Raghwani & 2 others v Kerai (Legal Representative of the Estate of Kanji Mavji Kerai) (Environment & Land Case E042 of 2021) [2023] KEELC 623 (KLR)
The bottom line
#A Kenyan court can order co-owners stuck in a deadlock to sell their share of jointly owned land to the other co-owners who get first priority to buy.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants made out a case for valuation and sale of the Respondent's 25% undivided share under Section 96 of the Land Registration Act
Yes - the parties fell out, cooperation was impossible, and the Respondent admitted declining rental income, warranting the reliefs sought
The court found it undisputed that the Applicants and the deceased fell out in the management of the co-owned property and that the discord extended to the Respondent, who admitted declining rental proceeds. Settlement attempts failed. Guided by Section 96 of the Land Registration Act, the court held that where tenants in common cannot agree, sale with priority to willing co-owners is the remedy. The Respondent's undocumented grievances about past ventures did not defeat the application.
Nature of a tenancy in common
Tenants in common hold undivided shares with no right of survivorship; only unity of possession is essential
The court relied on Megarry & Wade and the Kurshed Begum Mirza case to characterise the co-ownership: each tenant in common holds a distinct undivided share, there is no survivorship, and only unity of possession is essential. This framed the legal basis for ordering separation and sale of a share under Section 96.
Legal principles established
#- Where co-owners as tenants in common cannot agree on use, occupation or partition of the property, the stalemate is resolved by sale of the property or a share, with co-owners given priority to buy out the others
- A substantive relief cannot be granted on the basis of a mere averment in an affidavit; it must be specifically sought
Court orders
#- 1.A valuation of LR No 209/4593/2 and of the shares of the tenants in common shall be undertaken by a registered valuer appointed by the Chairman of the Institution of Surveyors of Kenya at the instance of the Applicants with notice to the Respondent
- 2.An order for the sale and disposal of one quarter (25%) undivided share held by the Respondent as legal representative of the estate of Kanji Mavji Kerai in LR No 209/4593/2 to the Applicants on first priority
- 3.The parties shall co-operate fully in the sale and make available all necessary documents, failing which the Deputy Registrar shall be at liberty to execute any necessary document or instrument
- 4.The cost of the valuation and other incidentals to be met by the Applicants
- 5.Either party at liberty to apply to court limited to procedural issues or matters arising from the orders
- 6.Each party to bear own costs
- Jurisdiction invoked
- Order 37 Rules 3 and 8 of the Civil Procedure Rules, Section 96(1) of the Land Act/Land Registration Act No. 3 of 2012 and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Raghwani & 2 others v Kerai (Legal Representative of the Estate of Kanji Mavji Kerai) (Environment & Land Case E042 of 2021) [2023] KEELC 623 (KLR)", Case Analysis (2023). Originating Summons dated 14th September 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/623/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.