INTRODUCTION
The Plaintiff' has filed Originating Summons seeking, inter alia, declarations regarding the ownership, co-ownership interests, partition and/or sale of Land Parcel No. MOMBASA/BLOCK X/367, together with orders for accounts, mesne profits, reimbursement of contributions made towards the acquisition, maintenance and preservation of the suit property, and such other consequential and equitable reliefs as this Honourable Court may deem fit and just.
The Plaintiff submits that the present proceedings concern a dispute relating to title, co-ownership, beneficial interests, accounting, reimbursement and partition of land, all of which fall squarely within the jurisdiction of this Honourable Court under Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, 2011. The suit property was acquired and registered in the names of four family members, namely:
i. Mohanlal Mitha Parmar (the father);
ii. Gulabchand Mohanlal Mitha Parmar;(Defendant)
iii. Bansikumar Mohanlal Mitha Parmar; (Plaintiff) and
iv. Mahesh Mohanlal Mitha Parmar,(late Brother) who jointly acquired and co-owned the suit property as a father and his three sons.
Subsequently, Mahesh Mohanlal Mitha Parmar passed away on or about 12th December 1998, while Mohanlal Mitha Parmar, the father, passed away on or about 29th June 1999, leaving Gulabchand Mohanlal Mitha Parmar and Bansikumar Mohanlal Mitha Parmar as the surviving co-proprietors.
The Defendant now seeks to introduce succession issues into these proceedings by relying upon an alleged Last Will and Testament purportedly executed on 22nd December 1997, annexed as BM-2, in an attempt to defeat or diminish the Plaintiff's registered and beneficial proprietary interests in the suit property.
The Plaintiff submits that the reliance placed on the alleged Will raises substantial legal and evidentiary concerns. Notably, the alleged testamentary document remained unknown, undisclosed and unacted upon for approximately twenty-nine (29) years, and no probate proceedings, grant of probate, letters of administration, confirmation of grant, or transmission proceedings have ever been undertaken pursuant thereto.
The Plaintiff avers that even members of the immediate family, including the widow and mother of the deceased beneficiaries, had never seen, received, possessed or otherwise become aware of the existence of the alleged Will until its recent production before this Honourable Court in the present proceedings.
The Plaintiff further submits that the present dispute is neither a succession cause nor an application for probate or administration of a deceased person's estate. Rather, it is a dispute concerning proprietary rights arising from registration, co-ownership, beneficial interests, contribution, occupation and division of land under the Constitution of Kenya, the Land Registration Act, 2012 and the Environment and Land Court Act, 2011.
According to the plaintiff, this Honourable Court possesses the requisite constitutional, statutory and equitable jurisdiction to determine the issues arising in this dispute, including the nature of the parties' legal and beneficial interests, the effect, if any, of the alleged testamentary document, and the appropriate reliefs to be granted.
The Background of the case according to the plaintiff is that the suit property, namely MOMBASA/BLOCK X/367, was purchased in or about May 1986 for approximately Kenya Shillings Eight Hundred Thousand (Kshs. 800,000/=) through a combination of cash contributions by the purchasers and financing obtained from the East African Building Society (EABS). The financing facility advanced by EABS amounted to approximately Kenya Shillings Four Hundred and Eighty Thousand (Kshs. 480,000/=) and attracted interest at the rate of approximately 16% per annum
The said Property was discharged on 18th February 1999 and the original Title deed taken by Chauhan Family to UK to assist in payment of Interest charged through the Widow. The property remained charged and had not been discharged at the time of the alleged testamentary disposition relied upon by the Defendant. The plaintiff contends that the Defendant relies upon a purported Last Will dated 22nd December 1997. Evidence demonstrates that the outstanding EABS loan was redeemed through financial assistance from family members resident in the United Kingdom.
The Plaintiff has contributed towards the preservation, maintenance and upkeep of the property. Despite repeated demands and correspondence annexed as BMP-6, the Defendant has failed and/or refused to account for the use and occupation of the suit property.
On the issue of jurisdiction, the plaintiff argues that Jurisdiction is the cornerstone of judicial authority. He cites the case of Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, the Court held:"Jurisdiction is everything. Without it, a Court has no power to make one more step."
a) Article 162(2)(b) of the Constitution establishes this Court with jurisdiction over disputes relating to the use, occupation and title to land.
b) Section 13 of the Environment and Land Court Act grants jurisdiction over disputes relating to ownership, title, partition, occupation, use and interests in land. se matters fall squarely within the jurisdiction of this Honourable Court.In Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, the Supreme Court held that jurisdiction flows from the Constitution and statute.
c) Section 91 of the Land Registration Act recognizes two forms of co-ownership, namely joint tenancy and tenancy in common. Where property is held under joint tenancy, the doctrine of survivorship (jus accrescendi) applies and the interest of a deceased joint tenant automatically accrues to the surviving joint tenant or tenants. Such interest does not form part of the deceased's estate and cannot ordinarily be disposed of by Will.
On whether the Son of the Defendant ( Gulabchand is party to the case, the plaintiff states that no lawful explanation has been provided for the failure of Mr. Gulabchand to personally testify regarding matters peculiarly within his own knowledge and that a Power of Attorney does not convert an attorney into a witness capable of giving evidence concerning facts which are exclusively within the principal's personal knowledge. In Life Insurance Corporation of India v Panesar [1967] EA 614, the Court emphasized that hearsay evidence is generally inadmissible. This Honourable Court should therefore draw an adverse inference under Section 119 of the Evidence Act arising from the failure of the primary witness to testify
On whether the Plaintiff remains a registered co-proprietor under Tenancy in Common with 50% Share, the plaintiff submits that whether the property is held under joint tenancy or tenancy in common; It is common Undisputed ground that the Plaintiff is one of the registered proprietors of the suit property, as evidenced by the Certificate of Title and land records.
