[2016] KEELC 444 (KLR)
The court found that the land parcel Kericho/Silibwet/944 is registered in the names of both the plaintiff and defendant, with no indication as to whether the ownership is joint or in common. Applying the principle from Moses Bii vs Kericho District Land Registrar & Another, the court held that, in the absence of...
Source-derived case information.
- Citation
- [2016] KEELC 444 (KLR)
- Parties
- Plaintiff: Kiprono arap Koske; Defendant: John Cheruiyot Koske
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 6 of 2015
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- suit allowed
- Legal Topics
- Co Ownership of Land, Subdivision of Land, Registration of Titles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kiprono arap Koske
Plaintiff
John Cheruiyot Koske
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to subdivision of land registered in joint names with the defendant.
- 2 Whether the existence of a previously pending suit (Nakuru HCCC No. 47 of 2008) bars the present claim.
- 3 Whether the land is held jointly or in common and the implications for division.
Ratio Decidendi
The court found that the land parcel Kericho/Silibwet/944 is registered in the names of both the plaintiff and defendant, with no indication as to whether the ownership is joint or in common. Applying the principle from Moses Bii vs Kericho District Land Registrar & Another, the court held that, in the absence of express indication, the land is presumed to be held in common, entitling each proprietor to an equal undivided share. The defendant's argument that a pending suit barred subdivision was rejected, as evidence showed the referenced suit had been concluded in favour of both parties. The court concluded that there was no valid reason to deny the plaintiff's request for subdivision...
Court Disposition
suit allowed
Orders
- The land parcel Kericho/Silibwet/944 shall be subdivided into two equal portions, one to be registered in the name of Kiprono arap Koske and the other in the name of John Cheruiyot Koske.
- The defendant is ordered to make available the original title deed and execute all requisite documents required to effect the subdivision; in default, the Deputy Registrar shall execute the necessary documents.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT KERICHO
CIVIL SUIT NO. 6 OF 2015
KIPRONO ARAP KOSKE………………..……….…………………………….PLAINTIFF
VERSUS
JOHN CHERUIYOT KOSKE………….....……………….…………………..DEFENDANT
JUDGMENT
(Suit seeking subdivision of land held in joint names of plaintiff and defendant; no reason to deny the plaintiff the said orders; suit by plaintiff succeeds)
The suit herein concerns the ownership of the land parcel Kericho/Silibwet/944 (hereinafter the suit land) which land is registered in the joint names of the plaintiff and defendant. The two litigants are step brothers and became registered as proprietors on 17th February 2014. The land in issue measures 1. 0 Hectares. In this suit, commenced by way of plaint on 5th February 2015, the plaintiff wants the suit land subdivided into two equal portions so that he can get his title deed to his half share.
The defendant filed a brief defence vide which he pleaded that a division of the land ought not to be ordered for the reason that there is a pending matter being Nakuru HCCC No. 47 of 2008 where the two litigants are joint defendants. He asked that the suit be dismissed.
The plaintiff filed a Reply to Defence through which he averred that the suit Nakuru HCCC No. 47 of 2008 is concluded and annexed a copy of the decree. It seems from it that the suit against the two litigants was dismissed.
At the hearing of this case, only the plaintiff attended. He testified as the sole witness and basically led evidence to the effect that the land is registered in the names of himself and the defendant. He produced a copy of the title deed and official search to demonstrate this. He stated that the defendant has possession of the original title deed. He testified that the land was acquired through succession. He asked for his half share of 0. 5 Ha.
Ms. Chepkirui for the plaintiff made brief submissions and was of the view that the plaintiff is entitled to the orders sought.
I have considered the matter. The only evidence that I have is that of the plaintiff as the defendant opted not to tender any evidence. I have seen that the land is registered in the two names of the plaintiff and defendant. It is not clear whether the ownership is joint or in common for there is no indication of this in the title deed or the search. In the case of Moses Bii vs Kericho District Land Registrar & Another, Kericho ELC No. 8 of 2014 (2015) eKLR, I did hold that where there are more than one proprietors, and there is no notice as to whether title is held jointly or in common, barring any special circumstances, the default position ought to be that the title is held in common. I take that position in this case as well, in which event, the presumption is that the two proprietors have equal undivided shares in the property. That being the position, I do not see why the defendant would insist to have the title continue being held in the two names. The plaintiff wants a separate title in his own name and I have no reason to deny him this prayer. The excuse by the defendant, that there is a pending suit, holds no water since it is apparent that the said suit was concluded, indeed in their favour.
From the foregoing, I am of the opinion that the plaintiff is deserving of the orders sought. I therefore, allow this suit and make the following orders :-
a) That an order is hereby issued that the land parcel Kericho/Silibwet/944 be subdivided into two equal portions, one portion to be registered in the name of Kiprono arap Koske and the other portion to be registered in the name of John Cheruiyot Koske, the plaintiff and defendant respectively.
b) That the defendant is hereby ordered to make available the original title deed and execute all requisite documents required in order to effect the subdivision of the property. In default, the Deputy Registrar to execute the necessary documents.
c) That the costs of the subdivision will be shared equally between the plaintiff and defendant.
d) Given the relationship of the parties, there shall be no orders as to costs.
Judgment accordingly.
Dated, Signed and delivered on this 30th day of September, 2016
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
PRESENT
No appearance on the part of M/s Koech chepkirui & Co. Advocates for Plaintiff.
Defendant acting in person – Absent
Court Assistant; Wambany