Michael Munene Njogu & 2 others v Bernard Githinji & 2 others [ [2015] KEELC 209 (KLR)
The bottom line
#Kenyan co-owners of land cannot sell their share without written consent of all other co-owners, and a judge cannot personally take accounts.
What this practically means
#Executive summary
#Key legal issues
#Validity of sale of co-owned property without consent of all co-owners
The sale of the defendants' shares to Lawrence Ngirigacha without the plaintiffs' consent was improper and illegal; the plaintiffs' prayers for injunction and declaration were well merited
The suit property was registered under the repealed Registered Land Act, whose section 103(2) prohibits a proprietor in common from dealing with his undivided share to a non-proprietor without the written consent of the remaining proprietors. The Court of Appeal in Satima Peak Farmers Ltd v Onesmus Weru (Dec'd) held co-owners must act unanimously. The sale proceeded without consent and despite a caution, so Mr Ngigi's contrary submissions could not stand.
Whether orders for the taking of accounts of rent should issue
A proper case for an order for the taking of accounts was made out, given both sides sought accounts and the parties' testimony on rent collection was contradictory
Both the plaintiffs and defendants sought accounts of rent collected. The 1st plaintiff gave contradictory evidence on whether his family collected rent from 1983 to 2011, while the 3rd defendant insisted the plaintiffs collected it. Following National Bank of Kenya Ltd v Pipeplastic Samkotil (K) Ltd, accounts are not taken by the Judge but by order under Order 19 and Order 21 Rule 17 of the Civil Procedure Rules, with special directions on mode.
Effect of the purchaser (Lawrence Ngirigacha) not being a party to the suit
Correct that no orders could issue against him, but the plaintiffs sought no orders against him; his position is a matter for a separate suit
Mr Ngigi argued no orders could be made against Lawrence Ngirigacha as he was not a party. The court agreed but noted the pleadings sought only injunction, declaration and accounts, with no relief against the purchaser, which 'appears to be the subject of another suit'. This preserved the purchasers' position while granting relief against the defendant co-owners.
Legal principles established
#- Where land is held by co-owners as tenants in common, no co-owner may deal with (sell) his undivided share to a third party without the written consent of the remaining proprietor(s), and co-owners must act unanimously
- On the death of a proprietor in common, his share is administered as part of his estate and does not devolve to the other co-owners
- The taking and settlement of accounts is not done by the Judge but through an order for accounts with necessary inquiries, under the Civil Procedure Rules
- A claim for special damages must be specifically itemised and proved
Court orders
#- 1.A permanent injunction restraining the defendants, their agents, workmen, servants or any persons claiming through them from dealing with leasehold INOI/KERUGOYA/250/16 without the consent of the plaintiffs as co-owners
- 2.A declaration that any dealings on the property INOI/KERUGOYA/250/16 by the defendants without the consent of the plaintiffs as co-owners is illegal, null and void
- 3.An order for the taking of accounts in respect of rent collected from the properties erected on L.R No. INOI/KERUGOYA/250/16, with directions for appointment of an independent accountant (or two accountants plus an umpire) to file a report within 60 days, with costs directions, liberty to apply, and further orders awaiting the report
- 4.Each party to meet their own costs of the suit
- 5.The defendants' counter-claim for general and special damages dismissed
- Jurisdiction invoked
- Original civil jurisdiction over a dispute on land registered under the (repealed) Registered Land Act; specific provision not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Raghwani & 2 others v Kerai (Legal Representative of the Estate of Kanji Mavji Kerai) (Environment & Land Case E042 of 2021) [2023] KEELC 623 (KLR)[2023] KEELC 623 (KLR)9 Feb 2023
- Gatimu (Suing on behalf of Godfrey Gitonga & 58 others being part of the allotees, owners of 104 parcels of land being L.R No. 25821 to 25922 of one-acre each) v Global Holdings Limited & 2 others[2022] KEELC 15379 (KLR)19 Dec 2022
- Shah & another v Haria & another (Environment and Land Case Civil Suit E340 of 2021) [2022] KEELC 2226 (KLR)[2022] KEELC 2226 (KLR)16 Jun 2022
- Joyce Muhambe Kigumba v Respondent (Appeal from dismissal of Chamber Summons seeking review/set-aside of orders striking out suit)[2018] KEHC 9462 (KLR)25 Sept 2018
Cite this brief
#Cite this brief
Caselaw, "Michael Munene Njogu & 2 others v Bernard Githinji & 2 others [ [2015] KEELC 209 (KLR)", Case Analysis (2015). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/209/eng@2015-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.