Court-Ordered Partition and Sale of Co-Owned Property in Kenya

When two or more people hold title to the same parcel of land in Kenya, whether as joint tenants, as tenants in common, or as beneficiaries who inherited land jointly, disagreements over what to do with the property are common. One co-owner may want to sell, another may want to develop, and a third may want to keep the land as it is. Where the co-owners cannot agree, the Land Registration Act, 2012 gives a co-owner two routes out of the deadlock: an application to the Land Registrar for partition, or, where the land cannot practically be divided, an application to the Environment and Land Court for an order that it be sold and the proceeds shared. This article explains how both routes work.

Joint Tenancy and Tenancy in Common

Section 91 of the Land Registration Act defines a co-tenancy as ownership of land by two or more persons, recognising two forms: joint tenancy and tenancy in common. Under a joint tenancy, the co-owners hold the whole property together with no separate, identifiable share; when one joint tenant dies, the interest passes automatically to the survivors, not by will or intestacy. Under a tenancy in common, each co-owner holds an identifiable, undivided share that can be sold, charged, or bequeathed independently of the others.

Where a transfer instrument does not state which form applies, section 91 presumes the co-owners hold as tenants in common in equal shares. This matters because most partition and sale disputes involve tenants in common, since a joint tenant cannot deal with the property separately while the joint tenancy subsists. Each co-tenant is entitled under section 92 to a copy of the certificate of title, and the register itself shows the co-ownership.

Applying to the Registrar for Partition

Section 94 of the Land Registration Act sets out how tenants in common can divide co-owned land into separate parcels, each held individually. Where all agree, any one of them may apply to the Land Registrar for partition, attaching the agreed subdivision. Where agreement is not possible, the section also allows one or more to apply without the others’ consent, but the Registrar does not grant such an application automatically. The Registrar weighs the hardship that partition, or refusing it, would cause individual co-owners, the effect on the beneficial use and development of the land, and whether a spouse or dependants would be rendered homeless. Where these tests, and any conditions imposed, such as planning approvals for the subdivision, are satisfied, an order for partition is made and new titles are issued for the resulting parcels.

A section 94 application works well where the land is large enough, and suitably located, to divide into workable, useful portions, for example agricultural land or a large residential plot. It works less well for a small urban plot with one house on it, or land that would lose most of its value if split up.

When Partition Is Not Practical: Sale Under Section 96

Section 96 of the Land Registration Act deals with the situation where partition is not realistic, either because the land is physically incapable of being divided, such as a single semi-detached house, a small commercial plot, or a flat in an apartment block, or because dividing it would defeat the purpose for which it is held, or adversely affect its proper use or value. Here, a tenant in common applies not to the Registrar but to the court for an order that the land be sold, with the proceeds distributed among the co-owners according to their shares.

Because this is a court process rather than a registry process, it is commenced as a suit in the Environment and Land Court, which under section 13 of the Environment and Land Court Act, 2011 has jurisdiction over disputes relating to land title, tenure and land administration, including disputes between co-owners. The court can direct that the sale proceed by public auction or by any other suitable method, such as a private treaty sale through an agent, and it can give directions on the reserve price, who conducts the sale, and how the proceeds are applied, including deductions for a co-owner who has paid outgoings such as rates or a mortgage on behalf of the others.

A court will generally expect a claimant to show that partition has been attempted, or is genuinely not feasible, before granting an order for sale, since sale ends the co-ownership entirely rather than reorganising it. A surveyor’s or valuer’s report on whether the land can be usefully subdivided is often decisive.

Practical Issues That Complicate These Disputes

Several recurring issues shape how these cases are argued. Where the land is family land inherited under the Law of Succession Act, the co-owners are often siblings or extended family, and disputes can be entangled with unresolved succession issues, occupation by one branch of the family, or informal understandings never reduced to writing. A co-owner who has occupied and developed part of the land, for example by building a house on one corner, will usually argue for a partition recognising the value of that improvement rather than an equal split by area. A caution or restriction registered against the title to protect a claim needs to be addressed before partition or sale can be registered. Boundary uncertainty is also common on older, informally surveyed parcels, and a partition plan will usually need a licensed surveyor to establish beacons matching what is agreed or ordered.

Because both routes, partition and sale, ultimately depend on the Land Registrar’s or the court’s assessment of what is fair and workable, the strength of a co-owner’s position depends heavily on preparation: clear proof of the share owned, a credible subdivision or valuation report, and evidence of any contributions or improvements made to the property.