https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3440

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MALINDI** **CIVIL SUIT NO. E031 OF 2025(OS)** **IN THE MATTER OF: The Land Act (Cap. 280) LAWS OF KENYA** **IN THE MATTER OF: Land Registration Act (CAP. 300) LAWS OF KENYA IN THE MATTER OF: The Matrimonial Property Act (No. 49 of 2013) LAWS OF KENYA** **AND** **N THE MATTER OF: TITLE NO. CR. 25680 & TITLE NO. CR25678 MALINDI** **BETWEEN** **MARIANO DI NACCІ ………………………………………. PLAINTIFF** **VERSUS** **STEFANIA LIVI** **THE REGISTRAR OF LANDS, MOMBASA** **THE HON. ATTORNEY GENERAL……………………...DEFENDANTS** **JUDGMENT** 1. The plaintiff, Mariano Di Nacci, seeks the severance of the joint tenancy in respect of Title No. CR. 25680 and Title No. CR25678 Malindi, which are currently held with the 1st defendant, Stefania Livi, following the parties' divorce. The application is based on the grounds stated in the Originating Summons (OS) as supported by the plaintiff's affidavit and the exhibits annexed thereto. 2. The plaintiff avers that he is 82 years old and in poor health, circumstances that have precipitated the urgent need to sever the joint tenancy with the 1st defendant, as the 1st defendant refuses to consent to severance, expressing concerns that the plaintiff's sons may cause trouble if they inherit the plaintiff's interest in the property. 3. In opposition to the OS dated 2 July 2025, together with the 1st defendant's reply affidavit, the 1st defendant contends that the OS does not disclose any lawful cause of action. 4. The OS was canvassed through written submissions. I confirm receipt of submissions from counsel for the parties with much appreciation, as they went a long way toward resolving the issues raised in the OS. 5. Based on the materials placed before me and the submissions, I frame the following issues for the Court's determination, namely, whether the plaintiff is entitled to immediate severance of the joint tenancy, thereby converting it into a tenancy in common, and whether the 1st defendant's objections based on potential familial disputes are sustainable in law. Costs. 6. Plaintiffs submit that, under Kenyan law, joint tenancy is characterized by the four unities: possession, interest, title, and time. The principal feature is the right of survivorship (*jus accrescendi*), whereby upon the death of one joint tenant, the property automatically vests in the surviving joint tenant(s). Severance of a joint tenancy destroys the right of survivorship, converting the holding into a tenancy in common, where each party holds a distinct share that may be disposed of by will or otherwise. 7. Section 91 of the Land Registration Act, Cap 300 Laws of Kenya, governs joint tenancies and their severance in Kenya. 8. Section 91(7) specifically allows a joint tenant to sever the tenancy by giving written notice to the other joint tenant(s). The severance takes effect upon the registration of the notice. 9. The effect of divorce on joint tenancy has also been considered in Kenyan Courts, with the dissolution of marriage often leading to the breakdown of the unity of interest and intention, thus justifying severance. 10. The plaintiff asserts that, given the shared legal heritage, Kenyan Courts routinely look to persuasive Commonwealth authorities in property law. The following cases illuminate the principles governing severance of joint tenancy: **Williams v Hensman (1861) 70 ER 862 (UK)** - Established the three modes of severance: an act of a joint tenant operating on their own share, mutual agreement, and mutual conduct. **Re Draper's Conveyance [1969] I Ch 486 (UK)** – Held that the commencement of proceedings and affidavits seeking division of property can amount to severance. **Goodman v Gallant [1986] I FLR 513 (UK)** - Confirmed that a notice in writing is a valid mode of severance and that, upon severance, the parties become tenants in common in equal shares unless otherwise stated. **Public Trustee v Barnes [1940] NZLR 257 (NZ)** - Divorce and the breakdown of the marital relationship warrant severance to reflect changed intentions. **Lyus v Prowsa Developments Ltd [1982] 1 WLR 1044 (UK)** - Emphasized the importance of fairness and the parties' intentions in property disputes. 11. The plaintiff states that, at 82 years of age and in poor health, he has a legitimate and urgent interest in settling his property affairs. The law recognizes a joint tenant's right to sever at any time, especially when circumstances such as age, ill health, or the breakdown of the marriage render the continuation of the joint tenancy inequitable. The plaintiff's advanced age and frailty make immediate severance not only just but necessary to enable him to dispose of his share according to his wishes, particularly because the parties are no longer united in interest or intention. 12. The plaintiff states that the dissolution of marriage fundamentally alters the parties' relationship and their intentions regarding jointly held property. As held in **Williams v Hensman**, mutual agreement or conduct demonstrating a desire to hold separately is sufficient to sever the joint tenancy. Here, the parties' divorce and the plaintiff's request for severance clearly demonstrate that intent. The law does not require the consent of all joint tenants; a unilateral notice is sufficient (Section 91 of the Land Registration Act; **Goodman v Gallant**). 13. The plaintiff asserts that his right to dispose of his share, whether by will or *inter vivos* transfer, should not be fettered by the 1st defendant's concerns about future inheritance disputes. The right of survivorship is an incident of joint tenancy, but upon the breakdown of the marital relationship, its continuation is manifestly unjust (**Public Trustee v Barnes**). 14. Plaintiff further avers that Commonwealth authorities consistently uphold the primacy of the parties' intentions and fairness in property matters. Courts have recognized that a continued joint tenancy after divorce is anomalous and may work an injustice, particularly where the unity of intention is destroyed (**Re Draper's Conveyance**). Severance ensures that each party's share is protected and can be disposed of in accordance with each party's wishes. 15. The 1st defendant in opposition asserts that the Court is not cloaked with the authority to coerce and or force severance of joint tenancy; the same can only interrogate the existence of the four unities that define joint tenancy, and thereafter declare whether the said unities have been broken or remain intact. 