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ELCPartially AllowedNot stated in the judgment (Environment and Land Court suit, Mombasa)· [2020] KEELC 1774 (KLR)

Jane Njoki Kubai & another v James Kubai Mathu & another [2020] KEELC 1774 (KLR)

Environment and Land Court
9 July 2020
CYC.K Yano
3,668 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a co-owner of family land cannot be forced to stay, ordering a buy-out or sale with proceeds split equally.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (C.K Yano, J) determined a Notice of Motion dated 6th February 2019 by the 1st defendant, James Kubai, seeking valuation of the suit property, Subdivision Number 3007 of Section VI Mainland North, and its sale with proceeds distributed per a consent order recorded on 18th September 2017. By that consent, adopted by the court, the 1st plaintiff (the applicant's daughter) was included as a 50% co-owner and the title was to be rectified accordingly; an attempt to set the consent aside was dismissed on 14th March 2018. The plaintiffs (the applicant's wife and daughter) opposed, arguing the consent was in the spirit of family cohesiveness, that the main house was the family home, and that the family would be homeless if sold. The court framed one issue: whether the property should be valued, sold and proceeds distributed per the consent. The court held the consent was final and binding, created a co-tenancy in equal undivided shares under Section 91 of the Land Registration Act, and that the plaintiffs could not re-open settled issues. Applying Section 96, the court found the parties' relationship broken down, the applicant a retiree fearing harm, and held it unconscionable to force him to remain resident; the plaintiffs retained 50% and could buy him out. The application was allowed: joint ownership severed, joint valuation within 30 days, valuation costs shared 50:50, the 1st plaintiff to pay the applicant 50% of market value within three months failing which the property is to be sold and proceeds shared equally, with the Deputy Registrar empowered to execute documents on default. Each party was ordered to bear its own costs of the application.

Key legal issues

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01

Effect of the consent order of 18th September 2017

Holding

The consent settled ownership of the suit property; the 1st plaintiff became 50% co-owner and the 1st defendant retained 50%. The plaintiffs' replying affidavits impermissibly re-opened settled issues.

Reasoning

The consent was adopted by the court and an application to set it aside was dismissed on 14th March 2018. The resulting relationship is co-tenancy under Section 91 of the Land Registration Act. The plaintiffs' responses raised matters long agreed and settled, echoing Section 7 of the Civil Procedure Act on res judicata.

p. 3
02

Whether the court should order valuation and sale of co-owned land

Holding

Yes. Under Section 96(1) of the Land Registration Act the court has discretion to order valuation and sale of land held in common where parties cannot agree, and the applicant was entitled to realise his 50% share.

Reasoning

The relationship between the parties was no longer cordial; the applicant, a retiree fearing harm, wished to leave. The plaintiffs would not be rendered homeless as they retain 50% through the 1st plaintiff and may buy out the applicant. Denial would expose the applicant to risk and violate his fundamental rights.

p. 4

Legal principles established

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  • A consent order adopted by the court is a final determination binding on the parties and parties cannot re-litigate issues settled by it
  • Where land is owned by two persons in equal undivided shares, the relationship is co-tenancy under Section 91 of the Land Registration Act and a tenant in common may seek valuation and sale under Section 96
  • A co-owner cannot be compelled to continue residing on co-owned land against his wish where his safety is at risk; he may seek valuation and sale of his share
  • A tenant in common is entitled to purchase the land or any share offered for sale

Court orders

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  1. 1.The joint ownership in respect of the property known as SUBDIVISION NUMBER 3007 OF SECTION VI MAINLAND NORTH between the applicant and the 1st plaintiff is severed
  2. 2.A reputable valuer to be agreed upon by the parties within 30 days to value the property together with all developments for current market value and a reserve price in the event of a forced sale
  3. 3.Should any party fail to participate in appointing the valuer, the party who is ready may appoint one and the other party shall be bound by the valuation
  4. 4.Valuation costs to be shared between the applicant and the 1st plaintiff in the ratio 50%:50%
  5. 5.Following valuation, the 1st plaintiff to pay the applicant 50% of the assessed market value within three (3) months, failing which the property and all developments shall be sold subject to the reserve price and proceeds shared 50%:50%
  6. 6.In the event any party fails to co-operate in a sale, the Deputy Registrar may execute any necessary documents to facilitate the sale and distribution of proceeds
  7. 7.Each party to bear its own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Constitution of KenyaArticles 40, 47, 48, 50 and 159
  • Matrimonial Property Act, 2013Sections 2, 6(3), 7, 12(5) and 14
  • Land Registration Act, 2012Sections 91(1)-(8), 93, 94, 96(1)-(3)
  • Evidence ActSection 107

Cases cited (11)

  • John Florence Maritime Services Limited & another –v- Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) eKLR
  • Flora Wasike –v- Destimo Wamboko
    (1988) I KAR 625
  • Kassmir Wesonga Ongoma et al versus Ismael Otoicho Wanga
    (1987) eKLR
  • Mohamed Bare & 48 others –v- Kenya Rural Roads Authority
    (2016) eKLR
  • F. S. –v- E. Z
    (2016) eKLR
  • Julius Mainye Anyega –v- Ecobank Kenya Limited
    (2014) eKLR
  • Njeri Mwangi –v- Equity Bank Ltd & Another
    (2017) eKLR
  • PWK –v- JKG
    (2015) eKLR
  • Peter Mburu Echaria –v- Priscilla Njeri Echaria
    (2007) eKLR
  • Francis Njoroge –v- Virginia Wanjiru Njoroge
    Nairobi Civil Appeal No. 179 of 2009
  • TMW –v- FMC
    (2018) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property; application under Section 96 of the Land Registration Act, 2012

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, "Jane Njoki Kubai & another v James Kubai Mathu & another [2020] KEELC 1774 (KLR)", Case Analysis (2020). Not stated in the judgment (Environment and Land Court suit, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1774/eng@2020-07-09

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