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ELCPartially AllowedNot stated in the judgment (Plaint dated 7th July 2017)· [2021] KEELC 1643 (KLR)

Francis Kiarie Kamau & Michael Kamau Wandegwa v Sammy Kimemia Njuguna & Theresa Wairimu Njuguna (Environment & Land Case 650 of 2017) [2021] KEELC 1643 (KLR)

Environment and Land Court
8 October 2021
4,711 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a 2012 land sale needed no spousal consent and ordered the seller's wife's caution removed so the buyers could complete the transfer.

What this practically means

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Executive summary

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The Plaintiffs, Directors of Thika East Park Ltd, sued Sammy Kimemia Njuguna (1st Defendant, registered owner) and his wife Teresia Wairimu (2nd Defendant) seeking removal of a caution lodged by the 2nd Defendant against L.R Kiambu/Gatuanyanga/4891, specific performance of a sale agreement dated 14th April 2012 for 1.6 hectares at Kshs.8.9 million, alternative repayment with 20% compound interest, and general and aggravated damages. The Plaintiffs paid Kshs.6.1 million; the subdivision was done, consent obtained and completion documents issued, but registration failed because of the 2nd Defendant's caution lodged on 4th August 2014, ostensibly to protect her spousal interest in matrimonial property. The 1st Defendant admitted performance but said the contract was frustrated; the 2nd Defendant denied consent and relied on her matrimonial interest. The court framed two issues: whether spousal consent was required, and whether the Plaintiffs were entitled to the orders sought. It held that spousal consent was introduced by Section 79(3) of the Land Act with effect from 2nd May 2012, after the contract was executed, and that the 2nd Defendant's overriding interest would arise only if the property was a matrimonial home - which it was not, as she had lived in the USA for over 20 years and the house on the land was incomplete. The Matrimonial Property Act, 2014 could not apply retrospectively. The sale agreement complied with Section 3(3) of the Law of Contract Act and was valid; specific performance was merited as no hardship would be occasioned. The court allowed the claim, ordered removal of the caution and specific performance, and awarded the Plaintiffs costs with interest. General and aggravated damages were not awarded.

Key legal issues

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01

Whether spousal consent was required for the sale agreement dated 14th April 2012

Holding

No. The Land Act requirement of spousal consent under Section 79(3) came into force on 2nd May 2012, after the agreement was executed; and although a spouse had an overriding beneficial interest if the property was a matrimonial home, the suit property was not a matrimonial home since the 2nd Defendant had lived in the USA for over 20 years and the house on the land was incomplete and uninhabited.

Reasoning

The court applied the transitional position: prior to 2nd May 2012 there was no statutory requirement for spousal consent, following Gladys Wanjiku Waititu and Isha Mohamed Noor. The Matrimonial Property Act, 2014 could not apply retrospectively. A spouse's pre-2012 overriding interest arose only where the property was an occupied matrimonial home. On the evidence, the 2nd Defendant had lived in the USA for about 20 years, the house on the land was incomplete, and only a caretaker lived there, so the property was not a matrimonial home and her caution could not invalidate the contract.

p. 4
02

Whether the sale agreement was a valid enforceable contract capable of supporting specific performance

Holding

Yes. The agreement was in writing, signed by the parties, and contained the parties' names, property description, purchase price and conditions, satisfying Section 3(3) of the Law of Contract Act.

Reasoning

The court perused the sale agreement produced as an exhibit, confirmed it was written and signed, and found it met the formal requirements of Section 3(3). Following Nelson Kivuvani vs Yuda Komora, an agreement containing the parties' names, the property number, purchase price, conditions and obligations amounts to a valid contract. With validity established, and no illegality or hardship to the defendants, specific performance was warranted.

p. 5
03

Whether the Plaintiffs were entitled to specific performance and removal of the caution

Holding

Yes. The contract was valid and not illegal, no severe hardship would befall the 2nd Defendant who does not live on the property, and the only obstacle was the caution founded on an inapplicable spousal-consent objection; the sole recourse was removal of the caution and completion of the transfer.

Reasoning

Specific performance being discretionary, the court weighed defect, illegality and hardship. Spousal consent was not a legal requirement for the 2012 agreement, the 2nd Defendant had lived abroad for 20 years so no hardship would arise, and both sides agreed the parties' obligations had been performed save for the caution. Having held the caution was founded on a requirement that did not apply, the court held the plaintiffs entitled to the orders sought.

p. 5

Legal principles established

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  • The requirement of spousal consent was introduced by Section 79(3) of the Land Act, 2012, which came into force on 2nd May 2012; contracts executed before that date do not fail for want of spousal consent
  • Before the Land Registration Act came into force, the equitable beneficial interest of a spouse in a matrimonial home occupied by such spouse was an overriding interest binding on transferees
  • A contract for the disposition of an interest in land must comply with Section 3(3) of the Law of Contract Act (writing, signatures, attestation) to be enforceable
  • Specific performance is a discretionary equitable remedy, granted on well-laid principles and refused where damages are an adequate alternative or where it would cause severe hardship to the defendant

Court orders

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  1. 1.An order directed to the Land Registrar, Thika Land Registry to remove the Caution registered against the property known as land Reference Number Kiambu/Gatuanyanga/4891, registered by the 2nd Defendant on the 4th August 2014
  2. 2.An order of Specific Performance compelling the Defendants jointly and severally to complete their obligations under the Contract for sale and the subsequent Addendum in respect of the transfer of the 1.6 hectares property being L.R Kiambu/Gatuanyanga/4891
  3. 3.The Plaintiffs shall have costs of the suit together with interest thereon

Authorities

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Legislation

  • Land ActSection 79(3); Section 162
  • Land Registration Act, 2012Section 109
  • Registered Land Act (repealed)Repealed by Section 109 of the Land Registration Act, 2012
  • Matrimonial Property ActComing into force 16th January 2014 (no retrospectivity)
  • Law of Contract Act (referred to as the Contract Act)Section 3(3)
  • Auctioneers ActCap. 526 (proviso to Section 3(3))
  • Civil Procedure ActSection 27

Cases cited (6)

  • Gladys Wanjiku Waititu vs Housing Finance Company Ltd & Another
    (2017) eKLR
  • Barclays Bank of Kenya Ltd vs Attorney General & Another
    (2015) eKLR
  • Mugo Muiru Investments Limited vs E W B & 2 Others
    [2017] eKLR
  • Isha Mohamed Noor vs Kenya Commercial Bank Limited & another
    [2018] eKLR
  • Nelson Kivuvani vs Yuda Komora & Another, Nairobi HCCC No.956 of 1991
  • Reliable Electrical Engineers Ltd vs Mantrac Kenya Limited
    (2006) eKLR
Jurisdiction invoked
Original civil jurisdiction over a claim for specific performance and removal of a caution (contract for sale of land; Land Act, Land Registration Act and Civil Procedure 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, "Francis Kiarie Kamau & Michael Kamau Wandegwa v Sammy Kimemia Njuguna & Theresa Wairimu Njuguna (Environment & Land Case 650 of 2017) [2021] KEELC 1643 (KLR)", Case Analysis (2021). Not stated in the judgment (Plaint dated 7th July 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1643/eng@2021-10-08

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