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ELCPartially AllowedNBI ELC 360 of 2010 (consolidated with Githunguri SPM's Case No. 91 of 2010)· [2019] KEELC 3594 (KLR)

Mburu Kihara v Mbugua Mungai Kiarie [2019] KEELC 3594 (KLR)

Environment and Land Court
2 May 2019
MLMbugua Lucy
1,619 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kiambu family land dispute stretching back decades ended with the court splitting Githunguri/Ikinu/527 into two acres for the defendant and 2.5 acres for the plaintiff.

What this practically means

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Executive summary

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This Environment and Land Court judgment at Thika resolved a decades-long dispute over the acreage each party holds in parcel Githunguri/Ikinu/527, registered in the names of both plaintiff Mburu Kihara and defendant Mbugua Mungai Kiarie. Plaintiff contended the parcel measures 4.5 acres, of which he sold defendant 1.75 acres in 1966 and a further 0.25 acres in 1971, totalling 2 acres. Defendant claimed entitlement to 3 acres, alleging 2.75 acres purchased from one Kahara Njeru plus 0.25 acres from plaintiff. The dispute, traced to a 1999 land dispute tribunal case quashed by the High Court for lack of jurisdiction, culminated in the consolidation of the plaintiff's NBI ELC 360 of 2010 with defendant's Githunguri SPMCC No. 91 of 2010. The court found the registered instruments—the 1966 agreement, green card and search certificate—depicted proprietors in common with defendant holding 1.75 acres; defendant's own cross-examination and defence acknowledged the 1.75 and 0.25 acre purchases. Applying sections 101 and 104 of the repealed Registered Land Act and sections 91 and 94 of the Land Registration Act, the court held plaintiff proved his claim on a balance of probability. It ordered subdivision: defendant 2 acres, plaintiff 2.5 acres; directed the County Land Registrar and County Surveyor, Kiambu to comply; issued a permanent injunction against interference with plaintiff's possession; authorized the Deputy Registrar to sign documents; dispensed with land control board consent; and ordered each party to bear their own costs.

Key legal issues

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01

Quantification of defendant's and plaintiff's shares in land registered in their names as proprietors in common

Holding

Defendant is entitled to 2 acres and plaintiff to 2.5 acres, as depicted in the registered instruments

Reasoning

The court relied on the 1966 sale agreement (P-Exhibit 9) showing transfer of 1.75 acres, the green card showing registration under Cap 300 with defendant owning 1.75 acres, and the search certificate. Defendant's own cross-examination and pleading admitted the 1.75 and 0.25 acre purchases. Under sections 101 and 104 of the repealed Registered Land Act and sections 91 and 94 of the Land Registration Act, the shares of proprietors in common are shown in the instruments and partition follows their agreement.

p. 2
02

Applicable law for partitioning land held in common

Holding

Partition of co-owned land is governed by section 94(1) of the Land Registration Act (formerly section 104 of the repealed Registered Land Act)

Reasoning

The court found the applicable law in section 104 of the repealed Registered Land Act, now section 94 of the Land Registration Act, which defines co-tenancy as ownership of land by two or more persons in undivided shares. The parties never invoked this mechanism to sever their interests, which the court attributed to the defendant's insistence on more land than was due to him, prolonging the dispute for 53 years.

p. 2

Legal principles established

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  • An instrument in favour of two or more registered persons and the registration giving effect to it must show whether they are joint proprietors or proprietors in common and the share of each proprietor in common
  • Any tenant in common may apply for partition of land occupied in common, and the Registrar shall effect partition in accordance with the agreement of the tenants in common
  • A claim on the entitlement to a share of land must be proved on a balance of probability

Court orders

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  1. 1.The land Githunguri/Ikinu/527 is to be subdivided and separately registered, defendant Mbugua Mungai Kiarie to get 2 acres and plaintiff Mburu Kihara to get 2.5 acres
  2. 2.The County Land Registrar and County Surveyor, Kiambu directed to ensure compliance with the subdivision order
  3. 3.A permanent injunction restraining defendant, his servants and/or agents from interfering with plaintiff's enjoyment and possession of his portion
  4. 4.Deputy Registrar authorized to sign all requisite documents to facilitate implementation of the judgment
  5. 5.Consent of the land control board dispensed with in implementation of the judgment
  6. 6.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Registered Land Act (Repealed)Section 101(1)
  • Registered Land Act (Repealed)Section 104
  • Land Registration ActSection 91(1)
  • Land Registration ActSection 94(1)
  • Cap 300 (Laws of Kenya)registration of the suit parcel
Jurisdiction invoked
not stated; first-instance suit before the Environment and Land Court

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, "Mburu Kihara v Mbugua Mungai Kiarie [2019] KEELC 3594 (KLR)", Case Analysis (2019). NBI ELC 360 of 2010 (consolidated with Githunguri SPM's Case No. 91 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3594/eng@2019-05-02

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