Key Provisions and Legal Framework on Joint Ownership of Land and its Succession

In Kenya, the Land Act and Land Registration Act govern joint land ownership, with joint tenancy (where ownership passes by survivorship) and tenancy in common (where shares are distinct and divisible) as the main forms. Upon the death of a joint tenant, the property automatically passes to the surviving owner(s) without going through the succession process. 

Here's a more detailed explanation:

Forms of Joint Ownership:

• Joint Tenancy:

• Co-owners have equal, undivided shares.

• The right of survivorship applies, meaning the property automatically passes to the surviving owner(s) upon the death of a joint owner.

• The deceased owner's share doesn't form part of their estate to be shared by beneficiaries.

• Tenancy in Common:

• Co-owners have distinct, divisible shares.

• There is no right of survivorship; the deceased owner's share passes according to their will or the laws of intestacy. 

Key Provisions and Legal Framework:

• Land Registration Act, 2012: Governs land ownership, including joint ownership, and outlines the process for registration. 
• Section 91(2) of the Land Registration Act: Specifies that land may be owned jointly or in common. 
• Section 91(7) of the Land Registration Act: Allows joint tenants to sever their joint ownership by agreement and registration. 
• Land Act, 2012: Provides the legal framework for land tenure, including joint ownership. 
• Law of Succession Act: Guides inheritance and succession matters, including the distribution of property when there is no joint tenancy. 
  

Legal Framework Governing Joint Ownership in Kenya

The Land Registration Act, 2012 governs land ownership in Kenya. Under Section 91(2) of the Act, land may be owned jointly or in common:

• Joint Tenancy – Where co-owners have equal, undivided shares, and the right of survivorship applies.
• Tenancy in Common – Where co-owners have distinct, divisible shares with no right of survivorship.

To have a holistic  understanding of joint tenancy and tenancy in common and their distinct features, please read our previous article titled, Co-owning Property in Kenya: Joint Tenancy vs. Tenancy in Common

 Disputes may arise in either form of ownership when the owners disagree on managing or disposing of the property.

The Land Registration Act, 2012, and its subsidiary legislation, Land Registration (General) Regulations, are the primary legislations governing land ownership and disputes in Kenya. Key provisions relevant to joint ownership disputes include:

• Section 91: Provides for the two co-tenancies, the joint and the tenancy in common, and gives meaning to the incidents they can occur and co-owners’ rights. It also provides for the general presumption where an instrument of transfer of interest between two or more people does not specify the nature of their rights; there shall be a presumption that they hold the interest as tenants in common.
• Section 92: Guarantees the right of each co-tenant to receive a copy of the certificate of that land with an endorsement signed by the Registrar. A designated co-tenant will receive the original title. Allows the court to appoint a manager to oversee the property if co-owners cannot agree on its management.
• Section 93: Provide that where a spouse obtains an interest in the land during the subsistence of the marriage, such property shall be deemed as matrimonial property and will be dealt with under the Matrimonial Property Act ( Cap.152)
• Section 94 entitles any of the tenants in common to make an application for partition to the Registrar with the consent of all the tenants; however, any of the tenants or someone who has a decree for the sale of an undivided share in the land can still make the application without the consent of all the tenants.
• Sections 95 and 96 entitle the Land Registrar to cause the parties to mediate/negotiate and either transfer the share or sell the property and divide the proceeds if the partition would result in less than the minimum acreage limit.
• Section 97 provides that any partition of an undivided share is subject to a charge; there can never be a partition without the lender’s written consent, thus discharging the entire property.

 

Succession and Joint Ownership:

• Right of Survivorship:

In joint tenancy, the property automatically passes to the surviving owner(s) upon the death of a joint owner, regardless of the deceased's will. 

• No Succession Process:

The deceased joint owner's interest does not form part of their estate to be shared by beneficiaries. 

• Registration:

The surviving joint owner needs to present a copy of the death certificate to the relevant authorities (e.g., land registry) to remove the deceased's name from the register. 

• Court Intervention:

In cases of disputes or when a joint tenancy needs to be severed, the court can enforce the sale of the property through public auction or other means, ensuring a fair distribution of the proceeds based on the share of ownership. 

Example:

• If Mboya, Jelagat, and Kimathi jointly own land, each owning 33.3%, and Kimathi dies, Mboya and Jelagat will each own half of Kimathi's share (16.65% each).