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ELCDismissedELC Suit No. 1296 of 2014· [2015] KEELC 258 (KLR)

Chege v Gachoka & 2 others (Environment and Land Case 1296 of 2014) [2015] KEELC 258 (KLR)

Environment and Land Court
30 July 2015
JMJ. M. Mutungi
1,343 words in judgment
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The bottom line

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A Kenyan court dismissed a land partition suit, holding the owner must first use the Registrar's statutory process under the Land Registration Act, not the courts.

What this practically means

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Executive summary

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The Plaintiff sued the 1st Defendant and the intended legal representatives of two deceased co-owners, seeking an order authorizing the Deputy Registrar to sign forms to facilitate partition of LR No. Ndumberi/Ndumberi/18, in which the Plaintiff and others held shares of 1/6, 1/2 and 1/6. The Defendants did not enter appearance or file a defence, and interlocutory judgment was entered on 23rd February 2015; the matter proceeded to formal proof. At formal proof, the Plaintiff testified that the parties were registered as shareholders in defined shares and sought partition so each shareholder could obtain individual titles. The court found a co-tenancy under section 91(1) of the Land Registration Act and, applying section 91(8), held that since the parties were registered on 28th September 2012 without leave of court, the tenancy was a tenancy in common. The court noted that section 94 of the Act allows any tenant in common to apply to the Registrar for partition in the prescribed form without the consent of the other co-tenants, and that the Plaintiff had not sought an order for sale under section 96. Applying the Njenga Karume principle that a statutory dispute resolution procedure must be strictly followed, the court held the Plaintiff must exhaust the remedy under the Land Registration Act rather than litigate the partition in court. The suit was dismissed with no orders as to costs.

Key legal issues

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01

Nature of the co-tenancy over the suit property

Holding

The co-tenancy is a tenancy in common, since the joint tenancy between non-spouses was created without leave of court after the Land Registration Act commenced.

Reasoning

Section 91(8) of the Land Registration Act, effective 2nd May 2012, restricts joint tenancies to spouses; any other purported joint tenancy takes effect as a tenancy in common. The parties were registered on 28th September 2012 with no evidence of leave of court, so their ownership of undivided shares constitutes a tenancy in common.

p. 2
02

Whether the court could order partition via the Deputy Registrar signing forms

Holding

No - the Plaintiff must first pursue the statutory partition procedure under section 94 of the Land Registration Act by applying to the Registrar, which does not require the co-tenants' consent.

Reasoning

Section 94 allows any tenant in common to apply to the Registrar in the prescribed form for partition without the consent of all co-tenants. The Plaintiff did not seek an order for sale under section 96. Following the Njenga Karume principle, where statute provides a dispute resolution procedure, it must be strictly followed, so the court declined to grant the order sought.

p. 3

Legal principles established

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  • Where the Constitution or a statute has provided a dispute resolution procedure, that procedure must be strictly followed.
  • A joint tenancy between non-spouses created without leave of court after the commencement of the Land Registration Act takes effect as a tenancy in common.
  • Any tenant in common may apply to the Registrar for partition of land owned in common without the consent of the other co-tenants.

Court orders

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  1. 1.The suit is dismissed with no orders as to costs

Authorities

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Legislation

  • Land Registration Actsection 91(1)
  • Land Registration Actsection 91(8)
  • Land Registration Actsection 94
  • Land Registration Actsection 96
  • Civil Procedure RulesOrder 10 Rule 6

Cases cited (2)

  • Speaker of National Assembly vs. Njenga Karume
    (2008) 1 KLR (EP) 425
  • Jaldesa Tuke Dabelo vs. Independent Electoral & Boundaries Commission & another
    Nyeri CA No. 37 of 2014
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (Land Registration Act and Environment and Land Court Act)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Chege v Gachoka & 2 others (Environment and Land Case 1296 of 2014) [2015] KEELC 258 (KLR)", Case Analysis (2015). ELC Suit No. 1296 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/258/eng@2015-07-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.