The suit property was acquired in or about May 1986 through a combination of cash contributions and mortgage financing obtained from the East African Building Society (EABS) amounting to approximately Kshs. 480,000/= at an interest rate of approximately 16% per annum.
The Plaintiff submits that his registered proprietary rights remain valid, subsisting and enforceable and cannot be defeated except in accordance with the Constitution and statute. Article 40 of the Constitution guarantees the right to acquire and own property and protects every person from arbitrary deprivation of property. Sections 24, 25 and 26 of the Land Registration Act provide that registration confers ownership rights which are indefeasible except as expressly provided by law.
The plaintiff relies on Wreck Motors Enterprises v Commissioner of Lands & Others [1997] eKLR, the Court affirmed that registration confers legally protected proprietary rights which cannot be defeated except through lawful process.
On whether an alleged Will dated 22nd December 1997 can defeat registered proprietary rights in the absence of probate proceedings, the plaintiff submits that Section 91 of the Land Registration Act recognizes two forms of co-ownership, namely joint tenancy and tenancy in common. Where property is held under joint tenancy, the doctrine of survivorship (jus accrescendi) applies and the interest of a deceased joint tenant automatically accrues to the surviving joint tenant or tenants.Such interest does not form part of the deceased's estate and cannot ordinarily be disposed of by Will.
The plaintiff refers to Mbothu & 8 Others v Waitimu & 11 Others [1986] KLR 171, the Court recognized that beneficial ownership may differ from legal ownership. The evidence before Court demonstrates that the suit property was acquired through a blend of cash contributions and mortgage financing and that substantial contributions were subsequently made toward redemption of the mortgage facility.
The Plaintiff further submits that before any succession question can arise, this Honourable Court must first determine the nature of the proprietary interest existing in the suit property. In Gitau v Wandai & 5 Others [1989] KLR 231, the Court recognized the operation of the doctrine of survivorship.Likewise, in Re Estate of Johnson Njuguna (Deceased) [2018] eKLR, the Court held that property held under joint tenancy passes automatically to surviving joint tenants and does not constitute free property available for succession.
The plaintiff argues that the defendant seeks to rely upon an alleged Last Will and Testament dated 22nd December 1997. The alleged Will remained unknown, undisclosed and unacted upon for almost twenty-nine (29) years between 1997 and 2026.No explanation has been offered as to why: no petition for probate was filed, no Grant of Probate was obtained, no Letters of Administration were issued, no transmission of title was undertaken, no beneficiary attempted to enforce the alleged testamentary disposition; and the alleged Will remained concealed for nearly three decades.
The Plaintiff avers that even the widow of the deceased and the mother of the deceased beneficiaries had never seen, been informed of, or otherwise become aware of the existence of the alleged Will throughout the lifetime of the deceased persons or thereafter. These circumstances substantially undermine the credibility, authenticity and evidential value of the alleged testamentary document.
The Plaintiff has observed material discrepancies between the signatures appearing on the alleged Will and the signatures appearing on previous conveyancing documents, title documents, EABS mortgage documents and other instruments executed by the deceased persons during their lifetime. The Court is therefore invited to treat the alleged Will with considerable caution.
Sections 79 and 82 of the Law of Succession Act provide that property of a deceased person vests in personal representatives only upon issuance of a grant of representation.
The plaintiff argues that the defendant lives in the said property despite raising issue of succession and will. Section 45 of the Law of Succession Act prohibits intermeddling with estate property before a grant is issued. It is not disputed that no Grant of Probate, Letters of Administration or Confirmed Grant have been obtained. In Trouistik Union International & Another v Jane Mbeyu & Another [1993] eKLR, the Court of Appeal held that no person may deal with the estate of a deceased person without first obtaining a grant of representation. in Virginia Edith Wambui Otieno v Joash Ochieng Ougo & Another [1987] eKLR, the Court affirmed that succession rights may only be exercised through the procedures prescribed under the Law of Succession Act. The alleged Will remains legally inoperative and incapable of transferring title, extinguishing ownership rights or altering registered interests.
The plaintiff argues that the Defendant's exclusive occupation amounts to unlawful exclusion and unjust enrichment. He refers to the case of Gitau v Wandai & 5 Others [1989] KLR 231, where the Court recognized the operation of the doctrine of survivorship. Likewise, in Re Estate of Johnson Njuguna (Deceased) [2018] eKLR, the Court held that property held under joint tenancy passes automatically to surviving joint tenants and The Plaintiff further submits that the Defendant has remained in exclusive occupation and possession of the suit property while excluding the Plaintiff from the use, occupation and enjoyment thereof.
The plaintiff argues that the Defendant has failed to render accounts, share profits or permit partition despite repeated requests and demands. Equity does not permit one co-owner to benefit unjustly at the expense of another.
The plaintiff refers to the case of Benedetti v Sawiris [2013] UKSC 50, where the Court held that unjust enrichment arises where one party receives a benefit at another's expense under circumstances making retention of that benefit unjust. The Defendant has therefore been unjustly enriched by enjoying exclusive possession and benefit of jointly owned property.
The Plaintiff has also expended substantial sums towards, servicing and redemption of the EABS mortgage payment of rates; maintenance and repairs; and preservation of the suit property as evidenced by BM-4 and BM-5.In Leigh v Dickeson (1884) 15 QBD 60, the Court recognized the right of contribution and reimbursement among co-owners.
The Plaintiff is also entitled to accounts and mesne profits.Section 2 of the Civil Procedure Act defines mesne profits as profits received or which with ordinary diligence might have been received by a person in wrongful possession.
The Plaintiff further notes that the Defendant has attempted to introduce evidence through the son of Mr. Gulabchand Mohanlal Parmar despite the fact that Mr. Gulabchand is alive, competent, and healthy and a party to these proceedings. Finally, Section 94 of the Land Registration Act empowers this Honourable Court to order partition of co-owned property and, where partition is impracticable, to order sale and distribution of the proceeds according to the parties' respective interests.
