The Land Registration Act, 2012 (the Act) provides a legal framework for co-tenancy. This framework stipulates the rights and obligations of co-tenants, including the requirements for disposition, the entitlement to undivided shares, and the consent required for any transfer or dealing with an undivided share. The Act also provides remedies for any aggrieved party.
Co-tenancy is a common form of land ownership in which two or more individuals have an interest in a piece of land. This ownership arrangement can take the form of joint tenancy or tenancy in common. According to Section 91(1) of the Act, co-tenancy refers to the ownership of land by two or more persons, and it includes both joint tenancy and tenancy in common.
When an instrument of transfer of an interest in land is made to two or more individuals and the nature of their rights is not specified, Section 91(2) presumes that they hold the interest as tenants in common in equal shares, unless stated otherwise in any written law. This means that each tenant owns an undivided share of the whole property, which they are free to transfer or deal with, subject to any applicable restrictions some of which are discussed below.
Section 91(3) requires that any instrument made in favour of two or more persons, and the registration giving effect to it, should indicate whether those persons are joint tenants or tenants in common. Additionally, it should specify the share of each tenant if they are tenants in common.
Under Section 91(4), if land is occupied jointly, no tenant is entitled to any separate share in the land. Consequently, any disposition of the land can only be made by all the joint tenants, and on the death of a joint tenant, that tenant’s interest shall vest in the surviving tenant or tenants jointly. Each joint tenant is free to transfer their interest inter vivos to all the other tenants, but any attempt to transfer an interest to any other person shall be void.
Section 91(5) further elaborates that if any land, lease or charge is owned in common, each tenant will be entitled to an undivided share in the whole and on the death of a tenant, the deceased’s share will be treated as part of their estate. This section deals with circumstances where land, leases, or charges are held in common by multiple individuals, often referred to as “co-owners” or “tenants in common.” It specifies that each co-owner has an ownership interest in the entire property, but that interest is divided among all the co-owners. This means that no single co-owner has exclusive ownership over any specific part of the property. In the event of the death of a tenant in common, the deceased’s ownership interest, or share of the property, is treated as part of their estate and is inherited by their heirs, as specified in their will or by the laws of intestacy if there is no will.
Section 91(6) prohibits any tenant in common from dealing with their undivided share in favour of any (third) party, other than another tenant in common, without the consent in writing of the remaining tenants. However, the consent cannot be unreasonably withheld. In exceptional cases, Section 91(8) empowers the Registrar to dispense with the consent if the Registrar considers that the consent cannot be obtained or is being withheld unreasonably. In such a case, the Registrar must note on the register and the instrument the reasons for dispensing with the consent. If a person is aggrieved by the decision of the Registrar, they may apply to the Environment and Land Court for the necessary orders, as provided in Section 91(9).
Joint tenants who are not trustees, as stated in Section 91(7), may execute an instrument signifying that they agree to sever the joint ownership. The severance shall be complete by registration in the prescribed register of the joint tenants and tenants in common.
It is also important to note the judgment rendered in Kasera & another vs Richard (Civil Appeal 52 of 2018)  KECA 1025 (KLR) on 23 September 2022 [access it here]. The Court of Appeal highlighted the importance of understanding transitional provisions in new legislation, as well as the principles of retroactivity and vested legal rights. It also underscored the need to consider the specific facts and circumstances of each case when determining the applicability of laws and regulations. In this decision, the court was considering whether the Land Registration Act, 2012 could be given retroactive effect in determining whether the tenancy in question was a joint tenancy or a tenancy in common, especially if it was likely to affect or interfere with crystallised or vested legal rights.