'Rotich Ernest (hereinafter referred to as the applicant) prays that he be enjoined in this matter as an interested party. The grounds of the application are that the Applicant is the registered proprietor of the leasehold interest in the parcel of land known as Nakuru Municipality Block 17/94, the suit property herein, as evidenced by the Certificate of Lease attached.
The Plaintiff herein has filed this suit seeking, inter alia, orders of permanent injunction restraining the Defendants and any other persons from encroaching, demolishing structures, or interfering with the Plaintiffs alleged proprietary rights and interests over the parcel of land known as Nakuru Municipality Block 17/94.
According to the applicant, the Plaintiff by their own statement in the Amended Plaint, admit that the Applicant herein possesses rightful ownership of the suit property and that the same was rightfully and legally determined pursuant to formal complaint R.C.I.O FILE NO. 760/755/2019 —C.F. 3184/2019 that the Suit property Nakuru Municipality Block 17/94 belongs to the Applicant and not the Plaintiff therein. Further that the orders sought by the Plaintiff, if granted, will directly and adversely affect the Applicant proprietary interests in the suit property, as he is the current registered proprietor.
The Applicant contends that his presence and participation in these proceedings is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit, in accordance with Order 1 Rule 10(2) of the Civil Procedure Rules and that he has a legitimate and substantial interest in the subject matter of the suit, and his joinder is necessary to protect his constitutional right to property under Article 40 of the Constitution of Kenya 2010.
The applicant believes that it is in the interest of justice, fairness, and to avoid multiplicity of suits that the Intended Interested Party be enjoined so that he can be heard before any adverse orders are made and that no prejudice will be occasioned to any party by the enjoinder of the Applicants as Interested Parties. The supporting affidavit reiterates the grounds of the application.
The application is opposed by the first defendant who filed the replying affidavit wherein he states that that applicant has not annexed a nnexed a copy of his national identification card as evidence that he is Rotich Ernest who is mentioned in the certificate of lease. Moreover, that a joint proprietor cannot act without the authority of the co-owner. That at all material times, the suit property was sold to and transferred to the plaintiff who paid the valuable consideration. That joinder of the applicant will expand the scope of the claim and delay the hearing of the suit.
Mr Tombe learned counsel for the applicant submits that Order 1 rule 10 of the CPR 2010 gives the applicant the right to be enjoined as an interested party and gives the court the power to make an order of enjoinder of parties. He argues eloquently that the presence of the applicant in this matter is necessary because he is a registered owner. That the plaintiff at paragraph 11 and 12 of the plaint has alluded to the fact that the applicant is an owner of the land. The plaintiff does not oppose to application.
M/s Njeri learned counsel for the 1st defendant on her part in opposition of the application argues that the applicant has not produced his identify card. Moreover, learned counsel argues that the affidavit is defective as the interested party is not verifiable. The 1st defendants counsel argues that one registered owner in a joint ownership cannot sue on his own but they should file an application jointly as none is a party to the suit. Moreover, that the applicant intents to convolute the issues.
In response, Mr. Tombe argues that no Identity card is indicated on the title and therefore the issue shall be verified during the hearing. Moreover, that the court should do substantive justice.
I have considered the application and rival submissions and do find that the applicant has demonstrated that he is a registered owner of the suit property. He is registered alongside with Musa Kipkurgat Kiprop. Their ID cards are indicated in the title. The two were registered on12th November 2018 and the certificate of lease issued the same date. However, there is no indication on the title as to whether it is held under joint tenancy or tenancy in common.
The Registered Land Act was repealed by the Land Registration Act, 2012which has similar provisions in sections 91, which states as follows in subsection (4):
“If land is occupied jointly, no tenant is entitled to any separate share in the land and consequently –
(a) a dispositions may be made only by all the joint tenants;
(b) on the death of a joint tenant, that tenant’s interest shall vest in the surviving tenant or tenants jointly; or
(c) Each joint tenant may transfer their interest inter vivos to all the other tenants but to no other person and any attempt to so transfer an interest to any other person shall be void.”
The distinction between joint tenancy and tenancy in common was made in Isabel Chelangat v Samuel Tiro Rotich & 5 others (2012) eKLR, as follows:
“At this juncture, I must distinguish between joint ownership of land and land held in common. These are two different types of tenancies by which two or more people are entitled to simultaneous enjoyment of land. To expound on this point, I have borrowed heavily from two texts, Megary & Wade, The Law of Real Property 6th Edition and Cheshire & Burn’s, Modern Law of Real Property, 16th Edition. According to Burn, at P242 “...a joint tenancy arises whenever land is conveyed or devised to two or more persons without any words to show that they are to take distinct and separate shares…” Further, that “there is a thorough and intimate union between joint tenants. Together, they form one person.”