The parties have failed to agree on management, occupation and use of the suit property, and the relationship of co-ownership has irretrievably broken down.In Achar v Achar [2011] eKLR, the Court recognized that where co-ownership becomes impracticable, the Court may order sale and equitable distribution. The Plaintiff accordingly prays that the Originating Summons be allowed with costs. The dispute concerns title, co-ownership and division of land, It does not concern succession. The Plaintiff prays for orders that a declaration be made of his proprietary and beneficial interests; accounts and mesne profits; reimbursement of expenditure incurred; partition of the suit property; or in the alternative, sale of the property and distribution of the proceeds according to the parties' respective legal and beneficial interests. The Plaintiff accordingly prays that the Originating Summons be allowed as prayed with costs.
DEFENDANTS CASE
The defendant opposes the application through the replying Affidavit sworn by Tushal Gulabchan Parmar, the biological son and duly authorized attorney of the Respondent, and submits that the Applicant's claim is fundamentally defective, incompetent, misconceived, legally untenable, wholly devoid of merit, and constitutes a gross abuse of the process of this Honourable Court.
Article 159(2) of the Constitution mandates that judicial authority is derived from the people and vested in the courts, which must administer justice without undue regard to procedural technicalities, ensuring substantive justice for all persons, irrespective of their status. In the present case, the Claimant urges this Honourable Court to be guided by these constitutional imperatives, and to ensure that justice is not sacrificed at the altar. Deriving from the ambits of the Kenyan Constitution 2010, the Applicants brings to the attention of this Honourable Court one main issues for determination manifest itself;
The defendant argues that the Originating Summons is incompetent and fatally defective for invoking the Law of Succession Act in a property dispute before this Court. The Defendant/Respondent submits that the Originating Summons, as framed, improperly invokes the provisions of the Law of Succession Act (Cap. 160), particularly in relation to the proof and verification of wills. These are matters squarely within the jurisdiction of a probate court seized of a succession cause, and not this Honourable Court. Accordingly, the issues raised fall outside this Court's jurisdiction.
Further, the Defendant/Respondent submits that the Originating Summons is incurably defective for failure to comply with the mandatory requirements of Order 37 Rule 7 of the Civil Procedure Rules, 2010. It is trite that an originating summons brought under section 38 of the Limitation of Actions Act must be supported by an affidavit annexing a certified extract of the title to the land in question. The Plaintiff's failure to annex such extract renders the Originating Summons incompetent.
The Plaintiff's reliance on succession law, without a proper invocation of this Court's jurisdiction under the Land Registration Act, constitutes a clear abuse of the court process which ought to be arrested at the earliest opportunity. This position was well buttressed in the case of Benjamin Barasa Wafula v Attorney General & 6 others [2019] KEELC 555, the Environment and Land Court at Bungoma declared that;
"A Court of law will frown on any claim that amounts to an abuse of its process and is duty bound to strike out such claims. This is because Courts have inherent jurisdiction to protect themselves from abuse of their processes... What does constitute an abuse of process of the Court is a matter which needs to be determined by the circumstances of each case... an abuse of process takes place where the proceedings permitted by the rules of Court to facilitate the pursuit of the truth are used for purposes extraneous to that objective."
The mischief identified in the foregoing authority is evident in the present case. The Plaintiff seeks to advance a property ownership claim through the improper invocation of succession law, thereby pursuing a purpose extraneous to the proper administration of justice. Similarly, in Gatingi & 19 others v Sanghani [2024] KEELC 335 (KLR), the Environment and Land Court at Nairobi (Mogeni J) struck out an originating summons for failure to comply with Order 37 Rule 7;
"The originating summons filed herein does not have an extract of title as an annexure. And since the requirement to annex such extract is mandatory, failure to annex it makes the originating summons incompetent."
The Plaintiff's Originating Summons suffers the same mandatory defect and must meet the same fate. The Defendant/Respondent submits that the court in applying these principles to the present matter, the Plaintiff's Originating Summons is irredeemably flawed. By seeking determinations that properly belong to a succession court and failing to comply with the mandatory procedural prerequisites for an originating summons, the Plaintiff has invoked this Court's jurisdiction improperly. The Originating Summons ought to be struck out in limine with costs to the Respondent.
The defendant submits that the suit property is held under tenancy in common and that the legal distinction between joint tenancy and tenancy in common is well settled in Kenyan land law. In a joint tenancy, the doctrine of survivorship (jus accrescendi) applies, such that upon the death of one joint tenant, their interest automatically vests in the surviving tenant or tenants. Conversely, under a tenancy in common, each proprietor holds a distinct though undivided share, which does not pass to the surviving co-owners upon death, but instead devolves as part of the deceased's estate in accordance with the law of succession. The defendant refers to Section 91(5) of the Land Registration Act, 2012, which provides that;
"where land is held in common, each tenant is entitled to an undivided share, and upon death, such share forms part of the deceased's estate."
According to the defendant, the import of this provision is dispositive of the present dispute. The registered proprietors of TITLE NO. MOMBASA/BLOCK X/367 held the suit property as tenants in common in equal undivided shares. Accordingly, the doctrine of survivorship is wholly inapplicable to the circumstances of this case and cannot be relied upon by the Plaintiff. This position was adequately buttressed in the Court of Appeal decision of Kariba & another v Ndungu [2023] KEELC 18213 (KLR) where Kemei J authoritatively stated:
"As at now the current statute applicable to the registration of interest in the suit land is the Land Registration Act. The applicable law is found in Section 91(2) of the Land Registration Act which states as follows;(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."
