Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedOriginating Summons dated 23rd December 2020

Badri v Mbarak (Land Case 242 of 2020) [2025] KEELC 1491 (KLR)

Environment and Land Court
21 March 2025
16,217 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~65 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Mombasa dismissed an heir's claim against a buyer who demolished and rebuilt a coastal 'house without land', confirming his right to stay.

What this practically means

#

Executive summary

#
The Plaintiff, Abdilahi Salim Badri, sued the Defendant, Hemed Mohamed Mbarak, by Originating Summons dated 23rd December 2020 under Order 37 of the Civil Procedure Rules, 2010, claiming to be heir and cestui que trust under the 1979 probate will of Saleem Bader Abdul Baqui Al-Amry in respect of Plot No. 661/II/MN. He contended that the Defendant, having bought only a temporary Swahili 'house without land' from Halima Anderson Gylden, unlawfully demolished it and built a permanent storeyed house, intermeddling with the estate; he sought declarations, an injunction and demolition. The Defendant asserted he purchased the house for Kshs 4,000,000 with the consent of the beneficiaries of Ahmed Salim Bader's share, paid ground rent, and lawfully rebuilt. After failed court-annexed mediation, viva voce evidence from one witness per side, and written submissions, the court framed three issues: whether the Plaintiff made out his claim, whether he was entitled to the prayers, and costs. Applying Sections 107 and 108 of the Evidence Act, the court held the Plaintiff failed to discharge the burden of proving the house belonged to the deceased's estate; the sellers and consenting parties had full legal capacity, the transactions were valid and created a tenancy, and the Kadhi's Court decree in Succession Cause No. 243 of 1997 confirmed the distribution. Ordering demolition would be absurd and draconian. The suit was dismissed in its entirety, all interlocutory orders against the Defendant were vacated, and costs were awarded to the Defendant, to be borne by the Plaintiff jointly and severally.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiff has made out his claim?
  2. 2.Whether the Plaintiff is entitled to the prayers sought?
  3. 3.Who meets costs of the suit?

Key legal issues

#
01

Whether the Plaintiff proved ownership of the house-without-land by the estate of his deceased father

Holding

The Plaintiff failed to prove his case; the persons who sold and consented to the transactions had full legal capacity and the deceased's estate owned nothing in respect of the house

Reasoning

The court found the Defendant lawfully purchased the house-without-land from Halima Anderson Gylden for Kshs 4,000,000 with consent of Asiya Omar Badru and Abdulmuin Ahmed Salim, who were collecting ground rent and recognised as owners of the ground. The Plaintiff did not discharge the evidential burden under Section 108 of the Evidence Act to show the house belonged to his father's estate. The Kadhi's Court decree confirmed the distribution. The claim failed on a balance of probabilities.

p. 25
02

Whether the concept of 'house without land' extends to permanent structures

Holding

The court accepted the doctrine of house-without-land as judicially recognised in the coastal region, but held the Defendant's purchase, demolition and rebuilding with consent created a valid tenancy

Reasoning

The court reviewed the coastal concept of 'house without land' as described by Ouko J and Angote J, noting that under the former Land Titles Act Cap. 282 and Mohammedan law a building erected on another's land remains the property of the person who erected it. It accepted the Court of Appeal's characterization of the interest as analogous to a lease, and found the Defendant continued remitting ground rent, sustaining his occupancy rights.

p. 22
03

Whether an Originating Summons under Order 37 Rule 1 was the proper procedure

Holding

The suit was properly brought under Order 37 Rule 1 as the Plaintiff claimed as heir/cestui que trust under a trust created by the probate will

Reasoning

The court held that heirs are permitted by Order 37 Rule 1 to seek relief not amounting to administration of the estate, including determination of questions affecting their rights as heirs or cestui que trust. Because the Plaintiff claimed under the probate will creating a trust, commencing by Originating Summons was proper, citing Mikesh Manchand Shah and James Njiro Kibutiri.

