Masila v Mutungi & another; Mutungi (Interested Party) (Environment and Land Appeal E093 of 2022) [2025] KEELC 6917 (KLR)
The bottom line
#A Kenyan widow's right to stay on her mother-in-law's property ended when her husband died, and the High Court upheld her eviction.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Appellant acquired proprietary interest over the suit properties.
- 2.Whether the Power of Attorney donated by the 1st Respondent to the 2nd Respondent was valid and properly registered in accordance with the law
- 3.Whether the Appeal is merited.
Key legal issues
#Whether the Appellant acquired proprietary interest over the suit properties
The Appellant acquired no proprietary interest; she was a licensee under her deceased husband and the licence ended on his death, making her continued occupation trespass
The properties are registered in the name of the 1st Respondent, who acquired them by mortgage and purchase. The Appellant furnished no agreement or licence granting her occupation in exchange for bearing children, and no evidence of a gift to her late husband or of a trust. Applying Selle v Associated Motor Boat Co. on the first-appeal role and the Nahashon Karenge, Edward Makori Oganga and Okiro v Gatatha decisions, the court held there is no vested right to inheritance during a parent's lifetime.
Whether the Power of Attorney donated by the 1st Respondent to the 2nd Respondent was valid and registered
The Power of Attorney was valid and registered on 7th August 2018 in compliance with the Land Registration Act
On perusal of the Power of Attorney donated by the 1st Respondent to the 2nd Respondent, the court found it was registered on 7th August 2018. The Appellant's contention that it was unregistered and thus invalid therefore failed, and the 2nd Respondent had legal authority to act on behalf of the 1st Respondent including in eviction proceedings and rent recovery.
Whether the appeal was merited
The appeal was unmerited and was dismissed, upholding the trial court's judgment
All four grounds of appeal failed: the trial magistrate did not err in declining the injunction, in upholding the validity of the Power of Attorney, in refusing to condemn the 2nd Respondent's and auctioneers' actions, or in declaring the Appellant not entitled to occupy the properties. The court affirmed the dismissal of the suit and the vacation order, with each party bearing their own costs due to the family relationship.
Legal principles established
#- A licensee's right of occupation terminates upon the death of the person under whom they entered, and continued occupation thereafter amounts to trespass against the registered owner
- There is no vested right to inheritance during the lifetime of parents
Court orders
#- 1.The appeal was dismissed in its entirety
- 2.The judgment delivered on 30th July 2021 by Hon. L. L. Gicheha in Milimani Commercial Court Civil Case No. 5447 of 2017 was upheld
- 3.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Milimani Commercial Court (Chief Magistrate's Court)
- Civil Case No. 5447 of 2017
- Jurisdiction invoked
- First appeal to the High Court from the Chief Magistrate's Court
Relief refused
#Allowing the appeal and setting aside the judgment of the Milimani Commercial Chief Magistrate court
The Appellant was found to be a mere licensee whose licence terminated upon the death of her husband; she acquired no proprietary interest in the suit properties
A declaration that the Power of Attorney held by the 2nd Respondent was unregistered and invalid
The court found the Power of Attorney was registered on 7th August 2018 in accordance with the law
A finding that the 2nd Respondent's and auctioneers' actions were unlawful
Since the Appellant had no proprietary interest and her licence had been determined, there was no illegality in the actions taken
Costs
Each party to bear their own costs, since both the Appellant and Respondents are related.
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.
I find that the Appellant only entered the said suit properties as a licensee under the deceased, which license terminated upon the death of her deceased husband.
There is no vested right to inheritance during the lifetime of parents.
I hence find that the said Power of Attorney was valid and was indeed registered in accordance with the law.
In the circumstances, I find the Appeal unmerited and will proceed to dismiss it and uphold the Judgment delivered on 30th July, 2021 by the Hon. L. L. Gicheha in Milimani Commercial Court Civil Case No. 5447 of 2017.
On costs, since both the Appellant and Respondents are related, each party should bear their own costs.
Issues in the judgment
#The judgment variously renders the Buruburu parcel number as 'NRB/Block 75/516', 'Nairobi/Block 75516' and 'LR No. NRB/BLOCK 75/516' within the same text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masila v Mutungi & another; Mutungi (Interested Party) (Environment and Land Appeal E093 of 2022) [2025] KEELC 6917 (KLR)", Case Analysis (2025). Appeal against the judgment in Milimani Commercial Court Civil Case No. 5447 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6917/eng@2025-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.