The Respondent submits the title document in the present matter demonstrates that the proprietors held equal, undivided shares, which is the hallmark of a tenancy in common. The defendant refers further to the dictum of Munyao Sila J in the case of Isabel Chelangat v Samuel Tiro Rotich & 5 others [2012] KEHC 5520,
"Tenancy in common on the other hand is different from joint tenancy. In a tenancy in common, the two or more holders hold the property in equal undivided shares. Each tenant has a distinct share in the property which has not yet been divided among the co-tenants. The largest factor that distinguishes a joint tenancy from a tenancy in common is the absence of the doctrine of survivorship in the latter. The share of one tenant is not affected by the death of one of the co-owners. The share of the deceased, devolves not to the other co-owner, but to the estate of the deceased co-owner."
The Respondent/Defendant submits that the suit property was registered in the names of four co-proprietors, each holding an undivided and equal share (annexure TGP-3). By operation of section 91(5) of the Land Registration Act, the death of any co-proprietor does not trigger survivorship; instead, the deceased's share devolves to his or her estate. The Plaintiff's attempt to import the doctrine of survivorship is therefore legally untenable.
On whether the Plaintiff/Applicant has discharged the burden of proof regarding the alleged loan repayments, municipal rates, and payments to third parties, the Respondent/Defendant submits that the answer to this is in the non- affirmative for the following reasons;
The allegations made by the Plaintiff/Applicant of having made loan repayments, paid municipal rates, and remitted sums to the Chauhan Family (UK) are not supported by any receipts, vouchers, of account, or any certified documentary proof whatsoever in support of these claims.
Sections 107, 108, and 109 of the Evidence Act (Cap. 80). Place the burden of proof on the person who alleges. The party who asserts the existence of a fact must prove it. Where a claim is in the nature of special damages, the standard is even strict and such damages must not only be specifically pleaded but strictly proved. A mere allegation, unsupported by documentary evidence, cannot justify an award. This position was well highlighted in the case of Capital Red Holdings v Principal Secretary, Ministry of Interior and Coordination of National Government & another [2026] KEHC 2393 (KLR), where the Mulwa J reiterated;
"The law on special damages is settled. They must not only be specifically pleaded but must also be strictly proved."
ANALYSIS AND DETRMINATION
To understand the originating summons by the plaintiff, we need to Identify the law under which the same is made. The applicant seeks remedies under the provisions of order 37 rules 1, 2, 3 and 4 of the Civil Procedure Rules.
Order 37, Rule 1 of the Kenyan Civil Procedure Rules governs who can file an Originating Summons. It permits executors, administrators, trustees, creditors, heirs, and beneficiaries to seek court determinations on specific, straightforward matters (like estate administration or trust interpretation) directly before a judge in chambers.
Order 37, Rule 2 of the Kenyan Civil Procedure Rules outlines the procedure for the administration of estates or trusts. It allows eligible beneficiaries or trustees to apply for a court order directing the administration of a deceased person's estate (real or personal) or the proper execution of a trust.
Order 37 Rule 3 of the Kenya Civil Procedure Rules governs Summons by a vendor or purchaser of land. It allows either party (or their representatives) to apply to the High Court via an Originating Summons in chambers to resolve disputes, objections, or compensation claims connected to a contract for the sale of immovable property, excluding questions about the validity of the contract itsel
Order 37, Rule 4 of the Kenyan Civil Procedure Rules governs Summons by a Mortgagee, Mortgagor, and Others. It allows anyone with a legal/equitable mortgage, charge, or the right to foreclose/redeem property to file an originating summons in a judge's chambers. Reliefs sought can include sale, foreclosure, or delivery of possession..
The order provides as follows:-
“Any mortgagee or mortgagor, whether legal or equitable, or any person entitled to or having property subject to a legal or equitable charge, or any person having the right to foreclose or redeem any mortgage, whether legal or equitable, may take out
as of course an originating summons, returnable before the judge in chambers, for such relief of the nature or kind following as may be by the summons specified, and as the circumstances of the case may require; that is to say, sale, foreclosure, delivery of possession by the mortgagor, redemption, reconveyance, delivery of possession by the mortgagee.”
Order 37 of the Civil Procedure Rules does not directly govern the substantive law or distinctions between tenants in common and joint tenancy. The Substantive Law (Land Registration Act, 2012). The actual definitions, creation, and handling of these ownership types are detailed under Section 91 of the Land Registration Act (LRA). Joint Tenancy is Characterized by the right of survivorship (when one owner dies, property automatically goes to the survivor). Under current law, new joint tenancies without a court order can generally only be created between spouses. Tenancy in Common is characterized by distinct, undivided shares. There is no right of survivorship; if an owner dies, their share goes to their estate/heirs. Section 91(7) of the LRA governs how joint tenants can execute an instrument to sever the tenancy and convert it into a tenancy in common. If a dispute arises between co-owners (whether joint or in common), the civil procedure rules do apply, but under different orders. Order 37 rule 4 does not apply. Disputes seeking to physically divide land held in common or to compel a sale are typically brought as standard civil suits (by Plaint) under the Land and Environment Court procedures, not via Order 37.
The orders sought by the plaintiff cannot be granted as sought without a substantive hearing. The Plaintiff prays for orders that he is therefore entitled to a declaration of his proprietary and beneficial interest. He seeks an accounts and mesne profits and reimbursement of expenditure incurred. He seeks partition of the suit property; or in the alternative, sale of the property and distribution of the proceeds according to the parties' respective legal and beneficial interests. The Plaintiff accordingly prays that the Originating Summons be allowed as prayed with costs. These orders sought cannot be granted by way of originating summons.
On the merit of the case, I do find that the plaintiff improperly invokes the provisions of the Law of Succession Act (Cap. 160), particularly in relation to the proof and verification of wills. I agree with the respondent that these are matters squarely within the jurisdiction of a probate court seized of a succession cause, and not this Honourable Court. One of the tenants Mr Mothanlal Mitha Pamar is deceased having died on 29th June 1999 and therefore his share devolves to his legal representatives. Ultimately, the Originating Summons is found without merit and is dismissed with costs.