p. 22
04

Costs of the suit

Holding

Costs follow the event; the Defendant, having succeeded, is entitled to costs

Reasoning

Relying on Section 27 of the Civil Procedure Act and Morgan Air Cargo Limited v Evrest Enterprises Limited, the court held that costs are discretionary but ordinarily follow the event. Since the Plaintiff failed to establish his case, the Defendant was entitled to the costs of the suit.

p. 26

Legal principles established

#
  • The purchase, demolition and rebuilding of a house-without-land with the consent of the owners of the ground creates a valid tenancy agreement entitling the house owner to occupy the land
  • A party who desires a court to give judgment as to a legal right dependent on facts he asserts must prove those facts; failing to discharge the evidential burden is fatal to the claim

Court orders

#
  1. 1.Judgment entered that the suit by the Plaintiff/Applicant as per the originating summons dated 23rd December 2020 fails in its entirety and is dismissed as it lacks substance and the Plaintiff failed to prove his case on a balance of probabilities
  2. 2.The court vacates all interlocutory orders, injunctions and any restraining orders issued against the Defendant in relation to the property in question; the Defendant has full liberty, possession and legal authority to deal with his property as he deems fit and just
  3. 3.Costs of the suit awarded to the Defendant to be borne by the Plaintiffs jointly and severally

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya and Section 13(2) of the Environment and Land Court Act, 2011; suit commenced under Order 37 of the Civil Procedure Rules, 2010

Relief refused

#

Declaration that the Defendant's entry and construction on Plot No. 661/II/MN was unlawful, illegal and amounted to intermeddling with the estate of the deceased

The Plaintiff failed to prove ownership of the house-without-land by his deceased father's estate; the transactions were valid and conducted by persons with capacity

p. 25

Permanent injunction restraining the Defendant from dealing with the suit property

The suit failed in its entirety and interlocutory orders were vacated

p. 27

Demolition of the permanent structure erected by the Defendant

The house bought by the Defendant had been demolished; ordering demolition of the new building would be absurd, in vain and draconian

p. 25

Costs

Costs of the suit shall be awarded to the Defendant to be borne by the Plaintiffs jointly and severally

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That Judgement entered in that the suit by the Plaintifi/ Applicant as per the originating summons dated 23rd December, 2020 fails in its entirety and is hereby dismissed as it lacks substance and the Plaintifi has failed to prove his case on a balance of probabilities.
p. 27Final orders - dismissal of the suit
That the court vacates all interlocutory orders, injunctions and any restraining orders that had been issued against the Defendant in relation to the property in question.
p. 27Final orders - vacation of interlocutory orders
That costs of the suit shall be awarded to the Defendant to be borne by the Plaintifis jointly and severally.
p. 27Final orders - costs
The purchase, demolition and rebuilding of the house with the consent of the Estate of Ahmed Salim created a valid tenancy agreement between the Defendant and the Estate, entitling the Defendant to occupy the land upon which his house stands.
p. 22House without land - valid tenancy
If the court was to order a reversal, which included a demolition of the said building as urged, it would not only be totally absurd, in vain but also extremely draconian to say the very least.
p. 25Refusal of demolition order
In saying so, I find that the Plaintifi lacks substance and has failed to prove his case on a balance of probabilities as required by the legal standards.
p. 25Standard of proof not met

Issues in the judgment

#
minor

Conflicting delivery dates within the judgment: the body states the judgment was delivered on 14th March 2025, while the signature block states it was signed and dated at Mombasa on 21st March 2025

minor

The judgment refers to the Plaintiff inconsistently in the singular and plural (e.g. 'Plaintifis' in the costs order) although there is only one Plaintiff

minor

The Defendant's submissions list issues for determination referring to 'Violation of the Defendant's Legal Rights' where the Plaintiff's rights were evidently meant, and the list is internally inconsistent

minor

The consent to construct is variously described as a one storey and a two storey permanent building in the Defendant's replying affidavit

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Badri v Mbarak (Land Case 242 of 2020) [2025] KEELC 1491 (KLR)", Case Analysis (2025). Originating Summons dated 23rd December 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1491/eng@2025-03-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.