1. Vide an Originating Summons dated 10th June, 2025 the applicant herein instituted this suit seeking the following orders: -
a) Spent
b) Spent
c) The Honourable Court be pleased to order that the property known as LR. MARIACHI/KINGANDOLE/3772 measuring approximately 3.556 Hectates (8.78 acres) jointly owned by the parties herein as tenants in common be equally partitioned or subdivided between the parties herein;
d) The Honourable Court be pleased to order the respondent to surrender the original title to land parcel No. MARIACHI/KINGANDOLE/3772 to the applicant to enable him equally partition or subdivide the suit property between parties herein.
e) The cost of the application be borne by the respondent and the Court be pleased to grant any other orders as it deems appropriate in the circumstances.
2. The application is premised on the grounds on its face and supported by the affidavit of the applicant sworn in support thereof in which the grounds on the face of the application are reiterated. The grounds taken up in support of the application are that the parcel of land known as LR No. MARIACHI/KINGANDOLE/3772 (hereinafter referred to as the suit property) is registered in the joint names of the applicant and the respondent as tenants in common; that both the applicant and the respondent are entitled to half share of the suit property; that the applicant is desirous of having the suit property subdivided and each co-tenant issued with a title deed for his share of the suit property and that the applicant’s desire to get the joint tenancy severed, has being met with resistance/frustration from the respondent, who is in possession of the title deed for the suit property.
3. In reply and opposition to the application, the respondent swore an affidavit in which he denies having frustrated the applicant’s bid to have the tenancy in common severed and avers that the process of getting the suit property subdivided and the co-tenants given their respective share of the suit property, is underway. He blames the applicant for the delay in concluding the process of subdividing the suit property by failing to partner with him in meeting the costs of getting the subdivision done and denies the applicant’s claim that he harbours the intention or plan of selling the land.
4. Terming the application misconceived, misdirected and an abuse of the court process, the respondent contends that the applicant has neither established a prima facie case capable of success nor demonstrated how he is suffering irreparable loss. The applicant urges this Court to dismiss the application with costs to him.
5. In a rejoinder, the applicant filed a further affidavit dated 4th November 2025, in which he reiterates the contention that the applicant has frustrated his bid to get his share of the suit property. He takes issue with the consent annexed to the respondent’s replying affidavit on the ground that it indicates that the suit property is to be divided into three portions instead of two and wonders who the owner of the third portion is. The applicant also denies the respondent’s claim or allegation that he was involved in the process of subdivision of the suit property and urges the court to grant him the orders sought on account of irreconcilable differences between him and the respondent.
6. The application was disposed of by way of written submissions.
7. In his submissions dated 14th January 2026, the applicant has identified two issues for the court’s determination. These are: -
i) Whether the applicant and the respondent are tenants in common over the parcel of land known as LR No. MARIACHI/KINGANDOLE/3772; and
ii) Whether a tenant in common is entitled, as of right, to seek partition or subdivision of the property.
8. Concerning those issues, the applicant submits/addresses the court as follows: -
“…It is common ground from both the supporting affidavit of the applicant sworn on 10th June 2025 and the replying affidavit of the respondent sworn on 22nd September 2025 that the suit property LR NO. MARIACHI/KINGANDOLE/3772 is registered in the joint names of the applicant and the respondent as tenants in common…the respondent admits co-ownership but alleges that the subdivision process is ongoing. He claims that a survey was conducted, that the land control board’s consent was obtained and that the applicant participated in the process. However, the respondent does not exhibit a duly approved mutation form nor evidence of registration of resultant parcels and retains custody of original title.
Section 91(1) and (2) and 94(1) of the Land Registration Act No. 3 of 2012 provides that where two or more persons are registered as tenants in common any proprietor may apply to the Court for an order of severance of the tenancy in common, section 94(1) of the Land Registration Act, 2012 further empowers the Land Registrar, upon application, to order the division of the land owned under tenancy in common.
The parties’ relationship as tenants in common inherently grants each co-tenant the right to deal with their undivided share and most importantly, the right to seek partition. In Jethwa v Jethwa (Environment and Land Case 16 of 2023…
The right of a tenant in common to seek partition is well settled. In Mukangu v Mbui (2004) e KLR the Court held that a tenant in common is entitled, as of right, to seek partition of the common property and that the court should grant such relief unless there are compelling reasons to the contrary. Similarly, in Mwangi and another v Mwangi (2015) e KLR the court observed that where co-ownership becomes impracticable due to disagreement or breakdown of relations, partition is the most equitable remedy.
In Gitau v Muriuki (1986) KLR the Court emphasized that no co-owner should be compelled to remain in a state of joint ownership against his will, particularly where the relationship has deteriorated.”
9. In the instant case, the applicant submits that his right to partition has crystallized. The applicant points out that the respondent does not dispute co-ownership or equal entitlement and that the respondent’s defence is that subdivision is underway. Because the alleged subdivision has not resulted in any registrable interest, the applicant submitted that mere intentions or incomplete administrative steps cannot override his statutory and constitutional rights to property under Article 40 of the Constitution.
