[2023] KEELC 16058 (KLR)

Kirori v Kirori (Environment and Land Appeal 85 of 2021) [2023] KEELC 16058 (KLR) (7 February 2023) (Judgment)

Neutral citation: [2023] KEELC 16058 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Environment and Land Appeal 85 of 2021

BM Eboso, J

February 7, 2023

Between

Gabriel Njoroge Kirori

Appellant

and

Esther Njambi Kirori

Respondent

(Being an Appeal against the Judgment of Hon. M. W Wanjala (SRM) delivered in Thika Chief Magistrate Court on 30/9/2021 in Thika MCL & E Case No 249 of 2018)

Judgment

Background 1. This appeal challenges the Judgment rendered on September 30, 2021 in Thika CMC Environment and Land Case No 249 of 2018 by Hon M W Wanjala, SRM. The respondent in this appeal was the plaintiff in the said suit. The appellant was the defendant. The two parties were registered as co-owners/concurrent owners in equal shares, of parcel numbers Ngenda/Nyamangara/2008 and Ngenda/Mbari Ya Muihia/T.31. The dispute in the trial court revolved around the question as to whether the respondent was entitled to a severance of the co-ownership/concurrent ownership. Before I delve into the key issues that fall for determination in the appeal, I will outline a brief background to the appeal.

2. The respondent is one of the three wives of the late Kirori Ng’ang’a [hereinafter referred to as “the deceased”]. The appellant is a biological son of the deceased and a step-son to the respondent. The two parcels of land belonged to the late Kirori Ng’ang’a [hereinafter referred to as “the deceased”]. In 1996, the deceased decided to convey various parcels of land to his three wives and children. He, among other conveyances, conveyed Ngenda/Nyamangara/2008 and Ngenda/Mbari Ya Muihia /T.31 into the names of the respondent and the appellant as freehold and absolute co-owners in equal shares.

3. About 22 years after their registration as co-owners in equal shares of the two suit properties, and 17 years after the death of the deceased, the respondent initiated the suit giving rise to the Judgment that culminated in this appeal. She sought, among other reliefs, an order directing severance of the co-ownership and vesting her one half portion of each parcel into her name. She initiated the suit through a plaint dated November 21, 2018. The plaint was personally drawn by herself, in person.

4. The appellant contested the plea through a statement of defence dated February 18, 2019. He admitted that they were registered as co-owners of the two parcels of land but added that there were other beneficiaries to the two parcels of land, hence the registration could not be severed and the parcels could not be divided between the two registered co-owners. He did not, however, disclose the identity of the other beneficiaries. He averred that the respondent was being “misguided” by land brokers and greedy relatives who wanted the land to be divided so that they could take advantage of her advanced age to dispose the land and defraud her.

5. At trial, the respondent testified as PW1. She stated that the appellant was a biological son to her co-wife, Teresia Njuru Kirori, and that the appellant’s mother, like herself, was given her share of land by their late husband. It was her case that she was the absolute proprietor of the one-half portion of each of the two parcels and that she was entitled to a severance of the co-ownership and to a one-half share of the suit properties.

6. The appellant testified as DW1. He called one Ndungu Ngugi Muneri as a defence witness. His evidence was that his late father caused his lands to be registered in the names of his three wives and sons “so as to protect inheritance.” He added that the two parcels of land were ancestral. He stated that he was a son to the deceased’s first wife, Teresia Njuru Kirori, and that he did not have a share of the land given to the first house. He contended that the deceased wanted his three wives to only have life interest in the lands. He urged the court to reject the respondent’s plea for severance.

7. Upon considering the evidence and submissions presented to the court, the trial magistrate rendered the impugned Judgment in which he found that there was no evidence to support the contention that the registration of the parties to this appeal as co-owners of the two suit properties was intended to give the respondent only a life interest in the suit properties while reserving the land for the deceased’s sons and future generations. The trial magistrate held that, as an absolute co-registered proprietor, the respondent was entitled to orders of severance.