A joint tenancy imparts to the joint owners, with respect to all other persons than themselves, the properties of one single owner. Although as between themselves joint tenants have separate rights, as against everyone else they are in the position of a single owner. Joint tenancy carries with it the right of survivorship and “four unities”. The right of survivorship (jus accrescendi) means that when one joint owner dies, his interest in the land passes on to the surviving joint tenant. A joint tenancy cannot pass under will or intestacy of a joint tenant so long as there is a surviving joint tenant as the right of survivorship takes precedence. The four unities that must be present in a joint tenancy are
(i) The unity of possession.
(ii) The unity of interest.
(iii) The unity of title.
(iv) The unity of time.
On unity of possession, each co-owner is entitled to possession of any part of the land as the other/s. (P477) One co-owner cannot point to any part of the land as his own to the exclusion of the other/s. If he could, then this would be separate ownership and not co-ownership. No one co-owner has a better right to the property than the other/s, so that an action for trespass cannot lie against another co-owner. Unity of interest means that the interest of each joint tenant is the same in extent, nature and duration, for in theory of law, they hold just one estate. Unity of title means that each joint tenant must claim his title to the land under the same act or document. This is satisfied by having the joint tenants acquiring their rights by the same conveyance and being so registered as joint tenants. Unity of time means that the interest of each tenant must vest at the same time.
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. In other words, they have separate interests only that it remains undivided and they hold the interest together. 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. Although the four unities required for a joint-tenancy may be present, only one, the unity of possession is essential.
A joint tenancy can be converted into a tenancy in common by the doctrine of severance. But unless this is done the rights of joint holders so remain.”
In Re Estate of Dorica Lumire Mapesa (Deceased) [2018] eKLR the court stated as follows on the same issue:
“20. Having concluded that East/Wanga/Lubinu/66 was held by the deceased and Silas Okumu Simeyo as joint proprietors, it follows then that following her demise on 6th February 1994, the principle of jus accrescendi applied, and her interest in the said property merged or united with that of the surviving joint tenant or joint proprietor, Silas Okumu Simeyo. The effect of this then would be that the said property ceased to form part of the estate of the deceased and was not available for distribution in her estate. Indeed, by virtue of section 118 of the Registered Land Act, Silas Okumu Simeyo, did not even need to initiate a succession cause to have the property transferred to his name, all he should have done was provide proof of the death of the joint tenant to the Land Registrar for him to act as envisaged by that provision.”
In Re Estate of Johnson Njogu Gichohi (Deceased) [2018] eKLR, the court stated that:
“By the principle of survivorship land owned jointly passes automatically to the surviving owner when one dies without the need to file a Succession Cause. W. M. Musyoka in his book Laws of Succession at page 3 states as follows: -
“Property is capable of passing upon death other than by will. It may pass by survivorship…….. This applies in cases of joint tenancies that is, where property is jointly owned. Where a co-owner of property is a beneficial joint tenant of the property, their interest will automatically/pass to the surviving tenant upon their death by virtue of the principle of survivorship…… The principle of survivorship operates to remove jointly owned property from the operation of the law of Succession upon the death of one of the joint tenants.”
Under Section 91(2) of the Land Registration Act no 3 of 2012, where two or more individuals acquire land through an instrument that does not specify the nature of their co-ownership, the law presumes a tenancy in common in equal shares unless a written law states otherwise. I have perused the certificate of lease annexed and do find that the same does not specify the nature of their co –ownership and therefore it is presumed to be tenancy in common in equal shares. Therefore the argument by M/s Njeri that the applicant should have brought the application to be enjoined with the co-owner has no merit and the case of Muzakitoni does not apply.
The argument by the 1st defendant that the applicant should have filed a joint application with Musa Kiprop does not have merit because the co-owners are tenants in common and not joint tenants and therefore any of the co-owners can sue and be sued. This court finds that even if the tenancy was joint the applicant’s application would still have merit because under joint tenancy each owner has undivided equal share of the property and the right of survivorship whereas the co-tenants in common do not have the right of survivorship. This means that in a joint tenancy, if one owner dies his share automatically passes to the surviving owner(s). In tenancy in common a deceased owners’ share is passed to their heirs through their will. Joint tenants have equal undivided share acquired at the same time and through the same document. Tenants in common can have un-equal shares acquired at different times. From the above, even if the tenancy was joint the applicant has the right to sue alone for his equal-undivided share of the property.
