FKN v JWM, George Kariuki Muriithi & County Land Registrar Thika [2019] KEELC 4421 (KLR)
The bottom line
#A Kenyan court cancelled a land sale made without the husband's consent, ruling that 20 years of cohabitation created a legally binding marriage.
What this practically means
#Executive summary
#Key legal issues
#Whether a presumption of marriage arose from the parties' cohabitation
The parties were married by presumption of marriage at the material times, notwithstanding the absence of proof of a customary marriage ceremony.
The plaintiff did not tender evidence of a customary marriage ceremony, but the parties cohabited for 20 years, shared a matrimonial home, had two children, and held themselves out as husband and wife. The 1st defendant's own divorce petition corroborated that they considered themselves married. Applying the Court of Appeal's guidance in Joseph Gitau Githongo v Victoria Mwihaki Munya, long cohabitation raises a presumption of marriage rebuttable only by cogent evidence, which was not adduced.
Whether the two parcels were matrimonial property
Both parcels were matrimonial property: the matrimonial home plot directly, and the suit property either as an extension of the matrimonial home or as property acquired during the marriage.
Under section 6 of the Matrimonial Property Act, 2013 matrimonial property includes the matrimonial home and any other immovable property acquired during the subsistence of the marriage. Plot No. […] was occupied as the family home. The suit property was used for dairy and poultry farming but, given its proximity to the matrimonial home, the court treated it as an extension of the matrimonial home; alternatively, it qualified as matrimonial property simply because it was acquired during the marriage.
Whether spousal consent was required for the sale
The 1st defendant required the plaintiff's consent to sell and transfer the suit property.
The marriage was still subsisting at the time of the sale since the divorce petition had not been determined. Section 12(1) of the Matrimonial Property Act, 2013 prohibits alienation of matrimonial property without the consent of both spouses, and section 93 of the Land Act, 2012 obliges a purchaser to inquire into spousal consent and renders a non-consented disposition voidable at the non-consenting spouse's option.
Whether the sale and transfer were fraudulent and illegal
The sale and transfer were irregular, illegal and fraudulent.
The transaction breached section 12(1) of the Matrimonial Property Act and section 93(4) of the Land Act for want of spousal consent. The paper trail was suspicious: two agreements five months apart with a purported appreciation of over 50% in value; the Land Control Board consent predated the second agreement; the consideration declared in the consent letter (Kshs.1,800,000/-) differed from that allegedly paid (Kshs.3,500,000/-), suggesting an intention to defraud the Revenue Authority of stamp duty.
Whether the 2nd defendant was a bona fide purchaser for value without notice
The 2nd defendant failed to prove the defence of innocent purchaser for value without notice.
He bought from a non-owner (Antony Karanja Kariuki) rather than the registered owner; he was negligent in due diligence, never asking the registered owner about her marital status despite meeting her; he found the plaintiff's cow sheds, cattle and poultry on the land; and it was unclear how much he actually paid, given the discrepancy between the declared and alleged consideration. In any event, the plaintiff's interest was a legal interest which the doctrine could not defeat.
Whether the plaintiff was entitled to the reliefs sought
The plaintiff proved his case on a balance of probabilities and was entitled to prayers (a), (b) and (c) of the plaint, but not prayer (d).
The suit property's sale was void for want of spousal consent and tainted by fraud, so the declaration of nullity, cancellation of the register entry and title deed, and injunction against the 2nd defendant followed. Prayer (d), seeking an injunction over Plot No. 2327, was unnecessary because that plot was jointly registered and could not be alienated without the plaintiff.
Legal principles established
#- Long cohabitation as man and wife gives rise to a presumption of marriage which only cogent evidence to the contrary can rebut.
- An estate or interest in matrimonial property cannot be alienated during the subsistence of a marriage without the consent of both spouses.
- A disposition of land held by a spouse without the consent of the other spouse is voidable at the option of the non-consenting spouse.
- The protection of the bona fide purchaser without notice doctrine applies only against equitable interests, not against legal interests; the onus of proving the defence lies on the person relying on it.
- An intending purchaser of land registered in the name of one spouse is obliged to inquire whether the other spouse has consented to the sale or transfer.
Court orders
#- 1.Judgment entered for the plaintiff against the defendants in terms of prayers (a), (b) and (c) of the plaint dated 8th December, 2015 (declaration that the sale and transfer of the suit property was null and void for lack of spousal consent; cancellation of the fraudulent register entry and the title deed issued to the 2nd defendant on 14th October, 2015; and permanent injunction against the 2nd defendant).
- 2.The plaintiff and the 1st defendant at liberty to institute appropriate proceedings in the High Court for determination of their respective shares or interests in Thika Municipality/Block 20/2327 (Ngoiwa) and Thika Municipality/Block 20/2328 (Ngoiwa) and the division thereof.
- 3.The 1st and 2nd defendants' counter-claims against the plaintiff dismissed.
- 4.Each party to bear its own costs of the suit and the counter-claims.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land within Thika Municipality (claim founded on the Matrimonial Property Act, 2013 and the Land Act, 2012)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "FKN v JWM, George Kariuki Muriithi & County Land Registrar Thika [2019] KEELC 4421 (KLR)", Case Analysis (2019). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4421/eng@2019-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.