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ELCAllowedNot stated in the judgment· [2021] KEELC 847 (KLR)

Samuel Wamutu Waiganjo v Chief Land Registrar Nairobi [2021] KEELC 847 (KLR)

Not expressly stated in the judgment (judicial review chamber summons under Order 53, Rule 1(2) of the Civil Procedure Rules)
18 November 2021
LKL. Komingoi
1,206 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that a surviving joint tenant can be registered as sole landowner directly, without going through succession proceedings.

What this practically means

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Executive summary

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This was an unopposed chamber summons dated 30th August 2019 brought by Samuel Wamutu Waiganjo under Order 53, Rule 1(2) of the Civil Procedure Rules, seeking leave to apply for an order of mandamus directed at the Chief Land Registrar. The applicant sought to compel the Registrar to rectify errors or omissions on a certificate of title, to register the death certificate of Eddah Wangui Waiganjo, a joint tenant, and to register the applicant as sole proprietor of the suit land without going through succession proceedings. The Attorney General entered appearance for the respondent but filed no response or submissions despite directions of 19th February 2020, and the matter proceeded by way of the applicant's written submissions only. The court considered sections 79 and 80 of the Land Registration Act, 2012, which permit rectification of the register for errors, omissions, fraud or mistake, and applied the decision in Isabel Chelang'at v Samuel Tiro Rotich & 5 Others on the nature of joint tenancy, the four unities, and the right of survivorship. Finding that the applicant and the deceased were joint tenants and that the right of survivorship passes the deceased's interest to the surviving joint tenant, the court held the application merited. On 18th November 2021 the court issued mandamus compelling the Registrar to rectify the certificate of title, register the death certificate and register the applicant as proprietor without succession proceedings, and ordered that each party bear their own costs. Note: the judgment inconsistently refers to the parcel as LR NO 1441/10 and LR NO 10041/10.

Key legal issues

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Whether mandamus should issue to compel the Chief Land Registrar to rectify the register and register the applicant as sole proprietor of land held in joint tenancy following the death of the co-tenant

Holding

Yes. The applicant and the deceased were joint tenants; by the right of survivorship the applicant is entitled to be registered as sole proprietor without succession proceedings, and the Registrar's refusal to rectify the error warranted mandamus.

Reasoning

The court relied on section 79 of the Land Registration Act, 2012 permitting rectification of errors and omissions not materially affecting a proprietor's interests, and section 80 permitting court-ordered rectification for fraud or mistake. Applying the authority of Isabel Chelang'at on the four unities and jus accrescendi, the court found the applicant, as surviving joint tenant, entitled to the orders. The application was unopposed and the respondent filed no response or submissions.

p. 3

Legal principles established

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  • Joint tenancy carries the right of survivorship, so on the death of one joint tenant the surviving joint tenant becomes sole owner without the need for succession proceedings
  • The court may order rectification of the register where a registration was obtained, made or omitted by fraud or mistake

Court orders

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  1. 1.An order of mandamus issued to compel the Chief Land Registrar to rectify the errors and/or omissions on the Certificate of Title 10041/10
  2. 2.An order of mandamus to register the death certificate against LR NO 10041/10
  3. 3.An order of mandamus to register the applicant as the proprietor of LR NO 10041/10 without the need for him to go through succession proceedings
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53, Rule 1(2)
  • Land Registration Act, 2012Section 79
  • Land Registration Act, 2012Section 80

Cases cited (1)

  • Isabel Chelang'at Vs Samuel Tiro Rotich & 5 Others
    [2018] eKLR
Jurisdiction invoked
Order 53, Rule 1(2) of the Civil Procedure Rules and all other enabling powers and provisions of law

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, "Samuel Wamutu Waiganjo v Chief Land Registrar Nairobi [2021] KEELC 847 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/847/eng@2021-11-18

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