Fatumа Mohamed v Mwinyihaji Mohamed Mwabwika
The bottom line
#A Kenyan court ruled that land registered to family members without specifying ownership type belongs to them as tenants in common, so surviving relatives cannot claim everything.
What this practically means
#Executive summary
#Key legal issues
#Nature of co-proprietorship where the title is silent
The trial court erred in presuming joint tenancy; the law presumes tenancy in common in equal shares where the instrument is silent
Section 101(1) of the repealed Registered Land Act required the register to show whether proprietors were joint or in common. Section 91(2) of the Land Registration Act 2012 provides that where the instrument does not specify the nature of rights, the presumption is tenancy in common in equal shares. The title was silent, so the trial court was obliged to presume proprietorship in common.
Effect of tenancy in common on survivorship and gifting
The deceased brothers' shares devolved to their estates; the plaintiff could not claim under survivorship, and a co-tenant could gift his share only with written consent of the other co-tenants
Section 103(1) RLA (replicated in section 91(5) LRA) provides that on the death of a proprietor in common his share is administered as part of his estate. Section 103(2) bars dealing with an undivided share except to another proprietor in common or with written consent of the remaining proprietors. The alleged gifts were not proved and no written consent existed.
Whether the defendant was a trespasser
The defendant was not a trespasser; she was invited onto the land by the registered proprietors, displacing any claim of unlawful entry
All the plaintiff's witnesses, including the plaintiff, conceded the defendant was invited onto the land during the lifetime of all registered proprietors. The alleged invitation or permission displaced the argument that she entered unlawfully. The claim of temporary stay was unsupported, as PW1 and PW2 admitted they were not present when any temporary condition was communicated.
Overriding interest and indefeasibility
The defendant's 20-year uncontroverted occupation created an overriding interest; the plaintiff could not rely on indefeasibility of title
Relying on section 30 RLA and sections 25 and 28 of the Land Registration Act 2012, and guided by the Supreme Court decision in Isack M'inanga Kiebia v Isaya Theuri M'Lintari, the court held that long occupation with the proprietor's permission gave the defendant an overriding interest over the portion she occupied, defeating the plaintiff's claim based on an indefeasible title.
Adverse possession and limitation
No adverse possession arose because possession was permissive and within a family setting
The elements of adverse possession require possession without the true owner's permission for an uninterrupted 12-year period. The defendant was invited onto the land as a relative, so possession was permissive. The court endorsed the Court of Appeal's caution in Samuel Kihamba v Mary Mbaisi against applying adverse possession within families against close relatives.
Whether eviction orders were warranted
Eviction orders were not warranted since the defendant was not a trespasser and a trust arose from the conduct of the plaintiff and his co-tenant
The suit was for trespass and eviction. Having found the defendant was not a trespasser, the foundation for eviction fell away. The court further found that the conduct of the plaintiff and his co-tenant created a trust fortifying the defendant's continued occupation.
Legal principles established
#- Where an instrument of transfer to two or more persons does not specify the nature of their rights, there is a presumption that they hold as tenants in common in equal shares
- On the death of a proprietor in common, his undivided share is administered as part of his estate; survivorship does not apply to tenancy in common
- Long uncontroverted occupation with permission of the proprietor can create an overriding interest defeating indefeasibility of title
- Adverse possession does not apply within families against close relatives
Court orders
#- 1.The orders granted by the trial Magistrate vide the judgement read on 30th July 2021 are vacated and substituted with orders dismissing the Plaintiff's suit
- 2.No orders as to costs
- On appeal from
- Principal Magistrate's Court at Kwale
- Kwale Land Case 29 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the Principal Magistrate's Court under the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fatumа Mohamed v Mwinyihaji Mohamed Mwabwika", Case Analysis (2023). Civil Appeal E002 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16917/eng@2023-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.