“YOU BOUGHT THE HOUSE, NOT THE LAND”
CASE TITLE: Mwinyi V Bhai & Another [2025] KECA 1309 (KLR)
Factual Background:
This case highlights significant aspects of property law in kenya that every buyer should be aware of.
On 16th April 1998, Mrs Zainab Mwinyi bought a swahili house at an action for kshs. 140,000. To her, she imagined that she had acquired both the house and the land onto which it was built.
The house was made of wattle, daub with corrugated iron sheet roof, cemented walls and floor, a ceiling made of mud on boriti poles with wooden doors and windows. She immediately demolished the original structures and commenced construction of a storey building on the suit land.
To her dismay, the respondents served her with several notices to seize construction, vacate the plot and give possession. She allegedly didn’t comply to any of these notices leading to the commencement of the suit that culminated in this appeal.
The Respondents’ argument was that the house that she had bought from the April 1988 auction was apparently a house without land.
This implied that she had only acquired proprietary interests in the house but not the land, and therefore could not, without express permission of the landowners, demolish the old house and construct new a house on the suit land.
The dispute started at the High Court where the court agreed with the Respondent that the house Zainab had bought was a house without land. Therefore, her interest extinguished upon demolition of the house and she did not have the right to build another house on the said land without the landowner’s consent.
As such upon demolition of the original house, she became a trespasser on the Respondents’ land.
Ms Zainab, being aggrieved by this decision, appealed to the Court of Appeal.
Issues for Determination:
- Whether the appellant was entitled to demolish the house without land for re-construction without the respondents’ consent.
- Whether the appellant’s actions constituted trespass.
Findings of the Court:
- Whether the Appellant Was Entitled to Demolish the House Without Land for Re-Construction Without the Respondents’ Consent
The court considered the concept of house without land in addressing this issue. This was because it was uncontested that the respondent had acquired the house without land.
According to the court, the concept of house without land applies where the owner of the house differs from the owner of the land. This implies that a person can own a house without owning the land on which the house stands. This defies the common law concept of land expressed in the Latin maxim, cujus est solum ejus est usque ad coelum
meaning: ‘whose is the soil, his is also that which is above it’.
A person who acquires a house without land acquires only proprietary rights over the house and not the land. He or she does not get exclusive ownership of the land. The land and the house are two separate entities in a house without land transaction.
In the event an occupier of a house without land is under the impression that the house is uninhabitable, he/she can only effect improvements to the existing structure with the consent of the owner. The occupier of the house without land does not have absolute right to effect improvement to the house to the detriment of the landowner.
The proposed improvement has to be necessary and reasonable so as to render the house habitable. The requirement of consent is to protect the interest of the owner of the land ensuring that any development or renovation of the house does not affect the owners interest on the land.
Having found that the appellant had bought the house without land and owing to the fact that there was no sale agreement evidencing sale of the suit land to the appellant, the appellate court affirmed the trial court’s finding that the appellant had no right to demolish the original Swahili type house and construct a new house without the concept of the landowners.
- Whether the Appellant’s Actions Constituted Trespass
According to the court, for a claim of trespass to succeed, the claimant has to satisfy two tests: First, he must establish that he has a title to the suit property; and, secondly, in the absence of such title, he be in actual or constructive possession of the land upon which trespasses are alleged to have been committed.
The court found that the respondent satisfied the above two tests. They held the title to the suit plot and, their engagement with the appellant was strictly with respect to the house without land. The moment the landscape of the engagement took a different turn, the appellant converted herself from a lessee into a trespasser.
Orders
The appellant court upheld the trial court’s declarations inter alia
- The appellant trespassed on the Respondent’s land the moment the terms of engagement changed; the moment she demolished the original Swahili house and constructed a new house.
- The respondent to pay kshs. 500,000 in damages for trespass.
The mesne profit that had been awarded by the trial court was however set aside. The appellant court pointed out that mense profit has to be specifically pleaded in the plaint.
It was further noted that a party can only be awarded either mense profit or damages for trespass but not both. Mesne profit refers to the profit earned by a party in wrongful possession of the suit property during the period of unlawful / wrongful possession.
Conclusion
The concept of house without concept is a unique land tenure system majorly practised in the coastal areas of Kenya. When one buys a house without land, he or she only acquires proprietary interests of the said house and does not have a right to make any changes to the said house without the land owner’s consent. It is therefore prudent to understand the nuances of the concept before entering into such transactions.
