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ELCPartially AllowedLand Case No. 8 of 2013· [2016] KEELC 879 (KLR)

Teresa Andawo Ogola & 3 others v George Onyango Obwanda [2016] KEELC 879 (KLR)

Environment and Land Court
18 May 2016
SKS.M. Kibunja
1,217 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that five family co-owners of ancestral land, with no shares stated on the title, must split it equally regardless of who lives where.

What this practically means

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Executive summary

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The four Plaintiffs sued the Defendant seeking an order that the Siaya District Land Surveyor be directed to subdivide land parcel East Gem/Uranga/142 in accordance with a Siaya Land Control Board consent, averring that a scheduled subdivision on 28th November 2012 was aborted when the Defendant declined to allow the surveyor to proceed, and that as ancestral land each beneficiary should be registered with their own portion. The Defendant denied stopping the survey and averred that the land, first registered in the name of Ogola Lago, was after his death transferred to the Plaintiffs and himself as proprietors in common in equal shares, and sought equal subdivision. The court identified three issues: the registered proprietors of the parcel, whether and in what shares the land should be subdivided, and costs. It found that the five parties were registered as proprietors on 1st November 2004, with the title issued on 4th November 2004. Since the title and official search did not specify shares, the court held that the parties were tenants in common in equal shares under section 91(8) of the Land Registration Act, and that partition is governed by section 94(1). The Plaintiffs' claim that occupation should be honoured failed. The court directed the County Land Registrar and Surveyor to partition the land equally among the five proprietors, ordered subsequent registrations, directed equal sharing of partition costs, and ordered each party to bear their own costs of the suit to foster unity among the related parties.

Key legal issues

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01

Nature of co-ownership where shares are unspecified on the title

Holding

The five registered proprietors hold the land as tenants in common in equal shares

Reasoning

The certificate of official search and title deed did not specify the share of each of the five registered proprietors. Section 91(8) of the Land Registration Act provides that any joint tenancy other than between spouses takes effect as a tenancy in common. Had the intention been for unequal portions, that should have been captured in the transfer document.

p. 2
02

Whether the court could determine the legality of the transmission process

Holding

The court declined to determine the legality of the registration/transmission process as no party challenged it

Reasoning

Although it was unclear whether the registration of the Plaintiffs and Defendant was effected through succession proceedings under the Law of Succession Act, none of the parties challenged the process, and the court was not called upon to determine its legality.

p. 2

Legal principles established

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  • Where shares are not indicated against registered co-proprietors on a title, they are presumed to be tenants in common in equal shares under section 91(8) of the Land Registration Act
  • Any tenants in common may, with the consent of all the tenants in common, apply to the Registrar for partition of land occupied in common under section 94(1) of the Land Registration Act

Court orders

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  1. 1.The County Land Registrar and Surveyor are directed to ensure land parcel East Gem/Uranga/142 is partitioned equally among the five registered proprietors
  2. 2.After partitioning, each of the five registered proprietors be registered with his/her own portion
  3. 3.The five registered proprietors do share equally the costs of partitioning the suit land into five equal parcels
  4. 4.Each of the five registered proprietors to meet the costs of transferring their portions into their respective names
  5. 5.Each party to bear their own costs in the suit

Authorities

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Legislation

  • Land Registration ActSection 91(8)
  • Land Registration ActSection 91(1)
  • Land Registration ActSection 94(1)
  • Law of Succession Act, Chapter 160 of Laws of Kenya
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel East Gem/Uranga/142

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Teresa Andawo Ogola & 3 others v George Onyango Obwanda [2016] KEELC 879 (KLR)", Case Analysis (2016). Land Case No. 8 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/879/eng@2016-05-18

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