The Plaintiff' has filed Originating Summons seeking, inter alia, declarations regarding the ownership, co-ownership interests, partition and/or sale of Land Parcel No. MOMBASA/BLOCK X/367, together with orders for accounts, mesne profits, reimbursement of contributions made towards the acquisition, maintenance and preservation of the suit property, and such other consequential and equitable reliefs as this Honourable Court may deem fit and just.
The Plaintiff submits that the present proceedings concern a dispute relating to title, co-ownership, beneficial interests, accounting, reimbursement and partition of land, all of which fall squarely within the jurisdiction of this Honourable Court under Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, 2011. The suit property was acquired and registered in the names of four family members, namely:
i. Mohanlal Mitha Parmar (the father);
ii. Gulabchand Mohanlal Mitha Parmar;(Defendant)
iii. Bansikumar Mohanlal Mitha Parmar; (Plaintiff) and
iv. Mahesh Mohanlal Mitha Parmar,(late Brother) who jointly acquired and co-owned the suit property as a father and his three sons.
Subsequently, Mahesh Mohanlal Mitha Parmar passed away on or about 12th December 1998, while Mohanlal Mitha Parmar, the father, passed away on or about 29th June 1999, leaving Gulabchand Mohanlal Mitha Parmar and Bansikumar Mohanlal Mitha Parmar as the surviving co-proprietors.
The Defendant now seeks to introduce succession issues into these proceedings by relying upon an alleged Last Will and Testament purportedly executed on 22nd December 1997, annexed as BM-2, in an attempt to defeat or diminish the Plaintiff's registered and beneficial proprietary interests in the suit property.
The Plaintiff submits that the reliance placed on the alleged Will raises substantial legal and evidentiary concerns. Notably, the alleged testamentary document remained unknown, undisclosed and unacted upon for approximately twenty-nine (29) years, and no probate proceedings, grant of probate, letters of administration, confirmation of grant, or transmission proceedings have ever been undertaken pursuant thereto.
The Plaintiff avers that even members of the immediate family, including the widow and mother of the deceased beneficiaries, had never seen, received, possessed or otherwise become aware of the existence of the alleged Will until its recent production before this Honourable Court in the present proceedings.
The Plaintiff further submits that the present dispute is neither a succession cause nor an application for probate or administration of a deceased person's estate. Rather, it is a dispute concerning proprietary rights arising from registration, co-ownership, beneficial interests, contribution, occupation and division of land under the Constitution of Kenya, the Land Registration Act, 2012 and the Environment and Land Court Act, 2011.
According to the plaintiff, this Honourable Court possesses the requisite constitutional, statutory and equitable jurisdiction to determine the issues arising in this dispute, including the nature of the parties' legal and beneficial interests, the effect, if any, of the alleged testamentary document, and the appropriate reliefs to be granted.
The Background of the case according to the plaintiff is that the suit property, namely MOMBASA/BLOCK X/367, was purchased in or about May 1986 for approximately Kenya Shillings Eight Hundred Thousand (Kshs. 800,000/=) through a combination of cash contributions by the purchasers and financing obtained from the East African Building Society (EABS). The financing facility advanced by EABS amounted to approximately Kenya Shillings Four Hundred and Eighty Thousand (Kshs. 480,000/=) and attracted interest at the rate of approximately 16% per annum
The said Property was discharged on 18th February 1999 and the original Title deed taken by Chauhan Family to UK to assist in payment of Interest charged through the Widow. The property remained charged and had not been discharged at the time of the alleged testamentary disposition relied upon by the Defendant. The plaintiff contends that the Defendant relies upon a purported Last Will dated 22nd December 1997. Evidence demonstrates that the outstanding EABS loan was redeemed through financial assistance from family members resident in the United Kingdom.
The Plaintiff has contributed towards the preservation, maintenance and upkeep of the property. Despite repeated demands and correspondence annexed as BMP-6, the Defendant has failed and/or refused to account for the use and occupation of the suit property.
On the issue of jurisdiction, the plaintiff argues that Jurisdiction is the cornerstone of judicial authority. He cites the case of Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, the Court held:"Jurisdiction is everything. Without it, a Court has no power to make one more step."
a) Article 162(2)(b) of the Constitution establishes this Court with jurisdiction over disputes relating to the use, occupation and title to land.
b) Section 13 of the Environment and Land Court Act grants jurisdiction over disputes relating to ownership, title, partition, occupation, use and interests in land. se matters fall squarely within the jurisdiction of this Honourable Court.In Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, the Supreme Court held that jurisdiction flows from the Constitution and statute.
c) Section 91 of the Land Registration Act recognizes two forms of co-ownership, namely joint tenancy and tenancy in common. Where property is held under joint tenancy, the doctrine of survivorship (jus accrescendi) applies and the interest of a deceased joint tenant automatically accrues to the surviving joint tenant or tenants. Such interest does not form part of the deceased's estate and cannot ordinarily be disposed of by Will.
On whether the Son of the Defendant ( Gulabchand is party to the case, the plaintiff states that no lawful explanation has been provided for the failure of Mr. Gulabchand to personally testify regarding matters peculiarly within his own knowledge and that a Power of Attorney does not convert an attorney into a witness capable of giving evidence concerning facts which are exclusively within the principal's personal knowledge. In Life Insurance Corporation of India v Panesar [1967] EA 614, the Court emphasized that hearsay evidence is generally inadmissible. This Honourable Court should therefore draw an adverse inference under Section 119 of the Evidence Act arising from the failure of the primary witness to testify
On whether the Plaintiff remains a registered co-proprietor under Tenancy in Common with 50% Share, the plaintiff submits that whether the property is held under joint tenancy or tenancy in common; It is common Undisputed ground that the Plaintiff is one of the registered proprietors of the suit property, as evidenced by the Certificate of Title and land records.
