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ELCPartially AllowedEnvironment & Land Case (Bahati/Kabatini Block 1/1587) - plaint filed 10 February 2015 (number not stated in judgment)· [2016] KEELC 660 (KLR)

Lucy Njeri Nduati v Stephen Ngugi Kihara & another [2016] KEELC 660 (KLR)

Environment and Land Court
20 July 2016
2,560 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiff, married to the 1st defendant under Kikuyu Customary Law since 1993, sued over land parcel Bahati/Kabatini Block 1/1587, purchased during the marriage and occupied as the matrimonial home. She complained that the defendants fraudulently sold the land to the 2nd defendant in 2014 without her knowledge or consent, and sought a declaration of matrimonial home, permanent injunctive relief and, by amended plaint, cancellation of the 2nd defendant's title. Together with the plaint she sought an interlocutory injunction under Order 40 of the Civil Procedure Rules. The 2nd defendant relied on an official search, a family agreement, and the assertion that the plaintiff signed the sale agreement and that her remedy was monetary, not proprietary. The 1st defendant relied on a family meeting of 13 July 2013 at which, he said, all including the plaintiff agreed to sell, with alternative land purchased for her. The plaintiff also raised a preliminary objection to M/s Githui & Company Advocates acting for the defendants, the firm having drawn the sale agreement. Munyao Sila J declined to entertain the objection, holding that disqualification of counsel requires a substantive application supported by affidavit evidence, following his own decision in Murigu Wanyoike v Dyno Holdings. On the merits, applying Section 93(3) of the Land Registration Act, 2012, the court held that a transferee must inquire whether the transferor's spouse has consented, and took the preliminary view that consent must be specific to the particular transaction; a general consensus to sell was not enough. Finding a prima facie case and the balance of convenience favouring the plaintiff, the court granted an inhibition against registration of any disposition, barred further dealings and eviction, and specifically barred the 2nd defendant from taking possession, with costs in the cause.

Key legal issues

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01

Whether an interlocutory injunction should issue to restrain the defendants from interfering with the suit property

Holding

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

Reasoning

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.

p. 4
02

Whether spousal consent under Section 93 of the Land Registration Act can be general or must be specific to the transaction

Holding

The court's preliminary view, subject to full hearing, is that consent must be specific to the particular transaction

Reasoning

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.

p. 4
03

Whether the preliminary objection seeking counsel's disqualification could be entertained

Holding

It could not; the issue requires a substantive application with affidavit evidence

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 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. 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. 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. 5.Costs of the application to be costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3
  • Matrimonial Property Act2013
  • Marriage Act2014
  • Constitution of Kenya2010
  • Land Act2012
  • Land Registration ActSection 93

Cases cited (1)

  • Murigu Wanyoike vs Dyno Holdings
    Eldoret E&L Case No. 279 of 2013 (ruling of 7 November 2013)
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.