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ELCDismissedNot stated in the judgment (Environment and Land Court suit filed 27th January 2015)· [2017] KEELC 2729 (KLR)

Pauline Mukuhi Ng’ang’a (Suing as the personal representative of the estate of the late Joseph Karungu Ndinika) v John Karinge Ndinika & 2 others [2017] KEELC 2729 (KLR)

Environment and Land Court
28 April 2017
SOS. Okong'o
1,065 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan widow's bid to block a bank from selling her late husband's charged property failed because spousal consent wasn't legally required when the charge was registered in 2012.

What this practically means

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Executive summary

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The Plaintiff, widow of the late Joseph Karungu Ndinika, sued the 1st Defendant (the deceased's brother), the 2nd Defendant (a bank) and the 3rd Defendant (a woman said to have married the deceased during the Plaintiff's separation from him) concerning LR No. Ruiru/Kiu/Block 3/189, the matrimonial home. The deceased charged the property to the 2nd Defendant on 10th January 2012 to secure up to Kshs.2,500,000/- advanced to the 1st Defendant; the charge was registered on 25th January 2012 and remained outstanding at the deceased's death on 12th October 2013. By a Notice of Motion dated 26th January 2015, the Plaintiff sought a temporary injunction restraining the sale or alienation of the property and the 3rd Defendant's occupation, on the ground that the charge was executed without her spousal consent contrary to the Land Registration Act, 2012, and that the 3rd Defendant was a trespasser. All Defendants opposed, contending that no spousal consent was required for a charge registered in January 2012. Although the Plaintiff later amended the plaint to allege that the bank's rescheduling of the loan discharged the charge, she did not amend the application, which remained anchored on want of spousal consent. The court held that the Plaintiff failed to establish a prima facie case: no spousal consent was required at the material time, there was no evidence the loan terms were varied, and the 3rd Defendant, having entered with the registered owner's consent, was not a trespasser. The application was dismissed with costs to the Defendants on 28th April 2017.

Key legal issues

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01

Whether a prima facie case was established for a temporary injunction based on want of spousal consent to the charge

Holding

No prima facie case was established; no spousal consent was required for the charge registered in January 2012

Reasoning

The only ground in the amended application was want of spousal consent. The court found the Plaintiff adduced no material showing consent was required at the material time, and agreed with the Defendants that none was required for a charge registered on 25th January 2012. Having failed on the prima facie case limb, the court found it unnecessary to consider irreparable injury or the balance of convenience.

p. 2
02

Whether the alleged rescheduling of the 1st Defendant's loan discharged the charge

Holding

No; there was no evidence of variation of the loan terms

Reasoning

The Plaintiff's new claim (introduced only in the amended plaint, not in the application) was that the 2nd Defendant extended the repayment period without the deceased's consent, discharging the guarantee and charge. The court held there was no evidence of variation; mere non-repayment within 36 months did not prove the terms were varied.

p. 2
03

Whether the 3rd Defendant was a trespasser on the suit property

Holding

No; entry was with the consent of the then registered owner, and the possible invalidity of her marriage did not make her a trespasser

Reasoning

The Plaintiff produced no evidence that the 3rd Defendant was a trespasser. The 3rd Defendant contended she lived on the property with the deceased as his wife until his death. The court held that even if the marriage were invalid, that alone would not render her a trespasser since she entered with the owner's consent.

p. 2

Legal principles established

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  • Spousal consent was not required to charge a matrimonial property where the charge was registered on 25th January 2012, before the spousal-consent provisions took effect
  • Non-repayment of a loan within the stipulated period is not, by itself, proof that the lender varied the terms of the loan
  • A person who enters land with the consent of the then registered owner is not a trespasser merely because her marriage to the owner may be invalid

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 26th January 2015 is dismissed
  2. 2.Costs of the application awarded to the Defendants

Authorities

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Legislation

  • Land Registration Actspousal consent provisions (not specifically numbered in the judgment)
Jurisdiction invoked
First-instance suit before the Environment and Land Court; specific constitutional/statutory basis not stated in the judgment (Land Registration Act, 2012 invoked as to spousal consent)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Pauline Mukuhi Ng’ang’a (Suing as the personal representative of the estate of the late Joseph Karungu Ndinika) v John Karinge Ndinika & 2 others [2017] KEELC 2729 (KLR)", Case Analysis (2017). Not stated in the judgment (Environment and Land Court suit filed 27th January 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2729/eng@2017-04-28

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