AND THE TWO SHALL BECOME ONE Joint ownership as a tool in Real Estate Planning


AND THE TWO SHALL BECOME ONE Joint ownership as a tool in Real Estate Planning

  1. Introduction

Engineer Alex Maneno runs a successful engineering firm where he is the sole practitioner. He is the loving husband of Vicky. Vicky is a housewife. They have 2 children, Ivy and Alvin. Alex takes care of all the financial needs of the family and his wife takes care of the family front. They are a testament of a happy family. Then one evening Vicky receives a call from an unfamiliar number. The caller after introducing himself asks if she knows someone by the name Maneno. She answers in the affirmative. Then the caller says Maneno had been involved in a road accident along Mombasa Road and that he was in serious condition. With the help of one of the family friends, Vicky manages to have him transferred to an hospital in Nairobi. Unfortunately, despite all attempts to save him, Alex succumbs to the injuries 5 days later. The family is left with a bill of Kshs 3.5 million after deducting what the insurance company could cover. Though Alex’s bank account had more than 50 million, the bank could not allow  Vicky to access the amount until a confirmed grant of letters of administration or probate was availed.  The family had to fundraise to settle the bill. That was just the beginning of their trouble. Vicky could not access the funds to pay school fees for the children. She had to borrow from friends with the promise that she would refund once the grant was confirmed.

Yet what the fictional Maneno’s went through could have been avoided had Alex made Vicky a joint account holder, with a mandate that either party could sign. In our previous article; 5 ways to put your earthly affairs in order, we introduced joint ownership as one of the ways of estate/succession planning. This is a form of co-ownership where two or more people have equal rights and obligations to the asset they rent or own together until one partner passes away. Though rarely used or understood, joint ownership is one of the most effective tools of estate planning. This can be contrasted from ownership in common or tenancy in common.

Joint ownership, also known as joint tenancy, is closely related to the concept of tenancy in common where two or more holders hold land in different percentages. This means upon each tenant/owner has a distinct, though undivided share in the property which he /she can sell or bequeath to a beneficiary upon death. Joint tenancy and tenancy in common are known in law as co-tenancy.

  • Joint Tenancy and the law

This is a form of ownership where each owner has an undivided share in the property. All owners have equal ownership rights, responsibilities, and benefits as defined in Section 2 of the Land Act as;

Section 2 defines joint tenancy as

“ a form of concurrent ownership of the land where two or more persons each possess the land simultaneously and have individual interests in the land under which upon the death of one owner it is transferred to the surviving owner or owners.”

The other key feature of joint ownership is the right of survivorship. If one owner passes away, his interest automatically passes to the surviving owner without going through succession process. This is because the interest of the deceased owner does not form part of his estate to be shared by the beneficiaries either through testate (will) or intestacy succession. All that the surviving joint owner needs to do is to present a copy of the death certificate to relevant authorities, such as the bank or land’s registry and the name of the deceased owner will be removed. 

Section 49 of the Land Actprovides that:-

 “if one of two or more joint proprietors of any land, lease or charge dies, the registrar shall, on proof of the death, delete the name of the deceased from the register by registration of the death certificate”

Section 60 of the Land Registration Act states that

“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.”

Section 91(2) of the Land Registration Act provides that:-

“Except as otherwise provided in any written law, where the instrument of transfer of an interest of land to two or more persons does not specify the nature of their rights there shall be a presumption that they hold the interest as tenants in common in equal shares.”

