A caretaker who attempted to shortchange his employer by claiming ownership of his wealth has suffered a blow after the court declined to stop his eviction from a property he had taken over in Malindi.
Amin Mohamed Hamid had tried to prevent German national Werner Sebastian from evicting him from the property by claiming he had a share in it and would incur significant losses if removed.
He requested the Court of Appeal to issue stay orders to protect his interests while awaiting the outcome of an appeal he plans to file against a ruling evicting him from the property.
However, the Court of Appeal rejected this request, stating that Mr Hamid did not provide sufficient reasons to back his application.
Appellate judges Agnes Murgor, George Odunga, and Dr Kibaya Laibuta determined that they were not convinced that Mr Hamid’s planned appeal would become meaningless if stay orders were not issued.
“In so far 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.
The case dates back to 2005 when the German bought the property from Malindi Estates Ltd and it was subsequently registered in his name.
He then constructed a two-bedroom house on the ground floor where he resided and another two-bedroomed, and single-bedroom house on the first floor.
He then travelled back to his home country, leaving Mr Hamid to serve as his caretaker of the property.
Court records show that sometime in 2013, Mr Hamid cautioned Mr Sebastian to never return to Kenya claiming that a warrant for arrest had been issued.
“When I returned to Kenya in 2015, I found that Mr Hamid had rented out the property to third parties,” Mr Sebastian told the court.
The German then moved to court seeking various orders including that Mr Hamid and his tenants vacate the premises, as well as a permanent injunction to block them from entering or interfering with his property.
Mr Sebastian also petitioned for annulment of any agreement(s) Mr Hamid had entered into and other orders for payment of damages.
In his defence, Mr Hamid denied Mr Sebastian’s claim but admitted that the foreigner was the owner of the property, by virtue of having constructed the ground floor.
According to Mr Hamid, he was the one who built the first floor after Mr Sebastian gifted it to him.
“I had not rented out the ground floor and urge this court to dismiss the case against me,” he said.
He also 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.
“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 requested the court to recognise an agreement dated October 15, 2013, as a valid and legally enforceable contract, asserting his ownership of the two houses constructed on the first floor of the building in question.
The Environment and Land Court Judge Millicent Odeny had initially heard this case and 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.
He claimed that the judge failed to consider all the material he placed before her when she upheld Mr Sebastian’s claim unsupported by evidence.
In their decision to reject a request for stay orders by the complainant, the Court of Appeal judges also considered Mr Sebastian’s offer to refund any amounts owed to Mr Hamid.
Additionally, they noted that the foreigner’s ownership of the property in question is undisputed, and Mr Hamid’s occupation stems from his role as caretaker of the premises.
“Accordingly, Mr Hamid’s claim that he invested Sh300,000 in the alleged development of the first floor of the premises would, if found to be true, be recoverable in a claim for special damages. Indeed, it would not be difficult to recover such sum in the event that its appeal succeeded,” said the judges.