The suit property was acquired in or about May 1986 through a combination of cash contributions and mortgage financing obtained from the East African Building Society (EABS) amounting to approximately Kshs. 480,000/= at an interest rate of approximately 16% per annum.
The Plaintiff submits that his registered proprietary rights remain valid, subsisting and enforceable and cannot be defeated except in accordance with the Constitution and statute. Article 40 of the Constitution guarantees the right to acquire and own property and protects every person from arbitrary deprivation of property. Sections 24, 25 and 26 of the Land Registration Act provide that registration confers ownership rights which are indefeasible except as expressly provided by law.
The plaintiff relies on Wreck Motors Enterprises v Commissioner of Lands & Others [1997] eKLR, the Court affirmed that registration confers legally protected proprietary rights which cannot be defeated except through lawful process.
On whether an alleged Will dated 22nd December 1997 can defeat registered proprietary rights in the absence of probate proceedings, the plaintiff submits that Section 91 of the Land Registration Act recognizes two forms of co-ownership, namely joint tenancy and tenancy in common. Where property is held under joint tenancy, the doctrine of survivorship (jus accrescendi) applies and the interest of a deceased joint tenant automatically accrues to the surviving joint tenant or tenants.Such interest does not form part of the deceased's estate and cannot ordinarily be disposed of by Will.
The plaintiff refers to Mbothu & 8 Others v Waitimu & 11 Others [1986] KLR 171, the Court recognized that beneficial ownership may differ from legal ownership. The evidence before Court demonstrates that the suit property was acquired through a blend of cash contributions and mortgage financing and that substantial contributions were subsequently made toward redemption of the mortgage facility.
The Plaintiff further submits that before any succession question can arise, this Honourable Court must first determine the nature of the proprietary interest existing in the suit property. In Gitau v Wandai & 5 Others [1989] KLR 231, the Court recognized the operation of the doctrine of survivorship.Likewise, in Re Estate of Johnson Njuguna (Deceased) [2018] eKLR, the Court held that property held under joint tenancy passes automatically to surviving joint tenants and does not constitute free property available for succession.
The plaintiff argues that the defendant seeks to rely upon an alleged Last Will and Testament dated 22nd December 1997. The alleged Will remained unknown, undisclosed and unacted upon for almost twenty-nine (29) years between 1997 and 2026.No explanation has been offered as to why: no petition for probate was filed, no Grant of Probate was obtained, no Letters of Administration were issued, no transmission of title was undertaken, no beneficiary attempted to enforce the alleged testamentary disposition; and the alleged Will remained concealed for nearly three decades.
The Plaintiff avers that even the widow of the deceased and the mother of the deceased beneficiaries had never seen, been informed of, or otherwise become aware of the existence of the alleged Will throughout the lifetime of the deceased persons or thereafter. These circumstances substantially undermine the credibility, authenticity and evidential value of the alleged testamentary document.
The Plaintiff has observed material discrepancies between the signatures appearing on the alleged Will and the signatures appearing on previous conveyancing documents, title documents, EABS mortgage documents and other instruments executed by the deceased persons during their lifetime. The Court is therefore invited to treat the alleged Will with considerable caution.
Sections 79 and 82 of the Law of Succession Act provide that property of a deceased person vests in personal representatives only upon issuance of a grant of representation.
The plaintiff argues that the defendant lives in the said property despite raising issue of succession and will. Section 45 of the Law of Succession Act prohibits intermeddling with estate property before a grant is issued. It is not disputed that no Grant of Probate, Letters of Administration or Confirmed Grant have been obtained. In Trouistik Union International & Another v Jane Mbeyu & Another [1993] eKLR, the Court of Appeal held that no person may deal with the estate of a deceased person without first obtaining a grant of representation. in Virginia Edith Wambui Otieno v Joash Ochieng Ougo & Another [1987] eKLR, the Court affirmed that succession rights may only be exercised through the procedures prescribed under the Law of Succession Act. The alleged Will remains legally inoperative and incapable of transferring title, extinguishing ownership rights or altering registered interests.
The plaintiff argues that the Defendant's exclusive occupation amounts to unlawful exclusion and unjust enrichment. He refers to the case of Gitau v Wandai & 5 Others [1989] KLR 231, where the Court recognized the operation of the doctrine of survivorship. Likewise, in Re Estate of Johnson Njuguna (Deceased) [2018] eKLR, the Court held that property held under joint tenancy passes automatically to surviving joint tenants and The Plaintiff further submits that the Defendant has remained in exclusive occupation and possession of the suit property while excluding the Plaintiff from the use, occupation and enjoyment thereof.
The plaintiff argues that the Defendant has failed to render accounts, share profits or permit partition despite repeated requests and demands. Equity does not permit one co-owner to benefit unjustly at the expense of another.
The plaintiff refers to the case of Benedetti v Sawiris [2013] UKSC 50, where the Court held that unjust enrichment arises where one party receives a benefit at another's expense under circumstances making retention of that benefit unjust. The Defendant has therefore been unjustly enriched by enjoying exclusive possession and benefit of jointly owned property.
The Plaintiff has also expended substantial sums towards, servicing and redemption of the EABS mortgage payment of rates; maintenance and repairs; and preservation of the suit property as evidenced by BM-4 and BM-5.In Leigh v Dickeson (1884) 15 QBD 60, the Court recognized the right of contribution and reimbursement among co-owners.
The Plaintiff is also entitled to accounts and mesne profits.Section 2 of the Civil Procedure Act defines mesne profits as profits received or which with ordinary diligence might have been received by a person in wrongful possession.
The Plaintiff further notes that the Defendant has attempted to introduce evidence through the son of Mr. Gulabchand Mohanlal Parmar despite the fact that Mr. Gulabchand is alive, competent, and healthy and a party to these proceedings. Finally, Section 94 of the Land Registration Act empowers this Honourable Court to order partition of co-owned property and, where partition is impracticable, to order sale and distribution of the proceeds according to the parties' respective interests.