The law on joinder of an interested party is now settled in Kenya. Joinder as an interested party in Kenya allows a non-litigant with a direct legal interest in a case to participate in proceedings, but it is not an automatic right and requires court discretion. The applicant must demonstrate a clear, proximate interest, potential prejudice if not joined, and the necessity of their presence for a complete resolution of the matter.
The Black’s Law Dictionary, 9th Edition defines a “Necessary Party” as being
“A party who being closely connected to a lawsuit should be included in the case if feasible but whose absence will not require dismissal of proceedings”
The Supreme Court of Kenya in the case of Francis K. Muruatetu and another v. Republic & 5 others (2016) eKLR, set out identifiable key elements for consideration in an application for joinder as an Interested Party. The elements are as follows: -
“a. The Personal interest or stake that the party has in the matter must be set out in the application. The Interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
b. The prejudice to be suffered by the intended Interested Party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.
c. Lastly, a party must, in its application, set out the case and/or submission it intends to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court.”
In Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others [2017] eKLR, Mativo. J. explained when an interested party ought to be enjoined in a proceeding. He stated: -
“A person is legally interested in the proceedings only if he can say that it may lead to a result that will affect him legally that is by curtailing his legal rights. In determining whether or not an applicant has a legal interest in the subject matter of an action sufficient to entitle him to be joined as an interested party the true test lies not so much in an analysis of what are the constituents of the applicant''s rights, but rather in what would be the result on the subject-matter of the action if those rights could be established. It is apparent that a party claiming to be enjoined in proceedings must have an interest in the pending litigation, but the interest must be legal, identifiable or demonstrate a duty”.
In the case of Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others [2014] eKLR the Supreme Court of Kenya held that;
“[22] In determining whether the applicant should be admitted into these proceedings as an Interested Party we are guided by this Court’s Ruling in the Mumo Matemo case where the Court (at paragraphs 14 and 18) held:
“[An] interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause…”
Similarly, in the case of Meme v. Republic, [2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that:
“(i) Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;
(ii) joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;
(iii) joinder to prevent a likely course of proliferated litigation.”
Thus. I do allow the application and order that Rotich Ernest be enjoined as an interested party and to file interested party’s affidavit within 15 days. Costs in the cause.
'
The Plaintiff herein has filed this suit seeking, inter alia, orders of permanent injunction restraining the Defendants and any other persons from encroaching, demolishing structures, or interfering with the Plaintiffs alleged proprietary rights and interests over the parcel of land known as Nakuru Municipality Block 17/94.
According to the applicant, the Plaintiff by their own statement in the Amended Plaint, admit that the Applicant herein possesses rightful ownership of the suit property and that the same was rightfully and legally determined pursuant to formal complaint R.C.I.O FILE NO. 760/755/2019 —C.F. 3184/2019 that the Suit property Nakuru Municipality Block 17/94 belongs to the Applicant and not the Plaintiff therein. Further that the orders sought by the Plaintiff, if granted, will directly and adversely affect the Applicant proprietary interests in the suit property, as he is the current registered proprietor.
The Applicant contends that his presence and participation in these proceedings is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit, in accordance with Order 1 Rule 10(2) of the Civil Procedure Rules and that he has a legitimate and substantial interest in the subject matter of the suit, and his joinder is necessary to protect his constitutional right to property under Article 40 of the Constitution of Kenya 2010.
The applicant believes that it is in the interest of justice, fairness, and to avoid multiplicity of suits that the Intended Interested Party be enjoined so that he can be heard before any adverse orders are made and that no prejudice will be occasioned to any party by the enjoinder of the Applicants as Interested Parties. The supporting affidavit reiterates the grounds of the application.
The application is opposed by the first defendant who filed the replying affidavit wherein he states that that applicant has not annexed a nnexed a copy of his national identification card as evidence that he is Rotich Ernest who is mentioned in the certificate of lease. Moreover, that a joint proprietor cannot act without the authority of the co-owner. That at all material times, the suit property was sold to and transferred to the plaintiff who paid the valuable consideration. That joinder of the applicant will expand the scope of the claim and delay the hearing of the suit.
