Your Ultimate Guide to Joint and Common Tenancy in Kenya

By admin
October 15, 2025

Your Ultimate Guide to Joint and Common Tenancy in Kenya

By WKA Advocates — Kenya’s Trusted Experts in Property, Real Estate & Conveyancing Law

Buying property in Kenya is one of the most significant investments you can make. However, before signing that sale agreement or registering the title, it’s crucial to understand how ownership will be structured. Whether purchasing a luxury villa in Karen, an apartment in Kilimani, or a family home in Runda, your choice between Joint Tenancy and Tenancy in Common will determine how your property is shared, inherited, or transferred in the future.

At WKA Advocates, we specialize in helping local and international clients navigate Kenya’s property ownership structures with clarity, compliance, and long-term protection in mind. This guide breaks down everything you need to know about joint and common tenancy — from registration to inheritance implications.

1. Understanding Joint Tenancy in Kenya

Joint Tenancy means two or more people own property together, each with equal rights and obligations. The most defining feature of joint tenancy is the Right of Survivorship — when one joint tenant dies, their interest automatically transfers to the surviving co-owner(s).

Core Features

Equal ownership: All owners share equal rights to the entire property.
Right of Survivorship: Property automatically passes to surviving owners.
Unity of Title and Possession: All tenants acquire ownership through the same document and enjoy equal rights to occupy the property.
Simplified succession: Ownership bypasses probate, making inheritance immediate.

Ideal For

Married couples.
Family-owned homes.
Partners seeking automatic transfer of ownership upon death.

WKA Advocates cautions that while joint tenancy simplifies succession, it can complicate estate planning or trust creation if not properly structured under the Law of Succession Act (Cap 160) and Matrimonial Property Act, 2013.

2. Understanding Tenancy in Common in Kenya

Tenancy in Common (TIC) is more flexible. Here, two or more individuals own property together, but each has a defined share. These shares can be equal or unequal, and when one co-owner dies, their share goes to their heirs — not the surviving owners.

Core Features

Defined Shares: Ownership can be split (e.g., 40%-60%).
No Survivorship: Ownership passes to heirs through a will or succession process.
Transfer Flexibility: Each owner can sell, gift, or mortgage their share independently.
Ideal for Investment: Common among business partners or co-investors.

Ideal For

Business ventures or partnerships.
Siblings or friends buying property jointly.
Investors who want individualized estate planning.

At WKA Advocates, our property lawyers draft Tenancy in Common Agreements that clearly define ownership percentages, exit options, and dispute resolution mechanisms to prevent future conflicts.

3. Legal Framework for Co-Ownership in Kenya

Kenya’s co-ownership system is guided by:

The Land Registration Act, 2012 (Section 91)
The Land Act, 2012
The Law of Succession Act (Cap 160)
The Matrimonial Property Act, 2013

These laws provide the legal foundation for both joint tenancy and tenancy in common, ensuring co-owners understand their rights, responsibilities, and inheritance implications.

4. How to Register Joint or Common Tenancy

Step-by-Step Process

Conduct a Land Search: Confirm ownership, encumbrances, and land history.
Draft and Sign the Sale Agreement: Clearly indicate the type of co-ownership.
Prepare the Transfer Instrument (Form LRA 1): Specify “Joint Tenants” or “Tenants in Common.”
Pay Stamp Duty and Valuation Fees.
Registration: Land Registrar records ownership and issues the title reflecting the chosen mode.

At WKA Advocates, we ensure your conveyancing process meets all requirements under the Land Registration Act and that ownership reflects your estate and succession goals.

5. Converting Joint Tenancy to Tenancy in Common

You can convert a joint tenancy into a tenancy in common through a process called severance.
This is typically done when co-owners wish to define their shares or change inheritance outcomes.

Conversion Options

Mutual Agreement: All co-owners agree to sever the joint tenancy.
Notice of Severance: One co-owner formally notifies others in writing.
Court Order: Issued during divorce, dissolution, or dispute.
Registration Update: Filed under Section 91(8) of the Land Registration Act.

6. Tax and Inheritance Implications

Understanding how ownership affects taxation and inheritance is critical.

Joint Tenancy: Simplifies succession since property transfers automatically. However, it can create estate planning challenges if you wish to distribute assets differently.
Tenancy in Common: Offers greater estate control but requires probate.
Foreign Ownership: Non-citizens can only hold land under leasehold (99 years) per Article 65 of the Constitution.

WKA Advocates helps local and international investors design ownership structures that optimize tax exposure, succession, and trust formation.

7. Common Mistakes to Avoid

Not specifying ownership type in transfer documents.
Assuming marriage automatically creates joint tenancy (it does not).
Ignoring estate planning and family trust considerations.
Failing to consult a property lawyer before registration.
Buying jointly without defining shares or exit clauses.

Our firm has represented clients in land disputes, trust formations, and inheritance litigation, ensuring every property transfer is secure, compliant, and future-proof.

8. Why Choose WKA Advocates

WKA Advocates is a Nairobi-based full-service law firm specializing in:

Property and Real Estate Law
Conveyancing and Land Transactions
Immigration and Investment Law
Corporate and ESG Compliance
Intellectual Property and ICT Law

With clients spanning North America, Europe, Africa, and Asia, we help investors, expatriates, and diaspora clients acquire, manage, and protect assets in Kenya with confidence.

📞 Phone: +254 798 035 580
📧 Email: info@wka.co.ke
📍 Address: Valley View Business Park, 6th Floor, Suite No. 35, Parklands, Nairobi
🌐 Website: www.wka.co.ke

FAQs: Joint and Common Tenancy in Kenya

1️⃣ What is the main difference between joint tenancy and tenancy in common?

Joint tenancy includes the right of survivorship, meaning property automatically passes to surviving owners. In tenancy in common, ownership passes to heirs or beneficiaries.

2️⃣ Can joint tenancy be converted to tenancy in common?

Yes. Co-owners can sever joint tenancy by written agreement, court order, or notice filed with the Land Registrar.

3️⃣ Is joint tenancy suitable for married couples in Kenya?

Yes. Many couples choose joint tenancy for simplicity, but it’s important to consider estate planning goals, especially when forming family trusts or wills.

4️⃣ How does tenancy in common affect inheritance?

Each co-owner’s share forms part of their estate and is distributed according to their will or succession law under the Law of Succession Act (Cap 160).

5️⃣ Can foreigners or expatriates register property jointly in Kenya?

Yes. Foreigners can hold property under leasehold titles, and both joint tenancy and tenancy in common structures are recognized, subject to constitutional restrictions.

6️⃣ Does joint tenancy override a will in Kenya?

Yes. Because of the right of survivorship, a joint tenant’s share passes automatically to surviving co-owners and cannot be willed separately.

7️⃣ Which is better for investment properties?

Tenancy in common is more suitable for investors since it allows flexible ownership, defined shares, and separate inheritance rights.

8️⃣ How can WKA Advocates assist with co-ownership matters?

Our property law team provides comprehensive services including drafting co-ownership agreements, property transfer registration, succession planning, and trust establishment for local and international clients.

Conclusion

Choosing between Joint Tenancy and Tenancy in Common can significantly affect your property rights, inheritance, and tax exposure in Kenya. With expert guidance from WKA Advocates, you can make informed decisions that safeguard your investment, protect your family, and ensure compliance with Kenyan land and succession laws.