10. The applicant urges this court to find that he has demonstrated prolonged delay, lack of cooperation and irretrievable breakdown of trust making the continued co-tenancy with the respondent untenable and only deserving of severance and/or partition by this court.
11. The applicant further submits that subdivision of registered land cannot be effected without the original title deed and accusing the respondent of having failed to surrender it voluntarily, urges the Court to compel the respondent to surrender it or authorize the Land Registrar to dispense with its production to give effect to the orders of partition.
12. The respondent did not file submissions.
13. I have read and considered the application by the applicant, the response thereto and the applicant’s submissions in respect thereof. I find the sole issue for the Court’s determination to be whether the applicant has made up a case for being granted prayer (c) and (d) of his originating summons. Concerning that issue, upon considering the grounds taken up by the applicant, the response thereto by the respondent, the further affidavit of the applicant and the applicable law as distilled in the applicant’s submissions, I find and hold that the applicant has made up a case for being granted prayer (c) and (d) of his originating summons dated 10th June, 2025. The applicant has demonstrated that the trust that existed between him and the respondent and which might have formed the basis of their registration as owners of the suit property in common has irretrievably broken down. Whilst the respondent claims that partition of the suit property is underway, he has not demonstrated that the partition may result in equal sharing of the suit property. The mutation attached to his replying affidavit shows that he intends to divide the suit property into three portions and has not offered any explanation who the intended owner of the third portion is. In the circumstances, the applicant’s fears and apprehension that he may not get is rightful share of the suit property is properly grounded. Consequently, I order as follows:-
i) The property known as LR NO. MARIACHI/KINGANDOLE/3772 measuring approximately 3.556 hectares (8.78 acres) jointly owned by the parties herein as tenants in common be equally partitioned or subdivided between the parties herein.
ii) The respondent to, within 14 days of delivery of this ruling, surrender the original title to land parcel No. MARIACHI/ KINGANDOLE/3772 to the applicant to enable him equally partition or subdivide land parcel NO. MARIACHI/KINGANDOLE/3772 between the respondent and himself failing which, the Land Registrar is directed to dispense with production of the original title to land parcel No. MARIACHI/KINGANDOLE/3772 in carrying out partition and registration of the resultant portions of land parcel No. MARIACHI/KINGANDOLE/3772 in the name of the parties to this suit.
iii) Parties to bear their own cost of the suit.
iv) Orders accordingly.
Ruing dated, signed and delivered virtually at Busia this 14th day of April, 2026.
In the presence of;
Ms Wainaina h/b for Mr Kakinya for the Applicant
N/A for the Respondent
Court Assistant: Tracy
a) Spent
b) Spent
c) The Honourable Court be pleased to order that the property known as LR. MARIACHI/KINGANDOLE/3772 measuring approximately 3.556 Hectates (8.78 acres) jointly owned by the parties herein as tenants in common be equally partitioned or subdivided between the parties herein;
d) The Honourable Court be pleased to order the respondent to surrender the original title to land parcel No. MARIACHI/KINGANDOLE/3772 to the applicant to enable him equally partition or subdivide the suit property between parties herein.
e) The cost of the application be borne by the respondent and the Court be pleased to grant any other orders as it deems appropriate in the circumstances.
2. The application is premised on the grounds on its face and supported by the affidavit of the applicant sworn in support thereof in which the grounds on the face of the application are reiterated. The grounds taken up in support of the application are that the parcel of land known as LR No. MARIACHI/KINGANDOLE/3772 (hereinafter referred to as the suit property) is registered in the joint names of the applicant and the respondent as tenants in common; that both the applicant and the respondent are entitled to half share of the suit property; that the applicant is desirous of having the suit property subdivided and each co-tenant issued with a title deed for his share of the suit property and that the applicant’s desire to get the joint tenancy severed, has being met with resistance/frustration from the respondent, who is in possession of the title deed for the suit property.
3. In reply and opposition to the application, the respondent swore an affidavit in which he denies having frustrated the applicant’s bid to have the tenancy in common severed and avers that the process of getting the suit property subdivided and the co-tenants given their respective share of the suit property, is underway. He blames the applicant for the delay in concluding the process of subdividing the suit property by failing to partner with him in meeting the costs of getting the subdivision done and denies the applicant’s claim that he harbours the intention or plan of selling the land.
4. Terming the application misconceived, misdirected and an abuse of the court process, the respondent contends that the applicant has neither established a prima facie case capable of success nor demonstrated how he is suffering irreparable loss. The applicant urges this Court to dismiss the application with costs to him.
5. In a rejoinder, the applicant filed a further affidavit dated 4th November 2025, in which he reiterates the contention that the applicant has frustrated his bid to get his share of the suit property. He takes issue with the consent annexed to the respondent’s replying affidavit on the ground that it indicates that the suit property is to be divided into three portions instead of two and wonders who the owner of the third portion is. The applicant also denies the respondent’s claim or allegation that he was involved in the process of subdivision of the suit property and urges the court to grant him the orders sought on account of irreconcilable differences between him and the respondent.