The parties have failed to agree on management, occupation and use of the suit property, and the relationship of co-ownership has irretrievably broken down.In Achar v Achar [2011] eKLR, the Court recognized that where co-ownership becomes impracticable, the Court may order sale and equitable distribution. The Plaintiff accordingly prays that the Originating Summons be allowed with costs. The dispute concerns title, co-ownership and division of land, It does not concern succession. The Plaintiff prays for orders that a declaration be made of his proprietary and beneficial interests; accounts and mesne profits; reimbursement of expenditure incurred; partition of the suit property; or in the alternative, sale of the property and distribution of the proceeds according to the parties' respective legal and beneficial interests. The Plaintiff accordingly prays that the Originating Summons be allowed as prayed with costs.
DEFENDANTS CASE
The defendant opposes the application through the replying Affidavit sworn by Tushal Gulabchan Parmar, the biological son and duly authorized attorney of the Respondent, and submits that the Applicant's claim is fundamentally defective, incompetent, misconceived, legally untenable, wholly devoid of merit, and constitutes a gross abuse of the process of this Honourable Court.
Article 159(2) of the Constitution mandates that judicial authority is derived from the people and vested in the courts, which must administer justice without undue regard to procedural technicalities, ensuring substantive justice for all persons, irrespective of their status. In the present case, the Claimant urges this Honourable Court to be guided by these constitutional imperatives, and to ensure that justice is not sacrificed at the altar. Deriving from the ambits of the Kenyan Constitution 2010, the Applicants brings to the attention of this Honourable Court one main issues for determination manifest itself;
The defendant argues that the Originating Summons is incompetent and fatally defective for invoking the Law of Succession Act in a property dispute before this Court. The Defendant/Respondent submits that the Originating Summons, as framed, improperly invokes the provisions of the Law of Succession Act (Cap. 160), particularly in relation to the proof and verification of wills. These are matters squarely within the jurisdiction of a probate court seized of a succession cause, and not this Honourable Court. Accordingly, the issues raised fall outside this Court's jurisdiction.
Further, the Defendant/Respondent submits that the Originating Summons is incurably defective for failure to comply with the mandatory requirements of Order 37 Rule 7 of the Civil Procedure Rules, 2010. It is trite that an originating summons brought under section 38 of the Limitation of Actions Act must be supported by an affidavit annexing a certified extract of the title to the land in question. The Plaintiff's failure to annex such extract renders the Originating Summons incompetent.
The Plaintiff's reliance on succession law, without a proper invocation of this Court's jurisdiction under the Land Registration Act, constitutes a clear abuse of the court process which ought to be arrested at the earliest opportunity. This position was well buttressed in the case of Benjamin Barasa Wafula v Attorney General & 6 others [2019] KEELC 555, the Environment and Land Court at Bungoma declared that;
"A Court of law will frown on any claim that amounts to an abuse of its process and is duty bound to strike out such claims. This is because Courts have inherent jurisdiction to protect themselves from abuse of their processes... What does constitute an abuse of process of the Court is a matter which needs to be determined by the circumstances of each case... an abuse of process takes place where the proceedings permitted by the rules of Court to facilitate the pursuit of the truth are used for purposes extraneous to that objective."
The mischief identified in the foregoing authority is evident in the present case. The Plaintiff seeks to advance a property ownership claim through the improper invocation of succession law, thereby pursuing a purpose extraneous to the proper administration of justice. Similarly, in Gatingi & 19 others v Sanghani [2024] KEELC 335 (KLR), the Environment and Land Court at Nairobi (Mogeni J) struck out an originating summons for failure to comply with Order 37 Rule 7;
"The originating summons filed herein does not have an extract of title as an annexure. And since the requirement to annex such extract is mandatory, failure to annex it makes the originating summons incompetent."
The Plaintiff's Originating Summons suffers the same mandatory defect and must meet the same fate. The Defendant/Respondent submits that the court in applying these principles to the present matter, the Plaintiff's Originating Summons is irredeemably flawed. By seeking determinations that properly belong to a succession court and failing to comply with the mandatory procedural prerequisites for an originating summons, the Plaintiff has invoked this Court's jurisdiction improperly. The Originating Summons ought to be struck out in limine with costs to the Respondent.
The defendant submits that the suit property is held under tenancy in common and that the legal distinction between joint tenancy and tenancy in common is well settled in Kenyan land law. In a joint tenancy, the doctrine of survivorship (jus accrescendi) applies, such that upon the death of one joint tenant, their interest automatically vests in the surviving tenant or tenants. Conversely, under a tenancy in common, each proprietor holds a distinct though undivided share, which does not pass to the surviving co-owners upon death, but instead devolves as part of the deceased's estate in accordance with the law of succession. The defendant refers to Section 91(5) of the Land Registration Act, 2012, which provides that;
"where land is held in common, each tenant is entitled to an undivided share, and upon death, such share forms part of the deceased's estate."
According to the defendant, the import of this provision is dispositive of the present dispute. The registered proprietors of TITLE NO. MOMBASA/BLOCK X/367 held the suit property as tenants in common in equal undivided shares. Accordingly, the doctrine of survivorship is wholly inapplicable to the circumstances of this case and cannot be relied upon by the Plaintiff. This position was adequately buttressed in the Court of Appeal decision of Kariba & another v Ndungu [2023] KEELC 18213 (KLR) where Kemei J authoritatively stated:
"As at now the current statute applicable to the registration of interest in the suit land is the Land Registration Act. The applicable law is found in Section 91(2) of the Land Registration Act which states as follows;(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."