Appeal 8. Aggrieved by the Judgment of the trial court, the appellant brought this appeal, advancing the following six verbatim grounds of appeal:1. That the trial magistrate erred in law by failing to appreciate the provisions of order 21 of the Civil Procedure Rules 2010 when he failed to analyze the parties evidence, frame up issues for determination, give reasons for his decision thereby rendering the entire judgment inadequate and lacking in substance thereby a miscarriage of justice, thereby arriving at an erroneous decision.2. That learned trial magistrate erred in law and in fact by falling to analyze the appellant’s pleadings, evidence, submissions and authorities relied on thereby arriving at an erroneous decision.3. That the learned trial magistrate erred in law and in fact in failing to differentiate between joint tenancy and tenancy in common and how each should be severed and failed to appreciate the law governing the same thereby arriving at an erroneous decision by ordering the sub-division of land parcel Ng’enda/Nyamagara/2008 and Ng’enda/Mbari ya Muihia/T. 31 between the appellant and the respondent herein.4. That the learned trial magistrate erred in law and in fact by ordering the subdivision of the said parcels without considering the circumstances under which such registration was done, the history thereof, intention thereof and failed to give reason for such holding thereby arriving at an erroneous decision.5. The learned trial magistrate erred in law and fact by ordering the subdivision of the two parcels of land when no such evidence as pleaded by the (plaintiff) respondent was led to such a verdict thereby infringing the legal known principle that a party should be bound by his or her pleadings thereby arriving at a wrong decision.6. The learned trial magistrate erred in law and fact in failing to analyze and familiarize himself with the provisions of the entire section 91 of the Land Registration Act 2012 in reaching his verdict thereby arriving at an erroneous decision.

9. The appellant prayed for orders setting aside the judgement and decree of the trial court and substituting therewith an order dismissing the respondent’s suit in the lower court, with an award of costs in his favour.

Submissions 10. The appeal was canvassed through written submissions dated October 7, 2022, filed by M/s Kanyi Kiruchi & Co Advocates. Counsel for the appellant identified the following as the four issues that fall for determination in this appeal: (i) Whether there was a joint tenancy between the two parties to this appeal in relation to the suit properties; (ii) Whether this court should set aside the Judgment of the trial court; (iii) Whether the appeal should succeed; (iv) the issue relating to costs.

11. Counsel made reference to the evidence of DW1 and DW2 and submitted that the suit properties are held under joint tenancy. Citing section 91(4) of the Land Registration Act, counsel contended that a joint tenancy cannot be severed unless one of the four unities of title, time, possession or interest is broken.

12. Counsel further contended that the trial court failed to consider the circumstances under which the parties to the appeal were registered as proprietors of the suit properties; the history of the registration; and the intention of the deceased. Counsel added that Section 91(8) of the Land Registration Act did not apply to the two registrations because the registrations took place before the Act was enacted. Counsel added that it was clear from the evidence of the respondent that she wanted severance so as to sell the suit properties. Counsel urged the court to allow the appeal with costs.

13. The respondent opposed the appeal through written submissions dated October 3, 2022, filed by Kirigo Kinyua & Associates. Counsel for the respondent cited the decision in Isabel Chelangat v Samuel Tiro Rotich & 5 Others [2012]eKLR and the provisions in section 91(8) of the Land Registration Act and submitted that the co-ownership between the two parties is that of tenancy in common. Counsel added that in the absence of specifications in the land registers, the presumption is that the existing co-ownership is that of tenancy in common. Counsel urged the court to dismiss the appeal.

Analysis and Determination 14. I have read and considered the original record of the trial court; the record of appeal in this appeal; and the parties’ respective submissions. I have also considered the legal frameworks, and the jurisprudence relevant to the key questions that fall for determination in this appeal. The appellant advanced six (6) grounds of appeal in the memorandum of appeal dated October 15, 2021. In his subsequent written submissions dated October 7, 2022, counsel for the appellant condensed the six grounds of appeal into the following four issues: (i) Whether there was a joint tenancy in existence between the parties to this appeal in relation to the suit properties; (ii) Whether this court should set aside the Judgment and Decree of the trial court; (iii) Whether this appeal should succeed; and (iv) the question of costs of the suit.

15. Taking into account the grounds of appeal and the parties’ submissions in this appeal, in my view, the following are the three key issues that fall for determination in this appeal: (i) Whether there was a joint tenancy between the parties to this appeal in terms of their registration as co-owners/concurrent owners of the two suit properties; (ii) Whether the trial magistrate erred in granting orders of severance of the co-ownership of the suit properties; and (iii) What order should be made in relation to costs of this appeal. I will dispose the three issues sequentially in the above order. Before I dispose them, I will briefly outline the principle that guides this court when exercising appellate jurisdiction.

16. This is a first appeal. The principle upon which a first appellate court exercises jurisdiction is well settled. The task of the first appellate court was summarized by the Court of Appeal in the case of Susan Munyi v Keshar Shiani (2013)eKLR as follows:-“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions.”

