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ELCPartially Allowed· [2015] KEELC 209 (KLR)

Michael Munene Njogu & 2 others v Bernard Githinji & 2 others [ [2015] KEELC 209 (KLR)

Not expressly named in judgment (land and environment dispute determined at first instance by a Judge)
30 September 2015
3,291 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The suit property, leasehold INOI/KERUGOYA/250/16, was registered in July 1971 under the (now repealed) Registered Land Act in the joint names of five persons, including the plaintiffs' late father Njogu Chomba, to hold as tenants in common in equal shares. After Njogu Chomba died in 1983, the 1st plaintiff was registered as trustee of his share. The plaintiffs sued in December 2011, alleging the defendants sold part of the property without the co-owners' consent and sought a permanent injunction, a declaration that the defendants' dealings were null and void, and an account. The defendants counter-claimed, contending each proprietor could sell his equal share, having sold four shares to Lawrence Wachira Ngirigacha with Council approval, and sought an account of rent collected by the plaintiffs plus general and special damages. The court held, applying section 103(2) of the repealed Registered Land Act (mirrored in sections 91(5) and (6) of the Land Registration Act) and the Court of Appeal's decision in Satima Peak Farmers Ltd v Onesmus Weru (Dec'd), that a co-owner must obtain the consent of the other co-owners before selling to a third party, and co-owners must act unanimously. The sale proceeded without consent and despite a caution. The plaintiffs' injunction and declaration prayers were granted, and both sides' prayers for accounts were allowed by way of a structured order for taking of accounts by appointed accountants. The counter-claim for damages was dismissed since special damages must be specifically itemised and proved. Each party was ordered to bear its own costs.

Key legal issues

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01

Validity of sale of co-owned property without consent of all co-owners

Holding

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

Reasoning

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.

p. 4
02

Whether orders for the taking of accounts of rent should issue

Holding

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

Reasoning

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.

p. 5
03

Effect of the purchaser (Lawrence Ngirigacha) not being a party to the suit

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Each party to meet their own costs of the suit
  5. 5.The defendants' counter-claim for general and special damages dismissed

Authorities

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Legislation

  • Registered Land Act (repealed)Section 103(1) and (2)
  • Land Registration ActSection 91(5) and (6)
  • Civil Procedure RulesOrder 19 Rule 1
  • Civil Procedure RulesOrder 20 Rule 16
  • Civil Procedure Rules 2010Order 21 Rule 17

Cases cited (5)

  • YOGENDRA PATEL VS PASCALE BAKSH & TWO OTHERS
    H.C Civil Case No. 617 of 1995 (NBI)
  • ASHIT PATANI & TWO OTHERS VS DHIRAJILAL PATTANI & TWO OTHERS
    2014 eKLR
  • SATIMA PEAK FARMERS LIMITED VS ONESMUS WERU (DECEASED) & 4 OTHERS
    2013 eKLR
  • RE HILTON
    (1990) 2 Chan 548
  • NATIONAL BANK OF KENYA LTD VS PIPEPLASTIC SAMKOTI (K) LTD & ANOTHER
    (2001) K.L.R 112
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.