Cks v Jss & 1 other

The learned Judge correctly held that the Environment and Land Court has jurisdiction over land matters, but failed to take into account Section 93 of the Land Registration Act, which deems property obtained during marriage for co-ownership and use of spouses to be matrimonial property to be dealt with under the Matrimonial Property Act. Since the Judge had found the Kakamega property was acquired during the subsistence of the marriage and had all hallmarks of matrimonial property, the dispute fell within Section 93, conferring jurisdiction on the High Court under the Matrimonial Property Act.

The appellant alleged the sale was done without her consent, but the Deputy Land Registrar confirmed a spousal consent dated 26th April, 2018 signed by the appellant and lodged with the lands office. Under Sections 107(1) and 109 of the Evidence Act, the appellant bore the burden of proving she did not consent, and allegations of fraud or forgery had to be pleaded and proved, ordinarily through forensic examination of the document. She did neither, so the sale to S could not be assailed under Section 12.

The parties were estranged but still married. Section 7 vests ownership according to contribution and provides for division upon divorce or dissolution. The Court endorsed the High Court's reasoning that the policy is to preserve the marital union, so a court ought not divide matrimonial property while parties are still in coverture, though declarations of rights may be made under Section 17 even where no divorce petition is filed.

It was established that the Kakamega property was matrimonial property acquired during the subsistence of the marriage, and the appellant was involved in the business from which the purchase proceeds were drawn. The Court found no justification for payment at current market price given the absence of valuation evidence, and noted the respondent filed no cross-appeal against the half-share-of-proceeds order.