The recent case of Kasera & Another vs Richard  KECA 1025 (KLR) highlights the importance of establishing the correct type of ownership in co-tenancies. In the case, which you can access here, the court examined whether the registered owners of the suit property (the Land) were joint proprietors or proprietors in common, and how the ownership type determines: (1) the rights and responsibilities of the co-owners, and (2) how the Land should be transferred or inherited.
The court observed that the co-tenancy law in Kenya was previously unclear before the 2016 amendments to the Land Registration Act, 2012 (the LRA). The amendments introduced Section 91(2), which now clearly states that 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, they will be presumed to hold the interest as tenants in common in equal shares, unless stated otherwise in any written law.
Before the provision in Section 91(2) of the LRA was codified into law, judicial decisions had expressed the view that co-owners of land registered without any indication of their respective shares should be treated as joint owners rather than owners in common. The courts also held that the presumption of joint tenancy was rebuttable, and the onus or burden of rebutting the presumption was on the party seeking to have the court believe otherwise.
However, a contrary view was expressed by the Environment and Land Court in Moses Bii vs Kericho District Land Registrar & Another  eKLR. The court stated that the LRA did not contemplate a scenario where the register does not indicate whether the land is held jointly or in common, and the fallback position should be to presume that the land is held in common. It further observed that joint proprietorship should only be presumed in the clearest of circumstances, such as where the proprietors are spouses.
The Difference Between the Two Co-Tenancies
Therefore, the amendments to the LRA clarified the law on co-tenancy in Kenya. Despite this, property owners need to understand the distinction between joint ownership and ownership in common and choose the type of ownership that best suits their needs and preferences, to avoid confusion, misunderstandings, and disputes.
In joint tenancy, the right of survivorship applies, meaning that if one joint owner dies, their share of the land automatically passes to the remaining joint owners. The surviving joint owners then become the sole owners of the land. This transfer of ownership happens without the need for probate or court proceedings, which can save time and costs. However, under section 60 of the LRA and Regulation 54 of The Land Registration (General) Regulations, 2017, the remaining joint owners are required to notify the joint owner’s death and apply for removal of the name of the deceased from the register using the Form LRA 38. An original death certificate and a certified copy of it should accompany the notification of death.
On the other hand, in ownership in common, each owner has a distinct and separate share of the land. If one owner dies, their share in the land passes on to their beneficiaries or as dictated in their Will. This means that the transfer of ownership may involve probate or court proceedings, which can be time-consuming and expensive. Additionally, the transfer of ownership can lead to complications if there are multiple beneficiaries or conflicting Wills.
These are important considerations to take into account because the ownership structure reflects the deceased owner’s wishes. Joint ownership conveys the intention of the deceased to leave their share of the land to the surviving joint owner. On the other hand, ownership in common conveys that the deceased intended to leave their share of the land to someone else, as each owner has the right to sell, transfer, or bequeath their share of the land as long as they do so in compliance with the provisions of the land laws.
It is important to carefully consider the type of co-ownership arrangement best suited for your situation and ensure that the title document indicates the type of ownership.