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ELCAllowedNot stated on the face of the ruling (Originating Summons dated 02.04.2024)· [2025] KEELC 3023 (KLR)

Schellekens & 2 others v Putte (Enviromental and Land Originating Summons E007 of 2024) [2025] KEELC 3023 (KLR)

Environment and Land Court
27 March 2025
YAY. M. Angima
1,882 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By an originating summons dated 02.04.2024 under Order 37 Rule 8 of the Civil Procedure Rules and Section 96 of the Land Registration Act, the plaintiffs sought severance of a tenancy in common over Subdivision No. 2107 of Section I Mainland North, valuation by a court-appointed valuer, sale of the property and equal distribution of proceeds, with the Deputy Registrar empowered to execute documents for uncooperative parties. The suit property had been the subject of a prior judgment declaring the parties tenants in common and restraining the defendant's adverse dealing. The defendant opposed, contending that the plaintiffs had sent auctioneers rather than seeking a negotiated way forward and that a forced sale would cause great prejudice as against a favourable market price. Angima J framed two issues: entitlement to the orders sought and costs. Applying Section 96(1) of the Land Registration Act, the court found the parties' relationship irretrievably broken down, the property a single residential bungalow incapable of partition, and the co-tenants unable to agree terms of sale. Noting the defendant's own concession on commissioning a valuation, the court directed sale upon valuation by a registered land valuer, with net proceeds shared equally and either party free to buy out the other at the valued price. On costs, the court applied the general rule that costs follow the event under the proviso to Section 27 of the Civil Procedure Act, relying on Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd, and awarded the plaintiffs the costs of the originating summons.

Key legal issues

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01

Whether the plaintiffs are entitled to an order for sale of land held in common

Holding

Yes. The suit property is a single residential bungalow incapable of partition, and the co-tenants' relationship has irretrievably broken down; the court exercised its discretion under Section 96(1) of the Land Registration Act to order valuation and sale with proceeds shared equally, allowing either party to buy out the other.

Reasoning

Section 96(1) permits an application to court where partition is impracticable and tenants in common cannot agree on terms of sale. The property is a single bungalow, hence physically indivisible. The defendant's own grounds of opposition accepted commissioning a valuation. The court therefore directed sale upon valuation, with an option for either co-tenant to buy out the other at the valued price.

p. 4
02

Who shall bear the costs of the application

Holding

The plaintiffs, as successful parties, are awarded the costs of the originating summons under the proviso to Section 27 of the Civil Procedure Act.

Reasoning

The court held that costs are discretionary but follow the event as a general rule. Finding no good reason to depart from that rule, it awarded the plaintiffs their costs, relying on Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd.

p. 4

Legal principles established

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  • Where land held by tenants in common is incapable of partition and the co-tenants' relationship has broken down such that they cannot agree on terms of sale, the court may under Section 96 of the Land Registration Act order valuation and sale, with a co-tenant at liberty to buy out the other's share.
  • Costs follow the event and a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise.

Court orders

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  1. 1.The property known as Parcel Reference Subdivision No. 2107 (Original No. 1669/1) of Section I Mainland North jointly owned by the parties as tenants in common shall be sold upon valuation by a professional, duly registered land valuer and the net proceeds shared equally between the co-tenants
  2. 2.Either of the parties is at liberty to buy off the other's share with the purchase price being the value set by the professional duly registered land valuer
  3. 3.The valuation cost shall be shared amongst the plaintiffs and the defendant equally failing which the cost shall be paid off from the proceeds of the sale
  4. 4.In case the parties do not agree on the valuer to undertake the valuation within 30 days from the date thereof, the Deputy Registrar of the court shall nominate one and notify the parties accordingly
  5. 5.The plaintiffs are awarded the costs of the originating summons

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 8
  • Land Registration ActSection 96 (including 96(1) and 96(2))
  • Civil Procedure Act (Cap 21)Section 27 (proviso)
  • Land Registration ActSection 94(3)(a) to (f)

Cases cited (2)

  • Shah & another v Haria & another
    (Environment and Land Case Civil Suit E340 of 2021) [2022] KEELC 2226 (KLR) (16 June 2022)
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA
Jurisdiction invoked
Order 37 Rule 8 of the Civil Procedure Rules and Section 96 of the Land Registration Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Schellekens & 2 others v Putte (Enviromental and Land Originating Summons E007 of 2024) [2025] KEELC 3023 (KLR)", Case Analysis (2025). Not stated on the face of the ruling (Originating Summons dated 02.04.2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3023/eng@2025-03-27

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