The principle of survivorship over jointly owned property operates to exclude the property from the Law of succession and cited  the case of in Re estate of John Njogu Gichobi (deceased) (2018) eKLR  the court held as follows:-

“ my view is that as the objector and the deceased were joint owners, the objector as the surviving joint owner was entitled to acquire ownership without being subjected to the process of intestacy”

Co-tenancy is defined inSection 91 of the Land Registration Act to mean either joint tenancy or tenancy in common. It also explains what happens in respect of each in a way that one can tell whether a title is jointly owned or owned in common as follows:-

  • Except as otherwise provided in this Act, if two or more persons, not forming an association of persons under this Act or any other way which specifies the nature and content of the rights of the persons forming that association, own land together under a right specified by this section, they may be either joint tenants or tenants in common.
  • An instrument made in favour of two or more persons and the registration giving effect to it shall show—
  • whether those persons are joint tenants or tenants in common; and
  • whether those persons are joint tenants or tenants in common; and the share of each tenant, if they are tenants in common.
  • If land is occupied jointly, no tenant is entitled to any separate share in the land and, consequently—
  • dispositions may be made only by all the joint tenants;
  • on the death of a joint tenant, that tenant’s interest shall vest in the surviving tenant or tenants jointly; or
  • each joint tenant may transfer their interest inter vivos to all the other tenants but to no other person, and any attempt to so transfer an interest to any other person shall be void.
  • If any land, lease or charge is owned in common, each tenant shall be entitled to an undivided share in the whole and on the death of a tenant, the deceased’s share shall be treated as part of their estate.
  • No tenant in common shall deal with their undivided share in favour of any person other than another tenant in common, except with the consent in writing, of the remaining tenants, but such consent shall not be unreasonably withheld.
  • Joint tenants, not being trustees, may execute an instrument in the prescribed form signifying that they agree to sever the joining ownership and the severance shall be complete by registration in the prescribed register of the joint tenants and tenants in common.
  • On and after the effective date, except with leave of a court, the only joint tenancy that shall be capable of being created shall be between spouses, and any joint tenancy other than that between spouses that is purported to be created without the leave of a court shall take effect as a tenancy in common.

In Mukazitoni Josephine v Attorney General Republic of Kenya [2015] eKLR, the Court of Appeal held that.

“… in a joint tenancy, the interest of each owner is indeterminable, each owns all and nothing. A joint tenancy cannot be severed unless one of the four unities of title, time, possession or interest is broken. A joint tenant has the right to the entire property or none – since the other joint tenant also has a right to the entire property. This is expressed in latin as totem tenet et nihit tenet, a joint tenant holds everything and nothing (see Re Foley (deceased) Public Trustee -v- Foley & Another (1955) NZLR 702). In Stack -v- Dowden (2007) UKHL 17, the House of Lords expressed itself as follows: “The starting point where there is sole legal ownership (a sole name case) is sole beneficial ownership. The starting point where there is joint legal ownership (a joint name case) is joint beneficial ownership. The onus is upon the person who seeks to show that the beneficial ownership differs from legal ownership. The onus of rebutting the presumption is heavier in joint name cases. The amount of interest (s) would be declared on evidence.”

A joint tenancy cannot pass under the will or intestacy of a joint tenant so long as there is a surviving joint tenant as the right of survivorship takes precedence. The four unities that must be present in a joint tenancy namely:

  1. Unity of Time    – the interests of the joint owners has to vest at the same time.
  2. Unity of Title     – the title of all the joint owners has to be derived from the same instrument.
  3. Unity of Interest – each joint owner has to have an estate of the type and duration.
  4. Unity of Possession – each joint owner has to have the same right to possession of the asset. One co-owner cannot point to any part of the land as his own to the exclusion of the other/s.
  • Can joint tenancy be severed?

Section 91 (7) of the Land Registration Act provides that joint tenants are free to sever the tenancy which severance must be completed by registration.  The parties can only severe joint tenancy by executing an instrument in the prescribed form signifying that they agree to sever the joint ownership. 


“A joint tenancy cannot be severed unless one of the four unities of title, time, possession or interest is broken.  A joint tenant has the right to the entire property or none – since the other joint tenant also has a right to the entire property.   This is expressed in Latin as totem tenet et nihit tenet, a joint tenant holds everything and nothing”.