17. The above principle was similarly outlined in Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates[2013] eKLR as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.”

18. The first issue to be determined is whether there was a joint tenancy between the parties to this appeal in relation to their registration as co-owners/concurrent owners of the two suit properties. Counsel for the appellant submitted that the two suit properties are held on joint tenancy basis and are therefore governed by the framework in section 91(4) of the Land Registration Act.

19. The registration of the parties to this appeal as co-owners in equal shares was effected in 1996 and 1998 respectively. The relevant substantive and registration frameworks in force at that time was the repealed Registered Land Act (the repealed Act). Section 101 to 105 of the repealed Act contained clear frameworks outlining distinguishing features of joint tenancy and tenancy in common. Parliament subsequently enacted the Land Act of 2012 and the Land Registration Act of 2012, which are the prevailing substantive and registration frameworks. Both statutes have elaborate frameworks that clearly define the rights of co-owners who are registered either as tenants in common or joint tenants. Suffice it to state that, by and large, the distinguishing features that were in Sections 101 to 105 of the repealed Act were re-enacted in Sections 91 to 97 of the Land Registration Act. Secondly, for avoidance of doubt, Parliament went a step further to define the two categories of concurrent ownerships in Section 2 of the Land Act 2012.

20. Section 2 of the Land Act defines joint tenancy as follows:“Joint tenancy” means a form of concurrent ownership of land where two or more persons each possess the land simultaneously and have undivided interest in the land under which upon the death of one owner it is transferred to the surviving owner or owners.”

21. Tenancy in common is defined in section 2 of the Land Act as follows:-“A form of concurrent ownership of land in which two or more persons possess the land simultaneously where each person holds an undivided interest in the property and each party has the right to alienate, or transfer their interest.”

22. The key features of a joint tenancy are set out in section 91(4) of the Land Registration Act. The tenor and import of a joint tenancy under the framework in section 91(4) of the Land Registration Act is that: (i) neither of the co-owners would be entitled to any separate share in the two parcels; (ii) disposition may be made only by the joint co-owners; (iii) on death of a joint co-owner, the deceased co-owner’s interest would vest in the surviving co-owner; and that a joint co-owner may transfer his/her interest inter vivos to the other joint co-owner but not to any other person, and any purported transfer of an interest to a third party would be void.

23. The converse of a joint tenancy is a tenancy-in-common. The key features of a tenancy-in-common are spelt out in section 91(5) of the Land Registration Act. In summary, where land is owned on the basis of tenancy-in-common, each co-owner is entitled to an undivided share in the whole. Secondly, on the death of one co-owner-in-common, the deceased co-owner’s share is treated as part of his estate.

24. Not too long ago, a five judge bench of the Court of Appeal was confronted with a question relating to the key features of the two types of tenancy in Mukazitoni Josephine v Attorney General Republic of Kenya [2015] eKLR. The five judge bench of the Court of Appeal pronounced itself on the question as follows:"34. We have considered the appellant’s contention and the learned judge’s finding. The title document to the property has two names and this is concurrent ownership. There is no indication as to whether the property is held on a tenancy-in-common or joint tenancy or tenancy in entirety. When a property is registered in more than one name, in the absence of a contrary entry in the register, the property is deemed to be held in joint tenancy and not tenancy-in-common or tenancy in entirety. A tenancy in common or tenancy in entirety means that the interest of each registered owner is determinable and severable; in a joint tenancy, the interest of each owner is indeterminable, each owns all and nothing.35. A joint tenancy cannot be severed unless one of the four unities of title, time, possession or interest is broken. A joint tenant has the right to the entire property or none – since the other joint tenant also has a right to the entire property. This is expressed in latin as totem tenet et nihit tenet, a joint tenant holds everything and nothing.”

25. Similarly the Court of Appeal recently pronounced itself on this in the case of Kasera & another v Richard (Civil Appeal 52 of 2018) [2022] KECA 1025 (KLR) held;“One of the main changes introduced by the 2012 Act was section 91(2) which now provides a default principle as follows:“Except as otherwise provided in any written law, where the instrument of transfer of an interest of land to two or more persons does not specify the nature of their rights there shall be a presumption that they hold the interest as tenants in common in equal shares”. (Emphasis added)20. Thus, there was created by the 2012 Act a rebuttable presumption that where the shares of two or more proprietors were not disclosed, the proprietors were deemed by law to be proprietors or tenants in common. If the presumption is not rebutted, upon the death of one of the tenants in common, his share vests in his estate rather than in the surviving tenant.”

