure to which the Plaintiff shall be at liberty to apply for warrants for its forceful eviction.2. A permanent injunction do issue against the defendant from trespassing on land parcel known as Plot No. Mombasa/Block XX/47. 3.The Plaintiff shall have the costs of the suit and the counter-claim.It is so ordered.

DELIVERED, DATED AND SIGNED AT MOMBASA THIS 19TH DAY OF DECEMBER 2024. N.A. MATHEKAJUDGE