Nizar Hasham Virani v Shamsudin G. Nanji [2017] KEELC 1280 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Acreage of the jointly purchased land
The land measures 7.2 hectares, not 3.8; the 3.8 ha figure in the first title was an understatement corrected by resurvey following a joint instruction to Acromap Company
The objection proceedings confirmed eight (not seventeen) parcels were purchased. The first title of 7th February 1992 showed 3.8 ha with each proprietor holding a ½ share. The Defendant's explanation of a joint topographical survey used to petition the Land Registrar for resurvey was found more plausible than the Plaintiff's unproven swamp reclamation.
Nature of co-ownership
The parties are tenants in common in equal shares of the whole 7.2-hectare parcel under Section 91(2) of the Land Registration Act, since the current title does not specify their shares
The first title indicated ½ share each over 3.8 ha, but the current title of 26th May 2005 (7.2 ha) does not indicate each proprietor's share. Section 91(2) of the Land Registration Act No. 3 of 2012 raises a presumption of tenancy in common in equal shares where the nature of rights is unspecified.
Equal entitlement to purchase price contribution
Both parties contributed equally to the purchase and have equal entitlement irrespective of the timing of payments or refunds
Whether each paid half at the same time or the Defendant paid and the Plaintiff refunded later does not alter each party's right; neither claims refund of purchase price. The objection proceedings confirmed eight parcels were willingly sold to the objectors.
Compensation for management expenses versus share of profits
Both the Plaintiff's claim for expenses and the Defendant's claim for profits fail; the Plaintiff's profits from the hotel and jetty exceed his expenditure on maintaining the land
The Plaintiff was commended for warding off trespassers and greening the land, but the expenses were unquantified and difficult to assess. He established the hotel and jetty without the Defendant's concurrence and must have benefitted from those enterprises, exceeding the expenditure incurred.
Legal principles established
#- Where an instrument of transfer of an interest in land to two or more persons does not specify the nature of their rights, there is a presumption that they hold the interest as tenants in common in equal shares
- A subsequent title for the same land that does not indicate the share of each registered proprietor results in the proprietors being tenants in common in equal shares
Court orders
#- 1.The parties to engage a licensed property valuer to establish the market value of land parcel Kisumu/Kogony/2642 within 30 days
- 2.Upon valuation, the Plaintiff to have the first opportunity to make an offer to purchase the Defendant's half share interest within 30 days; in default, the Defendant to make an offer to purchase the Plaintiff's half share within 30 days
- 3.Alternatively, the parties to share land parcel Kisumu/Kogony/2642 equally and each be registered as proprietor of their respective half share
- 4.Alternatively, the parties to engage a licensed property agent to sell the land parcel and share the proceeds equally
- 5.Each party to bear his own costs in the suit and counterclaim
- 6.All the other prayers in the plaint and counterclaim dismissed
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land parcel Kisumu/Kogony/2642; Land Registration Act No. 3 of 2012, Section 91(2) applied
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nizar Hasham Virani v Shamsudin G. Nanji [2017] KEELC 1280 (KLR)", Case Analysis (2017). Kisumu H.C. Civil Suit (ELC) – plaint dated 26th September 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1280/eng@2017-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.