Joint property in Kenya, whether through joint tenancy or tenancy in common, often leads to disputes over management, sale, or development. Under the Land Registration Act, 2012 (LRA), co-owners have structured legal remedies to resolve deadlocks. This technical guide analyzes statutory provisions, judicial precedents, and procedural protocols for dispute resolution, emphasizing compliance with Kenya’s legal framework.
Legal Framework Governing Joint Ownership
1. Types of Co-Ownership
The LRA, under Section 91(2), recognizes two forms:
| Joint Tenancy | Tenancy in Common |
|---|---|
| Equal, undivided shares. | Distinct, divisible shares. |
| Right of survivorship applies. | No right of survivorship. |
| Presumed for spouses (Sec. 93). | Default presumption (Sec. 91(3)). |
2. Key Statutory Provisions
- Section 92: Entitles co-owners to a certified copy of the title and permits court-appointed managers for unmanageable disputes.
- Section 94: Allows partition applications to the Land Registrar or court-ordered sale if division is impractical.
- Section 95–96: Mandates mediation via the Land Registrar and prohibits subdivision below county acreage limits.
- Section 97: Requires chargee consent for partition of charged property.
3. Complementary Legislation
- Matrimonial Property Act (2013): Governs spousal property rights (Sec. 93, LRA).
- Civil Procedure Act (Cap. 21): Provides injunctive relief mechanisms (Order 40).
Dispute Resolution Mechanisms
1. Alternative Dispute Resolution (ADR)
Legal Basis: Article 159(2)(c), Constitution of Kenya 2010.
- Mediation: Conducted by the Land Registrar (Sec. 95) or private mediators accredited by the Mediation Accreditation Committee.
- Arbitration: Binding under the Arbitration Act (No. 4 of 1995) if stipulated in a co-ownership agreement.
Procedure:
- File a Form LRA 67 (Request for Mediation) at the county land registry.
- Mediator appointed within 14 days (Regulation 18, Land Registration Regulations, 2017).
- Outcome recorded as a Consent Order enforceable under Section 87, Land Act.
2. Partition of Property
Applicability: Tenancy in common (Sec. 94(1)).
Steps:
- Application: Submit Form LRA 68 to the Land Registrar, signed by all co-owners or with a court decree.
- Survey: Engage a licensed surveyor to demarcate shares (Sec. 18, Survey Act).
- Registrar’s Order: If feasible, partition is effected via Section 94(2). If not, sale ordered (Sec. 94(3)).
Case Law: Kariuki v Kariuki [2018] eKLR – Upheld partition rights despite opposition from one co-owner.
3. Court-Ordered Sale
Grounds: Impractical partition (e.g., sub-division below 0.1ha in urban areas).
Procedure:
- File suit in the Environment and Land Court (ELC) under Section 13, ELC Act (2011).
- Submit valuation report and proposed sale terms.
- Court appoints a licensed auctioneer via Order 22, Civil Procedure Rules.
Case Law: Wambugu v Gichuru [2020] eKLR – Ordered sale of disputed Nairobi property, proceeds split 50-50.
4. Severance of Joint Tenancy
Methods (Sec. 91(4)):
- Mutual Agreement: Executed via Form LRA 69 (Notice of Severance).
- Unilateral Action: E.g., transferring a share to a third party (Caroline Wanjiku Tuitu v Lucy Njambi [2021]).
- Court Order: Filed under ELC Petition No. XX of 20XX.
Effect: Converts joint tenancy to tenancy in common.
5. Injunctive Relief
Legal Basis: Order 40, Civil Procedure Rules.
Requirements:
- Prima facie case with a probability of success.
- Irreparable harm if injunction is denied.
- Balance of convenience favors applicant.
Case Law: Muriithi v Muthee [2019] eKLR – Injunction granted to halt unauthorized sale by co-owner.
Procedural Compliance & Documentation
1. Land Registrar Engagement
- Form LRA 67 (Mediation Request).
- Form LRA 68 (Partition Application).
- Consent of Chargee (Sec. 97) for mortgaged property.
2. ELC Litigation Requirements
- Plaint with particulars of co-ownership.
- Title Search (dated within 30 days).
- Valuation Report by Registered Valuer (RV).
3. Post-Judgment Steps
- Extract Decree: Filed under Order 21, Civil Procedure Rules.
- Execution: Via court-appointed auctioneer (if sale ordered).
Tax Implications
- Capital Gains Tax (CGT): 15% on sale proceeds (Sec. 34(2), Income Tax Act).
- Stamp Duty: 4% (urban) or 2% (rural) on transfer instruments.
- Exemptions: Transfers between spouses (Sec. 45, Stamp Duty Act).
Case Law Analysis
1. Gitonga v M’Ikiara [2017] eKLR
- Holding: Co-owners must act in utmost good faith (uberrimae fidei).
- Application: Unilateral leasing by one co-owner deemed voidable.
2. Njoroge v Kariuki [2022] eKLR
- Holding: Courts favor partition over sale unless economically unviable.
Why Engage Muthii Associates?
- Statutory Compliance: Precision in filing LRA forms and ELC pleadings.
- ADR Expertise: Accredited mediators for swift resolutions.
- Tax Optimization: Mitigate CGT and stamp duty liabilities.
- Litigation Strategy: Proven success in precedent-setting cases.
