Angela Syokwaa Kiema v Jackson Kiema Kivuva & 2 others [2019] KEELC 2629 (KLR)
The bottom line
#A wife lost her challenge to her husband's 2010 land sale because Kenyan laws requiring spousal consent only apply to sales made after 2012.
What this practically means
#Executive summary
#Key legal issues
#Whether spousal consent was required for the 2010 sale and transfer of the suit property
No spousal consent was required because the sale predated the Land Registration Act, 2012 and the Matrimonial Property Act, 2013; the applicable law was the repealed Registered Land Act, Cap 300, which did not provide for spousal consent
The sale took place in 2010 while the Land Registration Act No. 3 of 2012 and Matrimonial Property Act No. 49 of 2013 were enacted later. Following P.N.N vs Z.W.N [2017] eKLR, the court applied the repealed Registered Land Act, Cap 300, which lacked any spousal consent requirement. The court reasoned the statutes are prima facie prospective, so they could not govern the 2010 transaction. Consequently, the 3rd Defendant's registry could not be faulted for not enquiring about spousal consent.
Whether the suit property was the matrimonial home or matrimonial property of the Plaintiff and the 1st Defendant
The property was not a matrimonial home: the Plaintiff gave no evidence of contribution to its purchase or re-purchase, did not rebut evidence of separation by 1983, and there was evidence she was to be moved to Makindu
Although the Plaintiff claimed she and the 1st Defendant developed the land, there was no evidence the demolished structures were permanent buildings. The Plaintiff was silent on her contribution to the 1971 purchase, appeared not to oppose the sale to the 1st Defendant's uncle, and gave no evidence of contributing to the 1983 re-purchase. She did not rebut the 1st Defendant's evidence of separation before the 1983 purchase.
Whether the Plaintiff proved her claim against all three defendants
The Plaintiff failed to prove her case on a balance of probabilities and her suit was dismissed with costs
Having found no spousal consent requirement applied and no matrimonial home established, the court held the Plaintiff had no cause of action against the three defendants. She also failed to prove her pleaded allegation of collusion against the 3rd Defendant's officers, admitting in cross-examination that she never alluded to such collusion.
Legal principles established
#- Where a written law repeals another in whole or in part, the repeal does not affect rights, obligations or legal proceedings acquired or commenced under the repealed law unless a contrary intention appears
- The general rule is that statutes are prima facie prospective and retrospective effect is not given unless by express words or necessary implication
- A sale of land effected in 2010, before the enactment of the Land Registration Act, 2012 and the Matrimonial Property Act, 2013, was governed by the repealed Registered Land Act, which did not require spousal consent
Court orders
#- 1.The Plaintiff's suit against the three defendants is dismissed
- 2.Costs of the suit awarded to the Defendants
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to land parcel No. 389 Muthingiini Settlement Scheme
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Angela Syokwaa Kiema v Jackson Kiema Kivuva & 2 others [2019] KEELC 2629 (KLR)", Case Analysis (2019). E.L.C. Suit No. 71 of 2017 (Formerly Machakos ELC No. 89 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2629/eng@2019-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.