Dena & another (Suing on behalf of 111 Members of the Mtwapa Land Tenants Associations) v Kalume & 6 others (Civil Suit 299 of 2013) [2025] KEELC 5240 (KLR)
The bottom line
#The Environment and Land Court dismissed Mtwapa residents' land claim because their verbal agreements lacked the written form Kenyan law requires for land deals.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was a legal agreement between the Plaintiffs and the Defendants?
- 2.Whether the Plaintiffs are entitled to the orders sought in the Plaint?
- 3.Who bears the costs of the suit?
Key legal issues
#Whether there was a legal agreement between the Plaintiffs and the Defendants
There was no valid enforceable contract; the alleged agreements offended Section 3(3) of the Law of Contract Act and Section 38 of the Land Act
The court found the alleged tenancy/purchase agreements failed the mandatory formalities for contracts dispositioning an interest in land: writing, signature by all parties, and attestation. Most plaintiffs produced no agreements in court, did not conduct official searches, and lacked documents with the Defendants. Relying on the Court of Appeal in Jane Catherine Karani, the court held the wording of the statutory provisions mandatory and concluded no valid contract existed.
Whether the Plaintiffs are entitled to the orders sought in the Plaint
The Plaintiffs did not prove their case on a balance of probabilities and are not entitled to the reliefs sought
Applying the coastal 'house without land' doctrine recognized under the repealed Land Titles Act and the Eviction of Tenants (Control) (Mombasa) Ordinance, the court held that ownership of houses was separate from ownership of the land. The Plaintiffs had stopped paying ground rent, and the land owners were entitled to rescind the arrangement. The claimed fraud in obtaining titles was also not proved to the required standard.
Who bears the costs of the suit
Costs follow the event; the Defendants as the successful parties are awarded costs
The court reaffirmed the judicial discretion on costs under Section 27(1) of the Civil Procedure Act, guided by the principle that the successful party is typically entitled to costs absent compelling reasons. Since the Plaintiffs failed to prove their claim, the Defendants were awarded the costs of the suit for participating in it.
Legal principles established
#- A contract over land that does not satisfy the formal requirements of Section 3(3) of the Law of Contract Act and Section 38 of the Land Act is unenforceable
- The coastal 'house without land' concept under the repealed Land Titles Act meant a building erected on another's land remained the property of the person who erected it, and the land owner could rescind the arrangement if rent was not paid
- Costs follow the event under Section 27(1) of the Civil Procedure Act
Court orders
#- 1.Judgment entered in favour of the Defendants as the Plaintiffs failed to prove their case in respect of the Further further Amended Plaint dated 4th August, 2017 filed on 2nd November, 2017
- 2.The Defendants have the costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution of Kenya, 2010 over disputes relating to land
Relief refused
#Rectification of title deeds pertaining to Plot Nos. MN/III/742, 743, 744, 745, 746 and 747 by cancellation or amendment
Plaintiffs failed to prove the alleged fraud and there was no valid contract between the parties
Declaration that Plaintiffs with permanent residential buildings be granted ownership upon assessment of value
No enforceable agreement complying with Section 3(3) of the Law of Contract Act and Section 38 of the Land Act
Permanent injunction restraining Defendants from evicting the Plaintiffs from Plot No. 742/III/MN and from subdividing the same
Plaintiffs did not prove entitlement to the orders sought
Costs
The Defendants have the costs of the suit
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.
It is trite law that a contract over land that does not satisfy the requirements of Section 3[3] of the Law of Contract, Cap. 23 and Section 38 of the Land Act, No. 6 of 2012 are unenforceable.
That Judgment be and is hereby entered in favour of the Defendants as the Plaintiffs have failed to prove their case in respect to the Further further Amended Plaint dated 4th August, 2017 filed on 2nd November, 2017 with costs to the Defendants.
That the Defendants have the costs of the suit.
the owner of the house is different from the owner of the land on which it stands.
Thus, I hold that the Plaintiffs are not entitled to the prayers sought in the Plaint.
Issues in the judgment
#Witness figures in the judgment are internally inconsistent and garbled (e.g. PW-4 stated as 'Kenya Shillings One Thousand Seven Hundred [Kshs. 1,700,000/-]' and PW-3 'Kenya Shillings Four Thousand [Kshs. 400,000/-]'), creating uncertainty over the actual sums claimed for titles
Plaintiff named differently across the judgment: 'Geofrey Mutinda Nzou' in the plaint versus 'GEOFFREY MURINDA NZEU' as PW-1, and PW-2 payment figures vary ('Kenya Shillings One Thousand Five [Kshs. 1,500,000/-]')
Costs provision misdescribed as 'Section 27 [1] of the Civil Procedure Rules Cap. 21' - Cap. 21 is the Civil Procedure Act, not Rules
Reference to a prior dismissal of a related suit by Judge Ogola on 22nd May 2017 during PW-7's cross-examination raises potential res judicata considerations not addressed by the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dena & another (Suing on behalf of 111 Members of the Mtwapa Land Tenants Associations) v Kalume & 6 others (Civil Suit 299 of 2013) [2025] KEELC 5240 (KLR)", Case Analysis (2025). ELC No. 299 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5240/eng@2025-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.