Mr Tombe learned counsel for the applicant submits that Order 1 rule 10 of the CPR 2010 gives the applicant the right to be enjoined as an interested party and gives the court the power to make an order of enjoinder of parties. He argues eloquently that the presence of the applicant in this matter is necessary because he is a registered owner. That the plaintiff at paragraph 11 and 12 of the plaint has alluded to the fact that the applicant is an owner of the land. The plaintiff does not oppose to application.
M/s Njeri learned counsel for the 1st defendant on her part in opposition of the application argues that the applicant has not produced his identify card. Moreover, learned counsel argues that the affidavit is defective as the interested party is not verifiable. The 1st defendants counsel argues that one registered owner in a joint ownership cannot sue on his own but they should file an application jointly as none is a party to the suit. Moreover, that the applicant intents to convolute the issues.
In response, Mr. Tombe argues that no Identity card is indicated on the title and therefore the issue shall be verified during the hearing. Moreover, that the court should do substantive justice.
I have considered the application and rival submissions and do find that the applicant has demonstrated that he is a registered owner of the suit property. He is registered alongside with Musa Kipkurgat Kiprop. Their ID cards are indicated in the title. The two were registered on12th November 2018 and the certificate of lease issued the same date. However, there is no indication on the title as to whether it is held under joint tenancy or tenancy in common.
The Registered Land Act was repealed by the Land Registration Act, 2012which has similar provisions in sections 91, which states as follows in subsection (4):
“If land is occupied jointly, no tenant is entitled to any separate share in the land and consequently –
(a) a dispositions may be made only by all the joint tenants;
(b) on the death of a joint tenant, that tenant’s interest shall vest in the surviving tenant or tenants jointly; or
(c) Each joint tenant may transfer their interest inter vivos to all the other tenants but to no other person and any attempt to so transfer an interest to any other person shall be void.”
The distinction between joint tenancy and tenancy in common was made in Isabel Chelangat v Samuel Tiro Rotich & 5 others (2012) eKLR, as follows:
“At this juncture, I must distinguish between joint ownership of land and land held in common. These are two different types of tenancies by which two or more people are entitled to simultaneous enjoyment of land. To expound on this point, I have borrowed heavily from two texts, Megary & Wade, The Law of Real Property 6th Edition and Cheshire & Burn’s, Modern Law of Real Property, 16th Edition. According to Burn, at P242 “...a joint tenancy arises whenever land is conveyed or devised to two or more persons without any words to show that they are to take distinct and separate shares…” Further, that “there is a thorough and intimate union between joint tenants. Together, they form one person.”
A joint tenancy imparts to the joint owners, with respect to all other persons than themselves, the properties of one single owner. Although as between themselves joint tenants have separate rights, as against everyone else they are in the position of a single owner. Joint tenancy carries with it the right of survivorship and “four unities”. The right of survivorship (jus accrescendi) means that when one joint owner dies, his interest in the land passes on to the surviving joint tenant. A joint tenancy cannot pass under will or intestacy of a joint tenant so long as there is a surviving joint tenant as the right of survivorship takes precedence. The four unities that must be present in a joint tenancy are
(i) The unity of possession.
(ii) The unity of interest.
(iii) The unity of title.
(iv) The unity of time.
On unity of possession, each co-owner is entitled to possession of any part of the land as the other/s. (P477) One co-owner cannot point to any part of the land as his own to the exclusion of the other/s. If he could, then this would be separate ownership and not co-ownership. No one co-owner has a better right to the property than the other/s, so that an action for trespass cannot lie against another co-owner. Unity of interest means that the interest of each joint tenant is the same in extent, nature and duration, for in theory of law, they hold just one estate. Unity of title means that each joint tenant must claim his title to the land under the same act or document. This is satisfied by having the joint tenants acquiring their rights by the same conveyance and being so registered as joint tenants. Unity of time means that the interest of each tenant must vest at the same time.
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. In other words, they have separate interests only that it remains undivided and they hold the interest together. 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. Although the four unities required for a joint-tenancy may be present, only one, the unity of possession is essential.
A joint tenancy can be converted into a tenancy in common by the doctrine of severance. But unless this is done the rights of joint holders so remain.”
In Re Estate of Dorica Lumire Mapesa (Deceased) [2018] eKLR the court stated as follows on the same issue:
“20. Having concluded that East/Wanga/Lubinu/66 was held by the deceased and Silas Okumu Simeyo as joint proprietors, it follows then that following her demise on 6th February 1994, the principle of jus accrescendi applied, and her interest in the said property merged or united with that of the surviving joint tenant or joint proprietor, Silas Okumu Simeyo. The effect of this then would be that the said property ceased to form part of the estate of the deceased and was not available for distribution in her estate. Indeed, by virtue of section 118 of the Registered Land Act, Silas Okumu Simeyo, did not even need to initiate a succession cause to have the property transferred to his name, all he should have done was provide proof of the death of the joint tenant to the Land Registrar for him to act as envisaged by that provision.”
