We are pleased to announce that Brenda Mathenge Olembo, a distinguished member of our litigation team, successfully represented Mr. Federico Rosa in the case of Federico Rosa versus the Estate of Ruth Wanjiru Mwithia. The Environment and Land Court upheld the doctrine of ius accresendi/ joint tenancy granting full ownership of the suit property to Mr. Rosa.
What is the doctrine of ius accrescendi and why is it important in the Kenyan context?
The doctrine of “ius accrescendi,” also known as the right of survivorship or the right of accrual, originates from Roman law. Under this doctrine, upon the death of one joint owner, their interest in the property automatically passes to the surviving joint owner(s)rather than becoming part of the Deceased’s estate for the purposes of testamentary distribution or intestate succession.
In Kenya, property, both leasehold as well as freehold can be owned individually and or by several people. Where property is owned by more than one person, the ownership by the registered proprietors of the land can either be as a tenancy in common or as a joint tenancy.
Tenancy in common is characterized by several distinct features that differentiate it from joint tenancy.
The first characteristic is individual ownership. Each tenant in common holds an individual, undivided ownership interest in the property. This means that while the property itself is owned collectively, each owner has a specific share that is legally recognized.
The second characteristic is the possibility of owners having unequal shares in the property. Unlike joint tenancies, which require equal ownership, tenancy in common allows for owners to have unequal shares in the property. These shares can be apportioned based on the agreement among the co-owners at the time of purchase or subsequently through agreements.
The third characteristic is separate titles. Each tenant in common can have a separate legal title to their share of the property. This allows for the individual portion of the property to be sold, transferred, or bequeathed independently of the other owners.
The fourth characteristic is that in tenancy in common there is no right to survivorship. One of the key distinctions of a tenancy in common is the absence of the right of survivorship. This means that upon the death of a tenant in common, their share of the property does not transfer to the surviving owners. Instead, it becomes part of the deceased’s estate and is distributed according to their will or the laws of intestate succession.
The fifth characteristic is freedom to dispose interest. Owners are at liberty to dispose of their interest in the property as they see fit during their lifetime. This includes the ability to sell, lease, or mortgage their share without needing consent from the other co-owners, although the practical aspects of selling a shared interest might be complicated.
The sixth characteristic which is similar to joint tenancy is joint possession. Despite the individual ownership of shares, all tenants in common have an equal right to possess and use the entire property. Unless the co-owners have agreed, no individual owner can claim a specific part of the property as their own exclusive domain, regardless of the size of their share. Each co-owner’s interest in the property is therefore separate (in terms of ownership share) but undivided in the sense that the property itself is not physically divided among the co-owners.
On the other hand, the right of survivorship is a defining characteristic for a joint tenancy. This means that when one of the joint tenants dies, their interest in the property does not pass to their heirs or through their will, but instead, it devolves to the remaining joint tenant(s) by fact of the death of a joint tenant.
Joint tenancy can be used as a succession planning tool where a party wishes to avoid lengthy succession causes in respect of his estate. Many married couples opt for registering their properties as joint tenancies to avoid having to file succession suits upon the passing of one of them.
Business partners may also opt to hold property as joint tenants to ensure the continuity of the business upon death of a partner. Section 60 of the Land Registration Act CAP 300 provides for joint tenancy as follows:
If any of the joint tenants of any land, lease or charge dies, the Registrar shall, upon proof of the death, delete the name of the Deceased tenant from the register by registering the death certificate.
In the Rosa case, the Deceased and the Plaintiff jointly owned the suit property. Upon the demise of the Deceased, her Estate claimed the suit property. This culminated in Mr. Rosa filing the case to determine the lawful owner(s) of the property.
The Environment and Land Court followed the definition of a joint tenancy under Section 2 of Kenya’s Land Act which defines it as a form of concurrent ownership of land where two or more persons each possess the land simultaneously and have undivided interest in the land under which upon the death of one owner it is transferred to the surviving owner(s).
In upholding the doctrine of ius accrescendi, the Court, relying on the case of Mukazitoni Josephine v Attorney General (2015) eKLR, placed emphasis on the four unities of joint tenancy namely:
- Unity of interest: The interest of each owner is equal;
- Unity of time: The interest of the owners is acquired at the same time;
- Unity of possession: The owners have the right of survivorship; and
- Unity of title: The document must specify a joint tenancy vesting. If a vesting is not specified, it is presumed to be a tenancy in common.
Upon weighing the facts and the parties’ arguments the Court concluded that none of the four unities had been broken during the lifetime of the deceased. The Estate of the Deceased therefore lacked a basis to claim part ownership of the suit property. The Court ordered the Estate of the Deceased to grant vacant possession to the Plaintiff.
While seemingly appearing as a preferred mode of property ownership in some instances, joint tenancies pose risks. One such risk is the ability of each joint tenant to exercise the power to sever the joint tenancy without the knowledge or consent of the other joint tenant.
Under a joint tenancy each co-owner’s stake in the property must be identical, irrespective of their individual financial contributions to the purchase price or any initial agreement to hold disproportionate shares. This can lead to complexities, especially when one tenant may benefit more from the property than others without an obligation to compensate for such disparity.
The joint tenancy framework is also susceptible to challenges that can affect not just the co-owners but the very essence of the joint tenancy. Legal attempts to mitigate unintended consequences—such as those arising from the separation or divorce of joint tenants, or statutes aiming to address extreme scenarios, like a joint tenant murdering another—introduce a layer of complexity to the ownership structure. These factors, combined with evolving judicial and legislative views on survivorship rights and the four unities, underscore the necessity for potential and current joint tenants to proceed with caution and thorough understanding. The legal landscape surrounding joint tenancies is intricate, with potential implications for the continuity and integrity of the joint tenancy, highlighting the importance of informed decision-making in property co-ownership arrangements.