  • Advantages of joint ownership
  1. Avoidance of succession proceedings

Succession process can take centuries to resolve. Ask the Koinanges.  The Mbiyu Koinange family succession battle has been in court for over 40 years with no end in sight. Joint ownership allows a smooth transition between spouses as there will be no need to go through succession process. This enables the surviving spouse to take full charge of the affairs of the family without the delays and risks associated with the court process. We have many instances where children have turned against their own mothers once the father passes on.

In addition, assets held jointly are not subject to challenges regarding the validity of the deceased’s will as the right of survivorship ensures a direct transfer to the surviving owner(s), regardless of any disputes over the will.

  1. Smooth and easy transmission 

Upon the death of a co-owner of jointly owned property, the surviving owner only has to present the proof of death of the co-owner, for the name of the of the co-owner to be struck out from the title documents.

  1. Creditor Protection

Joint ownership provides protection against creditors as the asset does not form part of the deceased’s estate.  Even during their lifetime, considering that the “interest of each owner is indeterminable”,  the property is not available for attachment by creditors for a debt incurred by one of the owners. By parity of reasoning however, if both owners owe the debt jointly and severally, the property can be attached.

  •  Disadvantages Of Joint Ownership

Joint ownership of property or assets can be a convenient and practical form of estate planning offering benefits as discussed above. However, like any legal arrangement, joint ownership also comes with its share of disadvantages as discussed hereunder;

  1. Loss of Control

Joint ownership, by its nature, requires collaboration and agreement among co-owners on various aspects of the asset’s management. However, differing perspectives, goals, or preferences among the co-owners can often lead to conflicts. These conflicts may arise when deciding how to use the asset, such as whether to rent out a jointly owned property or keep it for personal use, or in determining the maintenance and repair schedule. Furthermore, the decision on when and how to sell or transfer the asset can be a contentious issue, especially if one co-owner wants to liquidate the asset while others prefer to hold onto it. Due to the potential for conflicts and disagreements, joint ownership can ultimately result in loss of control over the asset for individual co-owners.

  1. Risk of disinheriting beneficiaries

Considering that in joint ownership the survivor takes all, there is a risk that beneficiaries, who would otherwise be entitled from the deceased, getting nothing. This is more so in a polygamous setting where the youngest wife warms her way to the man’s heart, and he proceeds to jointly register his prime assets with her. Once he dies, the young wife will then waive the joint title and claim everything for herself thereby, unintentionally disinheriting the other wife and her children.   

What happens in case of simultaneous death of both joint owners? This enigmatic scenario where joint owners meet their demise in close proximity without clear sequence of events casts a shadow of uncertainty over estate planning. In the absence of concrete evidence establishing the precise order of demise, the commorientes rule serves as a cornerstone, providing clarity and certainty in the face of uncertainty.

Commorientes is derived from the Latin ‘commorior’ meaning ‘to die together’. The rule states that where two persons, leaving an estate to one another, die simultaneously, with no indication on who died first, the deaths are presumed to have occurred in order of seniority. It basically means that the elder is presumed to have died first, and then the younger. This rule may however be displaced in cases where the deed providing for joint ownership contains survivorship clause.

A survivorship clause is a provision to be included in the joint ownership agreement which dictates the mode of distribution of jointly owned asset in the event the co-owners pass away simultaneously.

E. Conclusion

Joint ownership of property is most ideal for spouses. This ensures the surviving spouse is not left destitute awaiting to access, for instance, bank accounts. If the bank account is in the name of the man who passes on, the wife cannot access the money without a court order or until the grant is confirmed. If there are any children is school or bills to be paid, and the family does not have alternative source of income, it will suffer in the meantime. However, for joint ownership to achieve the intended purpose, which is to have a smooth transition without the hiccups associated with court succession process, it means the spouses must have bonded in a way that they are indeed one. This gives each spouse the comfort that he /she will take care of the family if you go first.  This is a personal decision which only you can make. Our legal experts will guide you in the process.

Daniel Musyoka, Karen Muthee, & Faith Kinyua