Kariuki & another v Githii & another
The bottom line
#A Kenyan court can force the sale of jointly owned land when it is too small to divide and the co-owners cannot agree.
What this practically means
#Executive summary
#Key legal issues
#Whether the tenancy in common should be terminated and the land sold
Termination and sale ordered since partition is impossible and the parties cannot agree
The court found it undisputed that the parties are registered as tenants in common in equal shares. The County Director of Physical Planning confirmed the parcel is too narrow to subdivide economically. Mediation failed and relations between the brothers had broken down, evidenced by police reports. Neither party was willing to buy the other out. Under Section 96(1) of the Land Registration Act, where partition would adversely affect proper use of the land and tenants cannot agree on sale terms, the court may order sale. Sale was therefore the only legal alternative.
Costs of the suit
Each party to bear own costs
Although the general rule under Section 27 of the Civil Procedure Act is that costs follow the event and a successful party should ordinarily be awarded costs, the court in its discretion directed that each party bear its own costs, without giving detailed reasons for departing from the general rule.
Legal principles established
#- Where land held by tenants in common is incapable of partition and co-owners cannot agree, the court may order sale under Section 96 of the Land Registration Act
Court orders
#- 1.The tenancy in common in respect of title No Nakuru Municipality Block 7/197 is terminated
- 2.A fresh valuation of Nakuru Municipality Block 7/197 shall be done by the Chief Valuer Nakuru County, at the cost of the Applicant and with participation of the Respondent
- 3.The Applicant is authorized to sell Nakuru Municipality Block 7/197 by private treaty for an amount not less than that stated in the valuation report
- 4.The Respondent shall execute the Sale Agreement, Transfer documents and all other necessary documents, failing which the Deputy Registrar of the Environment and Land Court shall do so
- 5.If the property cannot be sold by private treaty within 6 months, it shall be sold by public auction subject to the minimum value in the valuation report
- 6.The proceeds of the sale shall be shared equally between the Applicant and Respondent
- 7.The Applicant and Respondent shall be at liberty to purchase the suit property either at the auction or by private treaty
- 8.The Applicant shall refund the Respondent Kshs 105,265 being half of the sum expended towards payment of land rates
- 9.Each party shall bear own costs
- Jurisdiction invoked
- Sections 94 and 96 of the Land Registration Act, No. 3 of 2012; Order 19 & 37 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki & another v Githii & another", Case Analysis (2022). Environment & Land Case 361 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15296/eng@2022-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.