16. The 1st defendant contends that the position was discussed in **Rosa v Crutzen (Sued as the Legal Representative of the Estate of the Late Ruth Wanjiru Mwithia) [2024] KEELC 1400 (KLR.** 17. The 1st defendant contends that the plaintiff seeks to sever the joint tenancy of the property CR25680, which is currently held in the names of the plaintiff and the 1st defendant as joint tenants. The 1st defendant respectfully asks the Court to dismiss the application for severance, or, in the alternative, to impose conditions that protect the 1st defendant's rights to own property with persons of her choosing and to use and own the property, because severance on the terms sought by the plaintiff will prejudice the 1st defendant's right of use and enjoyment of the undivided ownership that underpins the joint tenancy. 18. 1st defendant further asserts that the plaintiff's ill health or the anticipation of his death cannot be the basis for severing the joint tenancy, since in the event of his death, a common tenancy would result, which would negatively affect her enjoyment of the whole of the suit properties, as the plaintiff's sons would cause hindrance of her enjoyment. 19. 1st defendant avers that the four corners of joint tenancy (possession, interest, title, and time) have not been negated despite the divorce, warranting severance. 20. Without prejudice, the 1st defendant proposes that, if the Court orders severance, the plaintiff should buy out the 1st defendant's share to ensure her rights are protected. 21. It is not in dispute that the plaintiff and the 1st defendant are jointly registered as joint tenants in respect of the suit properties. It is undisputed that they are divorced, that the plaintiff is over 82 years of age and at his sunset, and that he has heirs, his sons. The sons, it seems, do not relate well to the 1st defendant, if the 1st defendant's averments are anything to go by. 22. Under the circumstances that we have, can the joint tenancy be tenable? 23. I have considered the applicable law and the judicial authorities cited to me regarding the factors that must be considered when severing a joint tenancy, notably the decision in **Rosa v Crutzen (Sued as the Legal Representative of the Estate of the Late Ruth Wanjiru Mwithia) [2024] KEELC 1400 (KLR)**, where Omollo J. held as follows: ***“Consequently, the position in law was that the parties as joint tenants,*** ***the tenancy can only be severed by mutual consent or survivorship or if one of the four unities is broken. This was also expressed by the Court of Appeal in the case of Mukazitoni Josephine vs. Attorney General (2015) eKLR, thus;*** ***“A joint tenancy cannot be severed unless one of the four unities of title, time, possession or interest is broken.”*** ***49. Further, the Australian Law Reform Commission Reports (1994) WALRC 4 had this to say on severance of joint tenancy;*** ***“Severance of a joint tenancy may be effected by destroying either the unity of title or the unity of interest. The locus classicus of the rules of severance is the following passage in the judgment of Sir William Page-Wood V-C in Williams v Hensman:*** ***"....in the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share. The right of each joint-tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each one is at liberty to dispose of his own interest in such manner as to sever it from the joint fund - losing, of course, at the same time, his own right of survivorship. Secondly, a joint-tenancy may be severed by mutual agreement. And, in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.”*** 1. Arising from the foregoing, joint tenancy can be severed only by mutual consent, survivorship, or the destruction of one of the four unities. 2. The involved parties do not agree to severance after dissolving their marriage. The four unities that formed a joint tenancy no longer exist, as evidenced by the parties' actions and circumstances. The plaintiff, being elderly and in poor health, has a valid and urgent interest in settling his property issues. The law grants a joint tenant the right to seek severance at any time, especially when factors such as age, health, or the dissolution of a marriage make continuing the joint tenancy unfair. Due to the plaintiff's age and fragility, immediate severance is not only justified but essential, allowing him to manage his share as he wishes, given that the parties are no longer aligned in interest or intent. 3. Furthermore, the dissolution of marriage significantly changes the relationship between the parties and their plans for joint property ownership. A mutual agreement or actions indicating a wish to hold property separately are enough to terminate the joint tenancy. In this case, the divorce and the plaintiff's request for severance clearly reflect that intent. The law does not mandate the consent of all joint tenant(s); a unilateral notice is adequate. 4. The plaintiff's discretion to dispose of his share, whether through a will or *inter vivos* transfer, should not be limited by the 1st defendant's worries about potential inheritance conflicts. While the right of survivorship is an inherent aspect of joint tenancy, maintaining it after the marital relationship ends is clearly unfair. 5. The 1st defendant's refusal, grounded in concerns about potential disputes with the plaintiff's sons if they inherit, is not a legitimate legal basis for opposing severance. The law does not permit a joint tenancy to be maintained solely to prevent future disagreements. The right to sever is personal and independent of any expected actions by beneficiaries. 6. The 1st defendant maintains the right to seek court intervention if any disputes arise during succession. The Law of Succession Act provides procedures for resolving inheritance disputes and safeguarding beneficiaries' rights. Simply facing potential conflict does not justify denying the plaintiff's legal right to sever. 7. Consequently, the Court allows the OS and issues the following final orders: 8. **A declaration that the joint tenancy held by the parties herein concerning Title No. CR. 25680 and Title No. CR25678 Malindi is hereby severed** 9. **An order directing the Land Registrar in Malindi to register the aforementioned properties in the names of the parties herein as tenants in common, in equal shares.** 10. **Each party shall bear its own costs.** **Dated, signed, and delivered electronically in Nyeri on this 14th day of May, 2026** **E. K. MAKORI** **JUDGE** **In the presence of:** **Mr. Ole Kina for the Plaintiff** **Mr. Ouma for the 1st Defendant** **Kendi: Court Assistant**