The Respondent submits the title document in the present matter demonstrates that the proprietors held equal, undivided shares, which is the hallmark of a tenancy in common. The defendant refers further to the dictum of Munyao Sila J in the case of Isabel Chelangat v Samuel Tiro Rotich & 5 others [2012] KEHC 5520,
"Tenancy in common on the other hand is different from joint tenancy. In a tenancy in common, the two or more holders hold the property in equal undivided shares. Each tenant has a distinct share in the property which has not yet been divided among the co-tenants. The largest factor that distinguishes a joint tenancy from a tenancy in common is the absence of the doctrine of survivorship in the latter. The share of one tenant is not affected by the death of one of the co-owners. The share of the deceased, devolves not to the other co-owner, but to the estate of the deceased co-owner."
The Respondent/Defendant submits that the suit property was registered in the names of four co-proprietors, each holding an undivided and equal share (annexure TGP-3). By operation of section 91(5) of the Land Registration Act, the death of any co-proprietor does not trigger survivorship; instead, the deceased's share devolves to his or her estate. The Plaintiff's attempt to import the doctrine of survivorship is therefore legally untenable.
On whether the Plaintiff/Applicant has discharged the burden of proof regarding the alleged loan repayments, municipal rates, and payments to third parties, the Respondent/Defendant submits that the answer to this is in the non- affirmative for the following reasons;
The allegations made by the Plaintiff/Applicant of having made loan repayments, paid municipal rates, and remitted sums to the Chauhan Family (UK) are not supported by any receipts, vouchers, of account, or any certified documentary proof whatsoever in support of these claims.
Sections 107, 108, and 109 of the Evidence Act (Cap. 80). Place the burden of proof on the person who alleges. The party who asserts the existence of a fact must prove it. Where a claim is in the nature of special damages, the standard is even strict and such damages must not only be specifically pleaded but strictly proved. A mere allegation, unsupported by documentary evidence, cannot justify an award. This position was well highlighted in the case of Capital Red Holdings v Principal Secretary, Ministry of Interior and Coordination of National Government & another [2026] KEHC 2393 (KLR), where the Mulwa J reiterated;
"The law on special damages is settled. They must not only be specifically pleaded but must also be strictly proved."
ANALYSIS AND DETRMINATION
To understand the originating summons by the plaintiff, we need to Identify the law under which the same is made. The applicant seeks remedies under the provisions of order 37 rules 1, 2, 3 and 4 of the Civil Procedure Rules.
Order 37, Rule 1 of the Kenyan Civil Procedure Rules governs who can file an Originating Summons. It permits executors, administrators, trustees, creditors, heirs, and beneficiaries to seek court determinations on specific, straightforward matters (like estate administration or trust interpretation) directly before a judge in chambers.
Order 37, Rule 2 of the Kenyan Civil Procedure Rules outlines the procedure for the administration of estates or trusts. It allows eligible beneficiaries or trustees to apply for a court order directing the administration of a deceased person's estate (real or personal) or the proper execution of a trust.
Order 37 Rule 3 of the Kenya Civil Procedure Rules governs Summons by a vendor or purchaser of land. It allows either party (or their representatives) to apply to the High Court via an Originating Summons in chambers to resolve disputes, objections, or compensation claims connected to a contract for the sale of immovable property, excluding questions about the validity of the contract itsel
Order 37, Rule 4 of the Kenyan Civil Procedure Rules governs Summons by a Mortgagee, Mortgagor, and Others. It allows anyone with a legal/equitable mortgage, charge, or the right to foreclose/redeem property to file an originating summons in a judge's chambers. Reliefs sought can include sale, foreclosure, or delivery of possession..
The order provides as follows:-
“Any mortgagee or mortgagor, whether legal or equitable, or any person entitled to or having property subject to a legal or equitable charge, or any person having the right to foreclose or redeem any mortgage, whether legal or equitable, may take out
as of course an originating summons, returnable before the judge in chambers, for such relief of the nature or kind following as may be by the summons specified, and as the circumstances of the case may require; that is to say, sale, foreclosure, delivery of possession by the mortgagor, redemption, reconveyance, delivery of possession by the mortgagee.”
Order 37 of the Civil Procedure Rules does not directly govern the substantive law or distinctions between tenants in common and joint tenancy. The Substantive Law (Land Registration Act, 2012). The actual definitions, creation, and handling of these ownership types are detailed under Section 91 of the Land Registration Act (LRA). Joint Tenancy is Characterized by the right of survivorship (when one owner dies, property automatically goes to the survivor). Under current law, new joint tenancies without a court order can generally only be created between spouses. Tenancy in Common is characterized by distinct, undivided shares. There is no right of survivorship; if an owner dies, their share goes to their estate/heirs. Section 91(7) of the LRA governs how joint tenants can execute an instrument to sever the tenancy and convert it into a tenancy in common. If a dispute arises between co-owners (whether joint or in common), the civil procedure rules do apply, but under different orders. Order 37 rule 4 does not apply. Disputes seeking to physically divide land held in common or to compel a sale are typically brought as standard civil suits (by Plaint) under the Land and Environment Court procedures, not via Order 37.
The orders sought by the plaintiff cannot be granted as sought without a substantive hearing. The Plaintiff prays for orders that he is therefore entitled to a declaration of his proprietary and beneficial interest. He seeks an accounts and mesne profits and reimbursement of expenditure incurred. He seeks partition of the suit property; or in the alternative, sale of the property and distribution of the proceeds according to the parties' respective legal and beneficial interests. The Plaintiff accordingly prays that the Originating Summons be allowed as prayed with costs. These orders sought cannot be granted by way of originating summons.
On the merit of the case, I do find that the plaintiff improperly invokes the provisions of the Law of Succession Act (Cap. 160), particularly in relation to the proof and verification of wills. I agree with the respondent that these are matters squarely within the jurisdiction of a probate court seized of a succession cause, and not this Honourable Court. One of the tenants Mr Mothanlal Mitha Pamar is deceased having died on 29th June 1999 and therefore his share devolves to his legal representatives. Ultimately, the Originating Summons is found without merit and is dismissed with costs.