This ruling is in respect of the Notice of Motion application dated 24/8/2024 brought on behalf of the applicant pursuant to the provisions of Order 51 Rules 1, 3 & 4 of the Civil Procedure Rules, sections 60, 86 & 101 of the Land Registration Act, section 13 (2) of the Environment and Land Court Act and section 49 of the Land Act.
The application seeks for orders that:
- The honourable court be pleased to find and hold that upon death of a joint proprietor and /or one of the joint proprietors over and in respect of a parcel registered pursuant to the provisions of the Land Registration Act 2012 the rights and/or interest in respect of the subject property vests and/or inheres in the survivor(s).
- That the honourable court be pleased to find and hold that upon provision of a certified copy of Certificate of Death in respect of the deceased joint owner, the Land Registrar, the 1st Respondent herein, is obligated to register the Certificate of Death.
- That this honourable court be pleased to find that the refusal by the 1st Respondent to accept and register the certificate of death of one Agade Mukutu deceased who was a joint owner in respect of the suit property L.R NO. SOUTH MARAGOLI/BUYONGA/179 was unlawful and contrary to the provisions of the law.
- That the honourable court be pleased to order the 1st Respondent herein to register the Certificate of Death in respect of Agade Mukutu, deceased.
- That the honourable court do issue an order compelling the 1st Respondent herein to issue a title deed over and in respect of the suit property in favor of the applicant herein who is the surviving joint tenant.
- The costs of this application be provided for.
The grounds upon which the application was brought are that the applicant and Agade Mukutu, deceased, are joint registered owners and/or proprietors of land parcel NO. SOUTH MARAGOLI/BUYONGA/179 and a title issued in their joint names. That on 10th August 1996 one of the joint proprietors, Agade Mukutu, passed on and subsequently the Registrar of Births and Deaths issued a Certificate of Death. That upon presentation of the Certificate of Death in respect of the deceased to the 1st Respondent, the 1st Respondent declined to register the same and directed that the applicant carries out succession in respect of the suit property.
That the actions of the 1st Respondent are ultra-vires and infringe the rights of the applicant. That the applicant stands to suffer great loss and/or prejudice unless the application is heard and the orders sought granted.
The application was supported by the averments into Supporting Affidavit of Henry Viesta Mukutu, the applicant, and the annexures thereto.
The application was not opposed. Affidavit of service sworn by Mokaya Ariga Peter shows that the Respondents were served with the application and hearing notice. They failed to respond to the application and to attend court for prosecution thereof. The application was urged orally on 20/11/2024.
I have considered the application and the oral submissions made. The copy of title deed dated 9/4/1974 annexed to the Supporting Affidavit shows that the suit land parcel NO SOUTH MARAGOLI/BUYONGA/179 measuring 0.08ha is registered in the names of the applicant and one Agade Mukutu. There is no indication on the title deed as to whether the two held the land as joint owners or tenants in common. Certificate of Death No. 0716014 dated 20/5/2019, a copy of which was also annexed to the Supporting Affidavit, shows that Joshua Agade Mukutu died on 10/8/1996 aged 56. The applicant’s case is that ownership of the suit land by him and the deceased was a joint ownership and now that the deceased died, the suit land should vest in him alone as the surviving joint tenant by operation of law.
The title deed was issued on 9/4/1974 when the operational law was the Registered Land Act Cap 300 Laws of Kenya now repealed. Sections 101 to 103 of the Act recognized the doctrine of survivorship in joint ownership of land. Section 101 required that an instrument made in favour of two or more persons and the registration giving effect thereof shows whether those persons are joint proprietors or proprietors in common and where they are proprietors in common, the share of each proprietor.
The title deed is silent on the nature of interests held by the applicant and the deceased. The Registered Land Act had no provision on what happens when the title deed is silent. Under the current land law regime section 91 (2) of the Land Registration Act introduces a rebuttable presumption to cure this void. It provides-
“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 Court of Appeal while dealing with a case concerning property registered under the old regime and where the title document was silent as to the nature of interest held by the proprietors in the case of Mukazitoni Josephine vs Attorney General of Kenya [2015] eKLR, held -
“the 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 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 interests of each registered owner is determinable and severable; in a joint tenancy the interests of each owner is indeterminable each owns all and nothing.”
This was the position before the enactment of the Land Registration Act.
The provisions of the Land Registration Act cannot apply retrospectively to registrations that happened before its enactment.
The applicant’s complaint is that his request to the Land Registrar to cause the land to be registered in his sole name as sole proprietor as he is the surviving joint owner was rejected by the Land Register who advised him to undertake succession in respect of the estate of the deceased.
Section 102 (1) (b) provided that
“Where the land, lease or charge is owned jointly, no proprietor is entitled to any separate share in the land and consequently- on the death of a joint proprietor his interest shall vest in the surviving proprietor or the surviving proprietors jointly.”
Section 46 of the Land Act, 2012 provides for transmission on death of a joint proprietor that on proof of death of one or more joint proprietors, the Land Registrar shall delete the name of the deceased from the register by registration of the death certificate. The actions and/or omissions of the Land Registrar of declining to register the death certificate and proceed to delete the name of the deceased were therefore contrary to the law. Upon provision of a certified copy of Certificate of Death in respect of the deceased joint owner, the Land Registrar is obligated to register the Certificate of Death, proceed to delete the name of the deceased and issue new title deed in the name of the surviving joint owner(s).
For the foregoing reasons, I find that the application has merit and hereby allow it. No order as to costs.
Orders accordingly.
Ruling, dated and signed at Vihiga, read virtually this 30th day of January 2025 through Microsoft Teams Online Application.
E. ASATI
JUDGE.
In the presence of:
Maureen: Court Assistant.
Chepkorir for the applicant.
No appearance for the Respondents.