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ELCPartially AllowedNot stated in the extract (Originating Summons dated August 2, 2021)· [2022] KEELC 3639 (KLR)

Kiarie & 5 others v Murungu (As an Administrator of the Estate of Joseph Murungu Kiarie (Deceased)) & another (Environment & Land Case E027 of 2021) [2022] KEELC 3639 (KLR)

Environment and Land Court
21 July 2022
5,592 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Nairobi court ordered siblings' inherited land sold with proceeds shared equally, rejecting a brother's claim that building on it gave him ownership rights.

What this practically means

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Executive summary

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This was an Environment and Land Court suit brought by six siblings by Originating Summons seeking severance of joint ownership of Nairobi/Block 110/150 (Thome) inherited from their late father under a confirmed grant, sale of the property, equal sharing of proceeds, vacant possession, and authority for the Deputy Registrar to sign transfer documents. The defendants opposed, claiming that the 2nd defendant had been permitted by the late father to construct on the property and counterclaimed for a constructive trust, estoppel and adverse possession over the 0.06Ha occupied portion, with excision of a title in their favour. The court heard the matter by affidavit evidence and submissions pursuant to consensual directions. It found the claims of adverse possession and constructive trust unproved, holding that construction after the death of the original owner on June 30, 2005 amounted to intermeddling with the estate under Section 45 of the Law of Succession Act. It rejected the defendants' late demand for a full trial, they having consented to affidavit-mode hearing. Applying Sections 94 and 96 of the Land Registration Act, the court held the co-owners are tenants in common with equal undivided shares, ordered severance by sale with proceeds shared equally including the shares of two deceased co-owners devolving to their estates. The 2nd defendant was ordered to vacate within 45 days, failing which eviction would issue; no compensation was awarded, fixtures passing with the land under quicquid plantatur solo solo cedit. The counterclaim was dismissed and each party was ordered to bear their own costs.

Key legal issues

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01

Whether the defendants proved adverse possession or constructive trust

Holding

Both claims failed; no tangible evidence was tendered and construction after the father's death constituted intermeddling.

Reasoning

What is pleaded must be proved. The defendants relied on alleged permissions from their late father to build, but no tangible evidence supported those claims. Since the original owner died on June 30, 2005 and construction occurred thereafter, any dealings amounted to intermeddling with the estate under Section 45 of the Law of Succession Act. The defendants had consented to affidavit-mode hearing and never sought cross-examination, so their late demand for a full trial was rejected.

p. 7
02

Modus operandi of severance of the jointly-owned property

Holding

The property, held as tenancy in common, is incapable of partition and shall be severed through sale with proceeds shared equally.

Reasoning

The co-owners hold as tenants in common following the confirmation of grant. Under Sections 94(1) and 96(1) of the Land Registration Act, where partition is impossible or would adversely affect the land's use, the court may order sale. The county by-laws prohibit subdivisions below 0.5 acres and the parties agreed the property should be sold, so sale and equal sharing was the appropriate mode of severance.

p. 9
03

Whether the 2nd defendant should give vacant possession

Holding

Yes; having no proprietary entitlement, he must vacate to allow sale in vacant possession.

Reasoning

The counterclaim having been dismissed, the 2nd defendant has no entitlement to remain on land in which he holds no registered interest; his role is limited to representing the estate of the 1st defendant. Since the court ordered sale of the property, the harmonious process is to sell with vacant possession, and the plaintiffs' prayer for vacation was merited.

04

Treatment of the interests of deceased co-owners

Holding

Deceased co-owners' shares devolve to their estates and can only be dealt with under the Law of Succession Act.

Reasoning

Simon Murigi Kiarie and the 1st defendant are deceased co-owners. Their undivided interests form part of their estates upon severance and sale and cannot be alienated otherwise than under the Law of Succession Act. The 2nd defendant shall not benefit unless and until the estate of the 1st defendant is administered through the applicable law.

p. 10

Legal principles established

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  • Where land sought to be partitioned is incapable of partition or partition would adversely affect its use, tenants in common may apply to court for an order for sale and equal sharing of proceeds.
  • In a tenancy in common, each co-owner holds an equal undivided share and no co-owner can claim a particular portion.
  • Dealings with a deceased person's free property without authority amount to intermeddling under Section 45 of the Law of Succession Act and the court cannot sanction them.

Court orders

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  1. 1.The Counter Claim of the defendants is dismissed.
  2. 2.The suit land is to be sold and the proceeds shared in equal shares between the six plaintiffs and the estates of Joseph Murungu Kiarie and Simon Murigi Kiarie.
  3. 3.Viewing of the house shall be conducted jointly by the 1st plaintiff and the 2nd defendant as representative of the 1st defendant, with keys in their joint custody; other family members may join.
  4. 4.The suit property shall be sold in vacant possession; the 2nd defendant and anyone else residing on the suit property shall vacate within 45 days failing which an order of eviction shall take effect.
  5. 5.The Deputy Registrar of the court is authorized to sign all requisite documents to facilitate the sale and transfer of the land to prospective buyers.
  6. 6.Each party shall bear their own costs of the suit.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Civil Procedure ActSection 1A(3)
  • Land Registration ActSection 94(1)
  • Land Registration ActSection 96(1)
  • Law of Succession ActSection 45(1)
  • Civil Procedure RulesOrder 37

Cases cited (6)

  • Santaben Ramniklal Parmar & another v Beatrice Waruguru Gituru & 2 others
    [2019] eKLR
  • Cumberland Consolidated Holdings Ltd vs Ireland
    (1946) KB 264 at 270
  • Mistry Valji vs. Janendra Raichand et al
    [2016] eKLR
  • John Kiplangat Barbaret & Others vs. Isaiah Kiplangat Arap Cheluget
    [2017] eKLR
  • Baron Mathenge Munyoki v Dedan Mbangula Kithusi
    [2022] eKLR
  • Isabel Chelagat vs Samuel Tiro Rotich and 5 others
    [2012] eKLR
Jurisdiction invoked
Original jurisdiction under the Land Registration Act, 2012 (Sections 94 and 96); matters of succession dealt with under the Law of Succession Act (Section 45)

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, "Kiarie & 5 others v Murungu (As an Administrator of the Estate of Joseph Murungu Kiarie (Deceased)) & another (Environment & Land Case E027 of 2021) [2022] KEELC 3639 (KLR)", Case Analysis (2022). Not stated in the extract (Originating Summons dated August 2, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3639/eng@2022-07-21

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