Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Appeal from Gichugu PMCC No. 10 of 2015· [2020] KEELC 1945 (KLR)

Cyrus Muchira Ndambiri v Faith Wanjiru Ndambiri [2020] KEELC 1945 (KLR)

Environment and Land Court
22 May 2020
ECE.C. Cherono
2,005 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court ruled you cannot split jointly owned land without both owners signing and registering a formal severance document.

What this practically means

#

Executive summary

#
This was a first appeal to the Environment and Land Court at Kerugoya against the judgment of Hon. Mogire Onkoba, SRM, in Gichugu PMCC No. 10 of 2015 delivered on 21st June 2016. The respondent, as plaintiff, had obtained orders compelling the appellant to execute documents to partition L.R. BARAGWI/THUMAITA/1289, registered jointly in their names since 1999. The trial magistrate relied on Section 91(8) of the Land Registration Act, 2012 to hold that the parties co-owned as tenants in common. On appeal, the appellant argued that the registration occurred under the repealed Registered Land Act, Cap 300, and that joint proprietorship under Section 102 could only be severed by a prescribed instrument, which was never filed, and that Section 91(8) is not retrospective. The respondent contended that joint proprietorship should be severable like a marriage, invoking Articles 40 and 64 of the Constitution. E.C. Cherono, ELC J, held that Section 91(8) applies only to joint tenancies created on or after the effective date of the Land Registration Act and cannot operate retrospectively, and that severance of a joint tenancy is only lawful upon execution and registration of an instrument in the prescribed form under Section 91(7). Following Isabel Chelangat and Mukazitoni Josephine, the court found the appeal merited, set aside the trial judgment, substituted an order dismissing the plaintiff's claim, and awarded the costs of the appeal and the suit to the appellant.

Key legal issues

#
01

Whether a joint proprietorship registered in 1999 under the Registered Land Act, Cap 300 can be converted to tenancy in common by invoking Section 91(8) of the Land Registration Act, 2012

Holding

It cannot. The retrospective application of Section 91(8) was a misdirection; joint proprietorship under the old regime could only be severed by an instrument under Section 102(3) of the repealed Act, which was never filed.

Reasoning

The parties were registered as joint proprietors in 1999 under the Registered Land Act, Cap 300. Section 102(1) of that Act provided that joint proprietors hold in undivided shares, and Section 102(3) required a prescribed instrument and registration to effect severance. No such instrument was filed. Section 91(8) of the Land Registration Act governs joint tenancies created on or after the effective date and is not retrospective. The trial magistrate therefore misdirected himself in law and fact by relying on it to order partition.

p. 2
02

The legal distinction between joint tenancy and tenancy in common

Holding

Joint tenancy carries the right of survivorship and the four unities, while tenants in common hold distinct but undivided shares; conversion between the two requires the doctrine of severance completed by registration.

Reasoning

The court adopted the reasoning in Isabel Chelangat and Mukazitoni Josephine distinguishing the two forms of co-ownership. A joint tenancy imparts the properties of a single owner as against third parties and carries jus accrescendi; a tenancy in common confers separate undivided interests. Severance requires breaking the unities and can only be effected by executing and registering an instrument in the prescribed form under Section 91(7) of the Land Registration Act.

p. 3

Legal principles established

#
  • Section 91(8) of the Land Registration Act, 2012 applies only prospectively and cannot be used to convert joint proprietorships registered under the repealed Registered Land Act before its effective date
  • A joint tenancy can only be converted into a tenancy in common by severance, completed by registration of an instrument in the prescribed form executed by the joint proprietors

Court orders

#
  1. 1.The appeal is allowed
  2. 2.The judgment of the Senior Resident Magistrate in PMCC No. 10 of 2015 delivered on 21st June 2016 is set aside and substituted with an order dismissing the plaintiff's claim
  3. 3.The costs of the appeal and of the suit below (PMCC No. 10 of 2015, Gichugu) to be borne by the plaintiff/respondent

Authorities

#

Legislation

  • Land Registration ActSection 91(7)
  • Land Registration ActSection 91(8)
  • Registered Land Act, Cap 300 (repealed)Section 102(1)
  • Registered Land Act, Cap 300 (repealed)Section 102(3)
  • Constitution of Kenya, 2010Article 64
  • Constitution of Kenya, 2010Article 40

Cases cited (2)

  • Isabel Chelangat Vs Samuel Tirop Rotich & 5 others
    (2012) e K.L.R
  • Mukazitoni Josephine Vs Attorney General Republic of Kenya
    (2015) e K.L.R
On appeal from
Senior Resident Magistrate's Court, Gichugu
PMCC No. 10 of 2015
Jurisdiction invoked
First appeal to the Environment and Land Court against the judgment of the Senior Resident Magistrate in PMCC No. 10 of 2015 (statutory first-appeal jurisdiction of the ELC)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Cyrus Muchira Ndambiri v Faith Wanjiru Ndambiri [2020] KEELC 1945 (KLR)", Case Analysis (2020). ELC Appeal from Gichugu PMCC No. 10 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1945/eng@2020-05-22

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