Japheth v Wakf Commissioners of Kenya & 2 others (Civil Appeal 71 of 2020) [2023] KECA 1512 (KLR)
The bottom line
#Kenya's Court of Appeal restored a Kshs 60 million Mombasa lease purchase, ruling the Wakf Commissioners' own letter validly granted transfer consent.
What this practically means
#Executive summary
#Key legal issues
#Whether written consent of the Wakf Commissioners to the transfer of the lease was obtained
Consent was in fact granted; the letter of 17th August 2015 signed by the Secretary and the receipt for the consent fee evidenced consent, and the Judge erred in requiring the Chairman's signature and in misconstruing the letter.
Clause (h) of the Lease required the lessor's written consent, not unreasonably withheld. The Secretary signed the 17th August 2015 letter in his official capacity, headed 'consent-Transfer of Lease', acknowledging receipt of Kshs.450,000 consent fee. The Judge had earlier accepted in the same judgment that a Secretary ordinarily has authority to sign documents for the Commissioners under Section 7(4) of the Wakf Commissioners Act, making his contrary finding internally inconsistent. The letter's reference to the Chairman concerned execution of the Transfer Document, not the consent itself.
Whether the sale of alcohol on the property breached clause (e) of the Lease
The breach was not proved; the burden lay on the Wakf Commissioners to prove on a balance of probabilities that selling alcohol was 'illegal use' offending the beliefs of Muslims, and judicial notice of a religious belief could not be taken without proof of its notoriety.
Under sections 107-109 of the Evidence Act, whoever asserts facts must prove them. Section 60 permits judicial notice of matters of common notoriety, but Gupta v Continental Builders places the burden of convincing the judge of that notoriety on the party invoking it. No verse of the Holy Koran was cited and no evidence established that selling alcohol offends the beliefs of Muslims. Indeed the Vendors' Muslim father had run a bar selling alcohol on the premises for years, undermining the claim of notoriety.
Legal principles established
#- A letter from the Secretary of a body, signed in that official capacity and acknowledging receipt of a consent fee in respect of a transfer, can constitute the consent of the body; a trial judge cannot demand the chairman's personal signature absent evidence that the officer lacked authority.
- Where judicial notice of a religious belief or practice is sought to be taken to the disadvantage of a party who does not profess that faith, it is not sufficient to call evidence from those professing the faith; the proponent must prove the belief or practice is notorious among non-adherents too.
Court orders
#- 1.Appeal allowed
- 2.Judgment of the Environment and Land Court set aside in its entirety
- 3.Cross-appeal dismissed
- 4.Appellant to have the costs of the appeal
- 5.No orders as to the costs of the cross appeal
- On appeal from
- Environment and Land Court at Mombasa
- not stated (suit filed 28th November 2018)
- Jurisdiction invoked
- First appeal to the Court of Appeal against a judgment of the Environment and Land Court (statutory first appeal; specific provision not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Japheth v Wakf Commissioners of Kenya & 2 others (Civil Appeal 71 of 2020) [2023] KECA 1512 (KLR)", Case Analysis (2023). Court of Appeal Appeal (Mombasa) – arising from ELC suit by Wakf Commissioners against the Vendors and the appellant (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1512/eng@2023-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.