Lucy Njeri Nduati v Stephen Ngugi Kihara & another [2016] KEELC 660 (KLR)
The bottom line
#A Kenyan court blocked the sale of a family land parcel because the buyer failed to get the owner's wife's specific consent.
What this practically means
#Executive summary
#Key legal issues
#Whether an interlocutory injunction should issue to restrain the defendants from interfering with the suit property
The plaintiff established a prima facie case with a probability of success on the question of spousal consent, and the balance of convenience favours her, so the application was allowed
The marriage was uncontested and the suit property was the matrimonial home. The sale occurred after the Constitution of Kenya, 2010 and the Land Registration Act, 2012 came into force, so Section 93(3) applied, placing a duty on the transferee to inquire into spousal consent. Although there may have been a general family consensus to sell, there was no evidence that consent specific to the sale to the 2nd defendant was sought or given. The plaintiff was also in possession, and eviction would cause her and her children great loss.
Whether spousal consent under Section 93 of the Land Registration Act can be general or must be specific to the transaction
The court's preliminary view, subject to full hearing, is that consent must be specific to the particular transaction
Section 93(3) requires the transferee to inquire whether the spouse has consented to the disposition. The court found no authority analysing the section in depth. It took the preliminary view that a general consensus to sell is not good enough; the complaint was that the plaintiff was unaware of the particular disposition to the 2nd defendant and did not consent to it.
Whether the preliminary objection seeking counsel's disqualification could be entertained
It could not; the issue requires a substantive application with affidavit evidence
The court relied on its own prior decision in Murigu Wanyoike v Dyno Holdings, holding that good reasons backed by evidence on affidavit must be tendered before an advocate is disqualified, so that the advocate and client can address the issues. The plaintiff was at liberty to file a formal application.
Legal principles established
#- Where a spouse holding land in his or her own name undertakes a disposition, the transferee is under a duty to inquire whether the other spouse has consented to the transfer (Section 93(3) Land Registration Act)
- Spousal consent to a disposition of matrimonial property must be specific to the particular transaction; a general consensus to sell is insufficient
- Disqualification of an advocate from acting cannot be raised by way of preliminary objection but requires a substantive application supported by affidavit evidence
Court orders
#- 1.An order of inhibition, inhibiting the registration of any disposition in the register of the land parcel Bahati/Kabatini Block 1/1587 pending the hearing and determination of the suit
- 2.The defendants jointly and/or severally barred from entering into any further sale, lease, charge or other encumbrance over the land parcel Bahati/Kabatini Block 1/1587
- 3.The defendants jointly and/or severally barred from issuing the plaintiff with any notice to vacate, or evicting the plaintiff and her family from the land parcel Bahati/Kabatini Block 1/1587
- 4.The 2nd defendant and/or his employees, assigns or agents, or any person acting under his behest, specifically barred from taking possession of the land parcel Bahati/Kabatini Block 1/1587
- 5.Costs of the application to be costs in the cause
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; application under Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules; suit pleaded as a Matrimonial Cause under the Matrimonial Property Act, 2013 and the Marriage Act, 2014, with Section 93 of the Land Registration Act, 2012 applying
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lucy Njeri Nduati v Stephen Ngugi Kihara & another [2016] KEELC 660 (KLR)", Case Analysis (2016). Environment & Land Case (Bahati/Kabatini Block 1/1587) - plaint filed 10 February 2015 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/660/eng@2016-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.