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ELCAllowedNot stated in judgment· [2016] KEELC 1081 (KLR)

Francesa A Momanyi v David P Sanganyi & another [2016] KEELC 1081 (KLR)

Environment and Land Court
22 February 2016
EOE. Obaga
1,035 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's matrimonial land because the wife never consented — such sales without spousal consent are void.

What this practically means

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Executive summary

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The applicant, wife of the second respondent, sought confirmation of interim injunctions restraining the first respondent from fencing off part of Plot No. Waitaluk/Mabonde Block 13/Bikeke/1130, where her matrimonial home stands. The first respondent, who had bought portions of the second respondent's land in bits between 2003 and 2010 and held titles to Plots 1131, 1132 and 1133, claimed he had also bought part of Plot 1130 and relied on agreements allegedly witnessed or signed by the applicant, some said to have been signed on her behalf by the second respondent because she was suffering from a stroke. The applicant asserted that two signatures purporting to be hers were forgeries. The court framed one issue: whether Plot 1130 is matrimonial property which should not be sold without a spouse's consent. Applying section 6(1) of the Matrimonial Property Act, 2013, which includes the matrimonial home and attached property in the definition of matrimonial property, and section 93(4) of the Land Registration Act, the court held that the applicant's consent was necessary and that a purported sale without it is null and void. The forged signatures amounted to pure forgery and could not constitute consent. The applicant was found to have a prima facie case with probability of success. The interim injunctions granted on 22/9/2015 and extended were confirmed to remain in force until hearing and determination of the suit, with costs of the application to the applicant.

Key legal issues

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01

Whether Plot No. 1130 is matrimonial property that could not be sold without the applicant's consent

Holding

Plot 1130, being the matrimonial home and land attached to it, is matrimonial property; the purported sale of part of it without the applicant's consent was null and void.

Reasoning

Section 6(1) of the Matrimonial Property Act, 2013 defines matrimonial property to include the matrimonial home, and the matrimonial home includes attached property. Photographs showed the home stands on Plot 1130. Land attached to the matrimonial home is covered under the definition of matrimonial home, so the applicant's consent was required before the second respondent could sell it to the first respondent. Some agreements bore forged signatures of the applicant, which could not amount to consent.

p. 2

Legal principles established

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  • A spouse's consent is required before the matrimonial home or attached property can be sold, and a purported sale without spousal consent is null and void

Court orders

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  1. 1.The injunction orders granted on 22/9/2015 and subsequently extended are confirmed and shall remain in force until hearing and determination of the suit
  2. 2.The applicant shall have costs of the application

Authorities

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Legislation

  • Matrimonial Property ActSection 6(1)
  • Land Registration ActSection 93(4)
Jurisdiction invoked
Not stated in the judgment (Environment and Land Court; Matrimonial Property Act, 2013 and Land Registration Act invoked)

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, "Francesa A Momanyi v David P Sanganyi & another [2016] KEELC 1081 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1081/eng@2016-02-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.