SBM Bank Kenya Limited & another v Khanaka & another (Environment and Land Appeal 6 of 2023) [2025] KEELC 4464 (KLR)
The bottom line
#A Kenyan bank lost its appeal because it charged a man's land without checking it was a matrimonial home or getting his wife's consent.
What this practically means
#Executive summary
#Key legal issues
#Whether spousal overriding interests under section 93(3) of the Land Registration Act defeated the charge
Yes - the 1st respondent proved a customary marriage from 2004 and occupation, giving her overriding interests requiring her spousal consent
The 1st respondent pleaded and proved an earlier Luhya customary marriage in 2004, before the charges of 2015 and 2017. The appellants never challenged that assertion or the existence of the matrimonial home. African customary marriage was recognized before the Marriage Act 2014. Her rights were overriding interests under section 28 of the Land Registration Act, so the charge without her consent was invalid.
Whether the appellants undertook due diligence before registering the charges
No - the bank failed to discharge the onus of proving due diligence
The onus was on the appellants to prove due diligence. The bank's own valuation report dated inspection of 8/4/2017 indicated improvements and that the land was a matrimonial home partly let out. The bank did not avail a pre-loan site visit report or an earlier valuation, did not report the guarantor to police for fraud, and certificates of postage for statutory notices were missing.
Whether the valuation report could be relied upon despite the appellants' challenge
Yes - the appellants never objected to production of the exhibits and the bank did not disown its own valuation report
The record showed no objection to the production of the 1st respondent's exhibits on veracity, authenticity or legality, and the appellants never required the makers to appear. The bank itself commissioned the valuation report and could not disown it; it showed the property was a matrimonial home at inspection.
Legal principles established
#- A lender has a duty to inquire, look for and establish who was on the suit land or had developed it, to rule out the need for spousal consent before registering a charge over land
- Parties are bound by their pleadings and new issues cannot be introduced on appeal without leave
- A first appellate court must rehearse, review and reappraise the record and come up with independent findings on facts and law, mindful the trial court heard and saw the witnesses
Court orders
#- 1.The appeal is dismissed
- 2.The appeal is dismissed with costs to the 1st respondent
- On appeal from
- Magistrates' Court
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over the trial court's judgment of 28/5/2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SBM Bank Kenya Limited & another v Khanaka & another (Environment and Land Appeal 6 of 2023) [2025] KEELC 4464 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4464/eng@2025-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.