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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the defendants proved adverse possession or constructive trust
Both claims failed; no tangible evidence was tendered and construction after the father's death constituted intermeddling.
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.
Modus operandi of severance of the jointly-owned property
The property, held as tenancy in common, is incapable of partition and shall be severed through sale with proceeds shared equally.
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.
Whether the 2nd defendant should give vacant possession
Yes; having no proprietary entitlement, he must vacate to allow sale in vacant possession.
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.
Treatment of the interests of deceased co-owners
Deceased co-owners' shares devolve to their estates and can only be dealt with under the Law of Succession Act.
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.
Legal principles established
#- 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
#- 1.The Counter Claim of the defendants is dismissed.
- 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.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.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.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.Each party shall bear their own costs of the suit.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.