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ELCDismissedEnvironment and Land Appeal 85 of 2021· [2023] KEELC 16058 (KLR)

Kirori v Kirori

Environment and Land Court
7 February 2023
BEB M Eboso
3,750 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed that co-owners registered in equal shares hold as tenants in common and can demand their share be severed.

What this practically means

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Executive summary

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The appellant appealed against the judgment of Hon M W Wanjala (SRM) in Thika CMC Environment and Land Case No 249 of 2018, which had ordered severance of the co-ownership of two parcels, Ngenda/Nyamangara/2008 and Ngenda/Mbari Ya Muihia/T.31, registered in 1996 and 1998 in the equal shares of the respondent (the deceased's third wife) and the appellant (the deceased's son). The appellant contended the co-ownership was a joint tenancy severable only upon breach of one of the four unities, that the deceased intended his wives to hold only life interests, and that the land was held in trust for unidentified beneficiaries. The respondent, supported by the Isabel Chelangat decision and section 91(8) of the Land Registration Act, maintained the co-ownership was a tenancy in common. Eboso J, applying the first-appeal duty to re-evaluate evidence, examined the parcel registers and found the deceased had conveyed the parcels to the parties absolutely in determined 'Equal Shares', bearing the hallmarks of tenancies in common. The court held that a tenant in common is entitled to severance as a matter of right, found no error in the trial court's order of severance, and found no evidence of any trust. The appeal was dismissed with no order as to costs, each party bearing their own costs, given the close family relationship between the parties.

Key legal issues

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01

Nature of the co-ownership: joint tenancy or tenancy in common

Holding

The registrations were tenancies in common; the interests of each co-owner were determined as 'Equal Shares' in the conveyances and parcel registers, negating joint tenancy

Reasoning

The court examined the parcel registers and found the deceased had determined each transferee's interest as an equal share absolutely. If a trust for others was intended, it could have been noted in the register. Section 91(2) of the Land Registration Act also creates a presumption of tenancy-in-common where the tenancy type is unspecified. The appellant's trust claim failed for want of evidence.

p. 6
02

Whether the trial magistrate erred in ordering severance

Holding

No error; a tenant in common is entitled to severance as a matter of right, so the trial court's order of severance was proper

Reasoning

Having found tenancies in common, the court applied the principle that each tenant in common holds an undivided share and may demand severance. The trial magistrate's finding that the respondent, as absolute co-registered proprietor, was entitled to severance was upheld. The appellant's contention of a trust for unidentified beneficiaries failed for lack of evidence.

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Costs of the appeal

Holding

No costs awarded despite costs following the event, because the parties are close relatives

Reasoning

Although costs are discretionary and follow the event, the court exercised discretion to deny costs given that the parties are step-mother and step-son and close relatives, and there was a need to heal wounds caused by the litigation.

p. 7

Legal principles established

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  • A tenant in common is entitled to severance of the co-ownership as a matter of right
  • Where the register does not specify the type of tenancy, the presumption is tenancy-in-common in equal shares

Court orders

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  1. 1.Appeal dismissed
  2. 2.Parties shall bear their respective costs of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 21
  • Land Registration Actsections 91(2), 91(4), 91(5), 91(8)
  • Registered Land Act (repealed)sections 101 to 105
  • Land Actsection 2

Cases cited (5)

  • Isabel Chelangat v Samuel Tiro Rotich & 5 Others
    [2012] eKLR

    Presumption of tenancy in common in absence of specification in land registers

  • Susan Munyi v Keshar Shiani
    (2013) eKLR

    Duty of first appellate court to analyze and evaluate evidence afresh and reach independent conclusions

  • Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates
    [2013] eKLR

    First appellate court's role to re-evaluate, re-assess and re-analyse the record

  • Mukazitoni Josephine v Attorney General Republic of Kenya
    [2015] eKLR

    Features of joint tenancy and tenancy in common; severance requires breaking one of the four unities

  • Kasera & another v Richard
    (Civil Appeal 52 of 2018) [2022] KECA 1025 (KLR)

    Section 91(2) Land Registration Act creates a rebuttable presumption of tenancy in common in equal shares

On appeal from
Thika Chief Magistrate Court
Thika MCL & E Case No 249 of 2018
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's judgment (Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kirori v Kirori", Case Analysis (2023). Environment and Land Appeal 85 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16058/eng@2023-02-07

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