Dipa Pulling v Suchan Investments Limited & 3 others [2019] KEELC 723 (KLR)
The bottom line
#A co-owner can sell their share of Kenyan land without anyone's consent, but cannot force their way onto the property to develop it.
What this practically means
#Executive summary
#Key legal issues
#Right of a tenant in common to dispose of an undivided share without consent
The 3rd and 4th defendants were lawfully entitled to sell their undivided shares to the 1st defendant without the consent of the plaintiff and the 2nd defendant.
The property was registered under the repealed Registration of Titles Act as tenants in common in equal shares absolutely; the will created no life interests, and the assent and register carried no restriction. The court relied on English textbook authority and Indian co-ownership jurisprudence. Claims of pre-emptive rights were unproved; the stay order and lis pendens rule did not invalidate a sale of shares only.
Whether the 1st defendant was lawfully registered as owner of the shares
The 1st defendant lawfully acquired and was registered as owner of the 3rd and 4th defendants' undivided half share.
The plaintiff's own pleadings, affidavit and annexed Grant No. I.R 99139 showed the transfer to the 1st defendant; the 2nd defendant had sworn an affidavit admitting the 1st defendant's ownership. His search was done on the expired old lease (I.R 15204), rendering it worthless, and the company-registry printout showing 2010 incorporation was an unpleaded, uncertified document of no evidential weight.
Rights of a co-owner as regards entry, possession and development
The 1st defendant could enter and jointly possess the property but could not claim or fence off any particular portion or forcibly develop it.
Shares in a tenancy in common are undivided; possession of a specific portion requires the consent of co-owners in possession, failing which the remedy is an application for partition or sale. The 1st defendant's forceful entry and fencing-off were therefore wrongful, though not justifying its permanent exclusion.
Whether the counter-claim survived withdrawal and want of verifying affidavit
The withdrawal under Order 25 Rule 1 related only to the plaintiff, so the counter-claim against the 2nd defendant survived; no verifying affidavit was required as the amended counter-claim predated the Civil Procedure Rules, 2010.
The notice of 10th November 2016 withdrew the counter-claim only as against the plaintiff, and such withdrawal is irrevocable. The verifying-affidavit requirement came into force on 17th December 2010, after the amended counter-claim was filed in April 2010 under the old Rules.
Remedy where co-owners cannot agree on occupation or partition
Where co-owners cannot agree on occupation, use or partition, the court may in exercise of its inherent power order valuation and sale of the property with proceeds shared according to shares, giving co-owners priority to buy out the others.
Partition was not feasible without demolishing the house cherished by the plaintiff and the 2nd defendant. Compelled partition being inappropriate, the court invoked its inherent power to order sale despite no party seeking it, subject to the Commissioner of Lands' consent, which cannot be unreasonably withheld.
Damages for the 1st defendant's forceful entry
The 1st defendant's forceful entry with goons onto property exclusively occupied by the 2nd defendant constituted trespass entitling the 2nd defendant to general damages of Kshs. 500,000.
Although a co-owner, the 1st defendant's title was disputed and its only lawful recourse was court assistance; instead it made a forceful and chaotic entry with strangers. Its special damages claims failed for want of proof, while the 2nd defendant's special damages also failed for want of specific proof.
Legal principles established
#- A tenant in common may sell or transfer his undivided share without the consent of the other co-owners or of the court; a purchaser takes the transferor's right to joint possession and to seek partition.
- A co-owner not in possession, or claiming a specific portion of jointly held property, cannot self-help; its remedy is a suit for partition or for joint possession.
- A unilateral withdrawal of a suit or counter-claim under Order 25 Rule 1 takes effect on filing and cannot be recalled or countermanded.
- A title under the Registration of Titles Act is indefeasible and persons dealing with registered co-owners need not investigate beyond the title and register for unregistered qualifications on disposal of shares.
Court orders
#- 1.Declared that Land Reference No. 209/1916/6 is owned by the plaintiff, the 1st defendant and the 2nd defendant as tenants in common in undivided shares of ½ for the 1st defendant and ¼ each for the plaintiff and the 2nd defendant.
- 2.Directed the plaintiff, the 1st defendant and the 2nd defendant to discuss and agree on partition and allocation of the suit property within 90 days.
- 3.In default of agreement, a registered valuer agreed by the parties or appointed by the Chairman of the Institution of Surveyors of Kenya shall value the suit property to ascertain current market value and a reserve price for a forced sale.
- 4.Valuation costs to be shared between the plaintiff, the 1st defendant and the 2nd defendant in the ratio of their shares.
- 5.Following valuation, the suit property to be sold by public auction or private treaty subject to the reserve price, proceeds to be shared in accordance with the parties' shares less sale expenses.
- 6.In case of auction, the Deputy Registrar may appoint a licensed auctioneer and proceeds shall be deposited in court for distribution.
- 7.Parties to co-operate fully in the sale and avail all documents necessary to complete it.
- 8.In default of co-operation, the Deputy Registrar at liberty to execute documents necessary to facilitate the sale and distribution of proceeds.
- 9.The parties at liberty to purchase the suit property by private treaty by agreement and to bid at the auction.
- 10.Pending partition or sale, an injunction restraining the 1st defendant from destroying and/or demolishing the structures or buildings on the suit property without the consent of the plaintiff and the 2nd defendant.
- 11.If partition or sale is impossible for reasons not attributable to any party, the parties to continue holding and occupying the property as tenants in common as of the date of judgment, each free to use and develop the portion in its possession.
- 12.The 1st defendant to pay the 2nd defendant Kshs. 500,000 as general damages for trespass.
- 13.Either party at liberty to apply to court, limited to procedural issues or matters arising from the orders.
- 14.Each party to bear its own costs of the suit and the counter-claims.
- Jurisdiction invoked
- First-instance civil suit under the Civil Procedure Act and Rules; the court exercised its inherent power to fashion final remedies in a co-ownership dispute
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dipa Pulling v Suchan Investments Limited & 3 others [2019] KEELC 723 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/723/eng@2019-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.