Joint ownership of property is common in Kenya, often arising from co-investments, inheritance, or marital arrangements. However, disputes may arise when joint owners cannot agree on how to manage, use, or dispose of the property—whether to sell, lease, or develop it. Such disagreements can lead to a deadlock, making it impossible to make decisions about the land. This article examines the legal framework for resolving such disputes under the Land Registration Act, 2012 CAP 300 Laws of Kenya, relevant case law, and the available legal remedies for an aggrieved joint owner.
Legal Framework Governing Joint Ownership in Kenya
The Land Registration Act, 2012 governs land ownership in Kenya. Under Section 91(2) of the Act, land may be owned jointly or in common:
- Joint Tenancy – Where co-owners have equal, undivided shares, and the right of survivorship applies.
- Tenancy in Common – Where co-owners have distinct, divisible shares with no right of survivorship.
To have a holistic understanding of joint tenancy and tenancy in common and their distinct features, please read our previous article titled, Co-owning Property in Kenya: Joint Tenancy vs. Tenancy in Common
Disputes may arise in either form of ownership when the owners disagree on managing or disposing of the property.
The Land Registration Act, 2012, and its subsidiary legislation, Land Registration (General) Regulations, are the primary legislations governing land ownership and disputes in Kenya. Key provisions relevant to joint ownership disputes include:
- Section 91: Provides for the two co-tenancies, the joint and the tenancy in common, and gives meaning to the incidents they can occur and co-owners’ rights. It also provides for the general presumption where an instrument of transfer of interest between two or more people does not specify the nature of their rights; there shall be a presumption that they hold the interest as tenants in common.
- Section 92: Guarantees the right of each co-tenant to receive a copy of the certificate of that land with an endorsement signed by the Registrar. A designated co-tenant will receive the original title. Allows the court to appoint a manager to oversee the property if co-owners cannot agree on its management.
- Section 93: Provide that where a spouse obtains an interest in the land during the subsistence of the marriage, such property shall be deemed as matrimonial property and will be dealt with under the Matrimonial Property Act ( Cap.152)
- Section 94 entitles any of the tenants in common to make an application for partition to the Registrar with the consent of all the tenants; however, any of the tenants or someone who has a decree for the sale of an undivided share in the land can still make the application without the consent of all the tenants.
- Sections 95 and 96 entitle the Land Registrar to cause the parties to mediate/negotiate and either transfer the share or sell the property and divide the proceeds if the partition would result in less than the minimum acreage limit.
- Section 97 provides that any partition of an undivided share is subject to a charge; there can never be a partition without the lender’s written consent, thus discharging the entire property.
Remedies Available to an Aggrieved Joint Owner
When joint owners cannot agree on whether to sell, lease, or develop the land, the legal course of action depends on the nature of ownership and the rights conferred by the Land Registration Act. The following are some of the available remedies for an aggrieved co-tenant:
- Negotiation and Mediation – Under Article 159 (3) of the Constitution, Alternative Dispute Resolution (ADR) mechanisms such as negotiation, mediation, and arbitration are recognized and even encouraged forms of alternative justice systems. Accordingly, the first step for any aggrieved joint tenant is to explore an amicable resolution of the disagreement with the co-tenant(s) through a neutral mediator or negotiations between the parties.
- Application for Partition (For Tenants in Common) – Under Section 94 of the Land Registration Act, 2012, a co-owner holding land as a tenant in common may apply to the Land Registrar under the prescribed form for partition. If the partition is practical, the Registrar may divide the property accordingly. If the partition will result in the acreage below the minimum limit, then the Registrar may order the sale of the property and the proceeds divided between the co-tenants. The Environment and Land Court ( ELC) has constantly upheld the principle that a tenant in common has the right to seek partition if joint ownership is no longer tenable.
- Sale and Division of Proceeds (For Joint Tenants or Where Partition is Impossible) – If partition is impractical, Section 94(3) of the Land Registration Act, 2012, allows the court/Land Registrar to order the sale of the property and distribution of proceeds among the co-owners.
- Severance of Joint Tenancy – A joint tenant may sever the joint tenancy, converting it into a tenancy in common. Severance can be done through:
- Mutual agreement.
- Conduct inconsistent with joint tenancy (e.g., one party unilaterally selling their interest).
- The court order, as seen in Caroline Wanjiku Tuitu v Lucy Njambi & Another [2021] eKLR, where the court ruled in favor of severance when one party unilaterally sought to dispose of joint property.
- Injunction to Restrain Unilateral Actions – If one co-owner attempts to dispose of or interfere with the property unilaterally, the aggrieved co-owner can seek an injunction to restrain such actions. This remedy is available under the Civil Procedure Act and the Land Registration Act of 2012. The ELC Court has previously granted injunctions to prevent one co-owner from selling the property without the consent of the other co-owners. The court held that unilateral actions by one co-owner are a breach of the rights of the other co-owners.
Conclusion
When joint property owners disagree on the disposition of land, several legal remedies exist under the Land Registration Act, 2012, and judicial precedent. Depending on the circumstances, an aggrieved co-owner may seek ADR mechanisms, partition, severance, court-ordered sale, or compensation. Proper legal counsel is crucial to navigating these disputes effectively and ensuring a just resolution.
How We Can Help You
At Njaga & Co. Advocates, we understand that real estate, property, and conveyancing matters are often complex and require meticulous attention to detail. Whether you are buying, selling, transferring, or resolving disputes over property, our team of experienced legal professionals is here to provide comprehensive legal solutions tailored to your needs. Reach out to Njaga & Co. Advocates today for expert legal assistance in all real estate, property, and conveyancing matters.
Legal Disclaimer
This article does not constitute legal advice. For expert legal guidance on property disputes, consult Njaga & Co. Advocates for personalized assistance.
