Caretaker’s plan to take over German employer’s Malindi property fails in court

A man who had attempted to short-change his employer by claiming ownership of his property has suffered a setback after the Court of Appeal okayed his eviction from a building he was occupying illegally in Malindi.

Mr Amin Mohamed Hamid, whom Mr Werner Sebastian had hired to look after his house, had tried to prevent the German national from evicting him by claiming that he had a share in the property and would incur significant losses if kicked out.

He requested the court to issue stay orders to protect his interests while awaiting the outcome of an appeal he plans to file against his eviction. However, the Court of Appeal rejected this request, stating that Mr Hamid did not adequately justify his application.

Justices Agnes Murgor, George Odunga, and Kibaya Laibuta said they were not convinced Mr Hamid’s planned appeal would become meaningless if the stay orders were not issued.

“Insofar as the applicant’s case is anchored on the claim that he expended substantial sums of money to undertake improvements on the property, any sums, if found due, would be recoverable,” said the judges.

Malindi Estates Limited

The case goes back to 2005 when Mr Sebastian bought the property from Malindi Estates Limited and registered it in his name. The foreigner then built a two-bedroomed house on the ground floor where he lived and two additional houses — two-bedroomed and one-bedroomed units — on the first floor.

He then travelled back to his home country, leaving Mr Hamid to look after the property.

The court record shows that sometime in 2013, Mr Hamid cautioned Mr Sebastian to never return to Kenya due to an alleged warrant of arrest which had been issued against him.

“When I returned to Kenya in 2015, I found that Mr Hamid had rented out the property to third parties,” he told the court.

The German then moved to court to ask for various orders including that Mr Hamid and his tenants vacate the premises and a permanent injunction be issued to block them from entering or interfering with his property.

He also asked for an annulment of an agreement that Mr Hamid had entered into alongside other orders for payment of damages.

Mr Hamid denied Mr Sebastian’s claim but admitted that the foreigner was the owner of the property and that he built the ground floor of the house.

But, according to Mr Hamid, he is the one who completed the first floor after Mr Sebastian had given it to him as a gift.

The defendant further filed a counterclaim, asking the court to issue an injunction preventing Mr Sebastian and his agents from accessing, occupying or in any manner interfering with his enjoyment of the property.

Refund any amounts owed

“The foreigner, his agents or assigns be compelled to unconditionally restore my water pipes and make good any other loss that he illegally caused to be occasioned or removed from the two houses built on the first floor of the building,” he said. Mr Hamid asked the court to recognise an agreement relating to the two houses constructed on the first floor of the building and dated October 15, 2013, as a valid and legally enforceable contract.

Environment and Land Court judge Millicent Odeny had initially ruled in favour of Mr Sebastian in a judgment issued in November 2023. Mr Hamid is, however, aggrieved with this decision and wants the Court of Appeal to overturn it.

In his appeal, Mr Hamid has faulted Justice Odeny, arguing that she erred in law and fact by considering matters that she ought not to have considered and overlooking the material he had placed before her.

In their decision to reject a request for stay orders by the appellant, the Court of Appeal judges also took into account Mr Sebastian’s offer to refund any amounts owed to Mr Hamid.

Additionally, they noted that the foreigner’s ownership of the property is undisputed and Mr Hamid’s occupation stems from his role as a caretaker.

“Mr Hamid’s claim that he invested Sh300,000 in the alleged development of the first floor would, if found to be due, be recoverable in a claim for special damages. Indeed, it would not be difficult to recover such sums in the event that its appeal succeeded,” said the judges.

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