6. The application was disposed of by way of written submissions.
7. In his submissions dated 14th January 2026, the applicant has identified two issues for the court’s determination. These are: -
i) Whether the applicant and the respondent are tenants in common over the parcel of land known as LR No. MARIACHI/KINGANDOLE/3772; and
ii) Whether a tenant in common is entitled, as of right, to seek partition or subdivision of the property.
8. Concerning those issues, the applicant submits/addresses the court as follows: -
“…It is common ground from both the supporting affidavit of the applicant sworn on 10th June 2025 and the replying affidavit of the respondent sworn on 22nd September 2025 that the suit property LR NO. MARIACHI/KINGANDOLE/3772 is registered in the joint names of the applicant and the respondent as tenants in common…the respondent admits co-ownership but alleges that the subdivision process is ongoing. He claims that a survey was conducted, that the land control board’s consent was obtained and that the applicant participated in the process. However, the respondent does not exhibit a duly approved mutation form nor evidence of registration of resultant parcels and retains custody of original title.
Section 91(1) and (2) and 94(1) of the Land Registration Act No. 3 of 2012 provides that where two or more persons are registered as tenants in common any proprietor may apply to the Court for an order of severance of the tenancy in common, section 94(1) of the Land Registration Act, 2012 further empowers the Land Registrar, upon application, to order the division of the land owned under tenancy in common.
The parties’ relationship as tenants in common inherently grants each co-tenant the right to deal with their undivided share and most importantly, the right to seek partition. In Jethwa v Jethwa (Environment and Land Case 16 of 2023…
The right of a tenant in common to seek partition is well settled. In Mukangu v Mbui (2004) e KLR the Court held that a tenant in common is entitled, as of right, to seek partition of the common property and that the court should grant such relief unless there are compelling reasons to the contrary. Similarly, in Mwangi and another v Mwangi (2015) e KLR the court observed that where co-ownership becomes impracticable due to disagreement or breakdown of relations, partition is the most equitable remedy.
In Gitau v Muriuki (1986) KLR the Court emphasized that no co-owner should be compelled to remain in a state of joint ownership against his will, particularly where the relationship has deteriorated.”
9. In the instant case, the applicant submits that his right to partition has crystallized. The applicant points out that the respondent does not dispute co-ownership or equal entitlement and that the respondent’s defence is that subdivision is underway. Because the alleged subdivision has not resulted in any registrable interest, the applicant submitted that mere intentions or incomplete administrative steps cannot override his statutory and constitutional rights to property under Article 40 of the Constitution.
10. The applicant urges this court to find that he has demonstrated prolonged delay, lack of cooperation and irretrievable breakdown of trust making the continued co-tenancy with the respondent untenable and only deserving of severance and/or partition by this court.
11. The applicant further submits that subdivision of registered land cannot be effected without the original title deed and accusing the respondent of having failed to surrender it voluntarily, urges the Court to compel the respondent to surrender it or authorize the Land Registrar to dispense with its production to give effect to the orders of partition.
12. The respondent did not file submissions.
13. I have read and considered the application by the applicant, the response thereto and the applicant’s submissions in respect thereof. I find the sole issue for the Court’s determination to be whether the applicant has made up a case for being granted prayer (c) and (d) of his originating summons. Concerning that issue, upon considering the grounds taken up by the applicant, the response thereto by the respondent, the further affidavit of the applicant and the applicable law as distilled in the applicant’s submissions, I find and hold that the applicant has made up a case for being granted prayer (c) and (d) of his originating summons dated 10th June, 2025. The applicant has demonstrated that the trust that existed between him and the respondent and which might have formed the basis of their registration as owners of the suit property in common has irretrievably broken down. Whilst the respondent claims that partition of the suit property is underway, he has not demonstrated that the partition may result in equal sharing of the suit property. The mutation attached to his replying affidavit shows that he intends to divide the suit property into three portions and has not offered any explanation who the intended owner of the third portion is. In the circumstances, the applicant’s fears and apprehension that he may not get is rightful share of the suit property is properly grounded. Consequently, I order as follows:-
i) The property known as LR NO. MARIACHI/KINGANDOLE/3772 measuring approximately 3.556 hectares (8.78 acres) jointly owned by the parties herein as tenants in common be equally partitioned or subdivided between the parties herein.
ii) The respondent to, within 14 days of delivery of this ruling, surrender the original title to land parcel No. MARIACHI/ KINGANDOLE/3772 to the applicant to enable him equally partition or subdivide land parcel NO. MARIACHI/KINGANDOLE/3772 between the respondent and himself failing which, the Land Registrar is directed to dispense with production of the original title to land parcel No. MARIACHI/KINGANDOLE/3772 in carrying out partition and registration of the resultant portions of land parcel No. MARIACHI/KINGANDOLE/3772 in the name of the parties to this suit.
iii) Parties to bear their own cost of the suit.
iv) Orders accordingly.
Ruing dated, signed and delivered virtually at Busia this 14th day of April, 2026.
In the presence of;
Ms Wainaina h/b for Mr Kakinya for the Applicant
N/A for the Respondent
Court Assistant: Tracy