26. There was no contestation about the entries in the parcel registers relating to the two properties. The respective parcel registers were produced as exhibits. Similarly, extracts of the parcel registers, in form of official searches, were produced. I have examined the two parcel registers and the respective searches. The parcel register relating to Ngenda/Nyamangara/2008 indicates that the suit property was conveyed to the two parties as a gift. It was registered in their names as co-owners (concurrent owners) in Equal Share on October 3, 1996.

27. The parcel register relating to Ngenda/Mbari Ya Muihia/T.31 indicates that the suit property was conveyed to the two parties at a consideration of Kshs 30,000. The two parties were registered as co-owners [concurrent owners] in Equal Shares on March 10, 1998.

28. It is clear from the parcel register relating to Ngenda Nyamangara/2008 that the late Kirori Ng’ang’a decided to gift the suit property to his wife and son. It is also clear from the parcel register that the deceased decided to determine the interest of each of the two beneficiaries. In this regard, the late Kirori Ng’ang’a determined that each of the two transferees was to be entitled to an equal share absolutely. An entry was made in the parcel register determining the interest of each of the two concurrent proprietors as “Equal Shares”. If it was the deceased’s intention that the co-owners were to hold the land in trust for other persons, he could have caused his desire to be noted in the parcel register. Secondly, if it was the intention of the deceased to create a trust, he could not have determined the respective shares of the transferees.

29. Similarly, it is clear from the parcel register relating to parcel number Ngenda/Mbari Ya Muihia/T.31 that at the time of conveying the land to his third wife and son respectively, the late Kirori Nganga deemed it necessary to clearly determine the interest of the two transferees in the land. They were registered as absolute proprietors of the land in Equal Shares. The Land Registrar noted that determination in the land register.

30. From the above evidence, it does emerge that the registrations of the two parties as co-owners [concurrent owners] bears the hallmarks of tenancies in common as opposed to joint tenancies. Their respective interests in the two parcels were determined through the instruments of conveyance and were noted in the respective parcel registers. In the circumstances, the contention that the two parties were registered as joint tenants is without basis.

31. That is not all. Even if the interest of each of the two co-owners had not been determined through the instruments of conveyance and through the endorsement in the parcel registers, Section 91(2) of the Land Registration Act 2012 has cleared the doubt which existed in scenarios where instruments of transfer and land registers did not define the type of tenancy. Currently, where two or more persons are registered as co-owners but the register does not specify the type of tenancy, the presumption is that it is a tenancy-in-common. Section 91(2) of the Land Registration Act 2012 provides thus:“91(2)Except as otherwise provided in any written law, where the instrument of transfer of an interest of land to two or more persons does not specify the nature of their rights there shall be a presumption that they hold the interest as tenants in common in equal shares”

32. The appellant contended in his pleadings that the two co-owners were to hold the suit properties in trust for unidentified beneficiaries. This contention cannot be accepted for two reasons. First the late Kirori Ng’ang’a determined the parties’ interest in the suit properties and conveyed the suit properties to them absolutely. Second, there was no evidence by the alleged beneficiaries to the alleged trust. Put differently, there was no evidence of a trust.

33. Consequently, my finding on the first issue is that there is no joint tenancy in the registrations of the appellant and the respondent as co-owners (concurrent owners) of Ngenda/Nyangamara/2008 and Ngenda/Mbari Ya Muihia/T.31. The tenancy which subsists in the said two registrations is tenancy in common.

34. The second issue is whether the trial magistrate erred in granting orders of severance of the co-ownership of the suit properties. I have made a finding to the effect that what exists in the two registrations are tenancies in common. I have outlined the key features of a tenancy in common. Foremost, a tenant in common is entitled to severance as a matter of right. I therefore do not find any error in the trial court’s order directing severance of the co-ownership/concurrent ownership.

35. On costs, the first general principle is that the jurisdiction to award costs is discretionary. The second general principle is that costs follow the event. Parties to this appeal are step-mother and step-son. They are close relatives. There is need to heal the wounds caused by this litigation. For that reason, there will be no award of costs.

36. For the above reasons, this appeal is devoid of merit. I dismiss the appeal. Parties shall bear their respective costs of the appeal.

DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 7TH DAY OF FEBRUARY 2023B M EBOSOJUDGEMr Wachira for the AppellantMs Kinyua for the RespondentCourt Assistant: Hinga