Elyjoy Kageni v Bank of Africa (K) Ltd, Muga Auctioneers and General Merchants, United Brothers Camps Ltd & Humphrey Mbabu Mbaka

of the suit land contending she was the wife of the 4th respondent and that he took a loan from Page 2 of 21

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the 1st respondent to fund his company, the 3rd respondent, and charged the suit land without her consent. The 2 nd respondent was the auctioneer who had given the necessary notices for the sale of the suit land on the instructions of the 1st respondent. The appellant sought judgment against them jointly and severally as follows: a. A declaration that the intended sale by public auction of land reference no. Chuka Township/39 is unlawful, irregular, unprocedural and illegal and thus the same be ordered stopped. b. A declaration that the charge on Chuka Township/39 between the 1st, 3rd and 4th respondents is void and of no effect in terms of the Land Act 2012. c. An order of permanent injunction restraining the respondents by themselves, their agents, servants, employees and/or assignees or whomsoever acting on the respondents’ behalf from selling, advertising, alienating, disposing of or in any other manner whatsoever from dealing with appellant’s matrimonial home comprised in L.R No. Chuka Township/39. d. The costs of the suit. e. Any further or better relief thus honourable court may deem fit to grant.” 2. The appellant’s case was that on or about 29 th July 2015 she learnt about the sale of their matrimonial home; the suit land, in an advertisement in the papers. She confronted the 4th respondent who refused to talk to her. Worried that her matrimonial home was in danger of being sold she travelled to Meru and talked to the 1 st respondent’s staff who informed Page 3 of 21

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her Page 4 of 21

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that the suit land had been charged to secure a loan and unless the same was repaid they could not help her in any way. The appellant’s argument was that she was neither consulted nor her consent sought in accordance with section 79 (3) of the Land Act, 2012 hence her plea that the said charge was a nullity. The appellant contended that the respondents had all acted against the provisions of the Land Act 2012, Land Registration Act 2012 and the Banking Act and had acted in bad faith as they failed to consider the interest of the occupants of the suit premises. 3. Together with the plaint, the appellant filed an application under certificate of urgency and sought for temporary injunction against the 1st and 2nd respondents, their agents, servants and/or employees or whomsoever acting on their behalf or instructions from selling, advertising for sale or in any other manner whatsoever from dealing with the suit land. In the ruling of the trial court delivered on 16 th March 2017 the learned Judge dismissed the application. 4. The respondents entered appearance but only the 1 st respondent filed its defence, dated 31 st August 2017. The 1st respondent’s case was that the 3rd respondent through its representatives, the 4th respondent and one Lucyline Kanyua Mutindwa (Lucyline) approached the 1 st respondent’s bank requesting for banking facilities amounting to Kshs.20,600,000/-. The same was issued to them through a letter dated 11th May, 2012 which they accepted by Page 5 of 21

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executing Page 6 of 21

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the same. The two represented themselves as husband and wife and all indicators showed that the 3 rd respondent was a family company. The 3rd respondent and its directors the 4 th respondent and Lucyline provided the following as securities; a first legal charge over the suit premises registered in the name of the 4th respondent for the sum of Kshs.20,600,000/-, personal guarantees and indemnities for Kshs.20,600,000/by the 4th respondent and Lucyline, and Keyman Insurance over the life of the 4th respondent for Kshs.20,600,000/-. 5. Prior to, during and after the preparation and execution of the charge dated 7th August, 2012 the 4th respondent and Lucyline confirmed their relationship as husband and wife and as persons residing on the suit premises. Furthermore, Lucyline expressly and unreservedly gave spousal consent for the 4th respondent to charge the suit land to the 1 st respondent, to secure the facilities granted to the 3 rd respondent. Under the charge, the 3 rd and 4th respondents covenanted that either or both of them would pay all the monies, obligations and liabilities secured by the charge on demand. By a Deed of Guarantee and Indemnity dated 29 th July, 2012 the 4th respondent and Lucyline, inter alia, guaranteed performance by the 3rd respondent of its obligations in relation to the financial facilities granted by the 1st respondent. 6. In August 2013 it became apparent that the 3rd respondent had not been performing its obligations in relation to the Page 7 of 21