In Re Estate of Johnson Njogu Gichohi (Deceased) [2018] eKLR, the court stated that:
“By the principle of survivorship land owned jointly passes automatically to the surviving owner when one dies without the need to file a Succession Cause. W. M. Musyoka in his book Laws of Succession at page 3 states as follows: -
“Property is capable of passing upon death other than by will. It may pass by survivorship…….. This applies in cases of joint tenancies that is, where property is jointly owned. Where a co-owner of property is a beneficial joint tenant of the property, their interest will automatically/pass to the surviving tenant upon their death by virtue of the principle of survivorship…… The principle of survivorship operates to remove jointly owned property from the operation of the law of Succession upon the death of one of the joint tenants.”
Under Section 91(2) of the Land Registration Act no 3 of 2012, where two or more individuals acquire land through an instrument that does not specify the nature of their co-ownership, the law presumes a tenancy in common in equal shares unless a written law states otherwise. I have perused the certificate of lease annexed and do find that the same does not specify the nature of their co –ownership and therefore it is presumed to be tenancy in common in equal shares. Therefore the argument by M/s Njeri that the applicant should have brought the application to be enjoined with the co-owner has no merit and the case of Muzakitoni does not apply.
The argument by the 1st defendant that the applicant should have filed a joint application with Musa Kiprop does not have merit because the co-owners are tenants in common and not joint tenants and therefore any of the co-owners can sue and be sued. This court finds that even if the tenancy was joint the applicant’s application would still have merit because under joint tenancy each owner has undivided equal share of the property and the right of survivorship whereas the co-tenants in common do not have the right of survivorship. This means that in a joint tenancy, if one owner dies his share automatically passes to the surviving owner(s). In tenancy in common a deceased owners’ share is passed to their heirs through their will. Joint tenants have equal undivided share acquired at the same time and through the same document. Tenants in common can have un-equal shares acquired at different times. From the above, even if the tenancy was joint the applicant has the right to sue alone for his equal-undivided share of the property.
The law on joinder of an interested party is now settled in Kenya. Joinder as an interested party in Kenya allows a non-litigant with a direct legal interest in a case to participate in proceedings, but it is not an automatic right and requires court discretion. The applicant must demonstrate a clear, proximate interest, potential prejudice if not joined, and the necessity of their presence for a complete resolution of the matter.
The Black’s Law Dictionary, 9th Edition defines a “Necessary Party” as being
“A party who being closely connected to a lawsuit should be included in the case if feasible but whose absence will not require dismissal of proceedings”
The Supreme Court of Kenya in the case of Francis K. Muruatetu and another v. Republic & 5 others (2016) eKLR, set out identifiable key elements for consideration in an application for joinder as an Interested Party. The elements are as follows: -
“a. The Personal interest or stake that the party has in the matter must be set out in the application. The Interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
b. The prejudice to be suffered by the intended Interested Party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.
c. Lastly, a party must, in its application, set out the case and/or submission it intends to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court.”
In Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others [2017] eKLR, Mativo. J. explained when an interested party ought to be enjoined in a proceeding. He stated: -
“A person is legally interested in the proceedings only if he can say that it may lead to a result that will affect him legally that is by curtailing his legal rights. In determining whether or not an applicant has a legal interest in the subject matter of an action sufficient to entitle him to be joined as an interested party the true test lies not so much in an analysis of what are the constituents of the applicant''s rights, but rather in what would be the result on the subject-matter of the action if those rights could be established. It is apparent that a party claiming to be enjoined in proceedings must have an interest in the pending litigation, but the interest must be legal, identifiable or demonstrate a duty”.
In the case of Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others [2014] eKLR the Supreme Court of Kenya held that;
“[22] In determining whether the applicant should be admitted into these proceedings as an Interested Party we are guided by this Court’s Ruling in the Mumo Matemo case where the Court (at paragraphs 14 and 18) held:
“[An] interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause…”
Similarly, in the case of Meme v. Republic, [2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that:
“(i) Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;
(ii) joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;
(iii) joinder to prevent a likely course of proliferated litigation.”
Thus. I do allow the application and order that Rotich Ernest be enjoined as an interested party and to file interested party’s affidavit within 15 days. Costs in the cause.
'