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financial Page 8 of 21

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facilities granted, consequently, its loan account fell into arrears. By two letters dated 1st August, 2013 the 1st respondent notified the 4th respondent and Lucyline of the change of the 3rd respondent’s loan account from performing to non-performing status. 7. Sometime in September 2013 the 3rd respondent through its representative, the 4th respondent and Lucyline approached the 1st respondent for purposes of reconstructing the financial facilities, and by the letter dated 26 th September 2013, the 1st respondent agreed to reconstruct the loan. The 3rd respondent executed the letter with the 1st respondent’s standard terms and conditions applicable to all banking facilities. The 3rd respondent agreed to provide, in addition to the existing securities, personal guarantees and indemnities for Kshs.25,700,000/- issued by the 4th respondent and Lucyline. 8. The 3rd respondent again defaulted in meeting its obligations and the 1st respondent issued three separate demand letters dated 9th October 2014, 21st November 2014 and 11th December 2014 to the 3rd respondent, through its directors, the 4th respondent and Lucyline. The 3 rd respondent failed to comply with the demands. Accordingly, the 1 st respondent was forced to exercise its right of chargor in the following manner: “Through its advocate Coulson Harney Advocates, it issued a statutory notice dated Page 9 of 21

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3rd February 2015 to the 4th respondent and copied to the 3rd respondent Page 10 of 21

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in accordance with section 90 of the Land Act and sent it to the recipients by way of registered post; Following the expiry of the statutory notice, the 1st respondent decided that it would exercise its statutory power of sale in relation to the suit premises, in accordance with section 96 of the Land Act 2012, and through its advocate issued a notice to sell dated 21 st May, 2015 to the 4th respondent and copied the 3rd respondent and Lucyline; Following the expiry of the notice to sell, the 1st respondent instructed the 2nd respondent to issue the requisite statutory notice and advertisement, and sell the suit premises by public auction.” 9. The 1st respondent case was that as at amount owed to the 1st respondent 7th July, 2015 the was a sum of Kshs.38,222,227.94 which continued to accrue interest. 10. The 1st respondent averred that it had never heard of, encountered or interacted with the appellant in relation to the suit land or any of the matters therein, and averred that the only spouse of the 4th respondent that was known to it was Lucyline. In view of the case, the 1 st respondent claimed that the charge dated 7th August 2012 was valid and complied with all the laws applicable in Kenya; that it was entitled to exercise its statutory power of sale in relation to the suit land, had complied with all statutory requirement for exercise of the power to sell; that the 4th respondent’s spouse, who was also residing on the suit premises, Lucyline, had been served with a copy of a notice to sell as required Page 11 of 21

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by section 96 of the Land Act, Page 12 of 21

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2012; and, the appellant was not a spouse of the 4th respondent, and that she did not reside on the suit premises. 11. In conclusion, the 1st respondent contended that the suit was generally a ploy to delay the 1st respondent’s right to recover the sums owed to it pursuant to the charge. 12. In response to the 1st respondent’s defence, the appellant filed her reply dated 27th September, 2017 and denied the averments by the 1st respondent and reiterated her case as in her plaint. 13. The matter proceeded by way of viva voce evidence. The appellant testified that she was the wife of the 4 th respondent and that she got married to him in the year 1992 under Meru Customary Law, and that they were blessed with one child. She also testified that one, Lucyline Kanyua was the 4th respondent’s second wife. She stated that the 4 th respondent was a businessman, but that she was not aware of the 3rd respondent company and could not tell whether the same was owned by her husband. She testified that the 4 th respondent had a cattle business which was situated in the suit land, and that was where their house was. 14. The appellant testified that when the loan was being taken, she saw people but was not aware of what was happening. That later she came to know of the 1 st respondent’s bank, through the notice from the auctioneers, the 2nd respondent. She stated that she was not aware that the 4 th respondent Page 13 of 21

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had taken any loan Page 14 of 21

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from the 1st respondent and had not repaid it until the notice. That the 4th respondent told her that he owed the 1st respondent bank money and the money was advanced to him as he wanted to enlarge his wholesale business. 15. The appellant admitted that she had no certificate that proved that she was married to the 4 th respondent, but that she had the birth certificate of their son David Mwema that showed she was the mother and the 4 th respondent the father. She also confirmed that she did not take up the 4 th respondent’s name. 16. The appellant called her father, Festus Mutegi M’Rithaa as PW2. Her testimony was her daughter started living with the 4th respondent in the year 1993, and that thereafter they got married under Meru Customary Law and dowry payment begun to be made on 9th October 1994. 17. The appellant next witness was, Dunstan Mbaka Mugera, PW3 and father to the 4th respondent. He testified that the appellant was married to his son. He also testified that one Lucyline Kanyua was also his son’s wife having been married to him in the year 2007 under the Meru Customary Law. He further testified that the 4th respondent had three children, each with different mothers. 18. The 1st respondent’s evidence was given by its Recovery Officer, Samuel Irungu, DW1. He reiterated the 1st respondent’s case as per its pleading, which we have Page 15 of 21

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enumerated herein above. He Page 16 of 21

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stated that the appellant did not sign any of the documents connected to the loan, including the charge and spousal consent, the latter having been signed by Lucyline, the 4 th respondent’s wife. Further, that the notification of sale was served upon the 4th respondent and his wife Lucyline, and that they had never disputed service and hence, the notification of sale was valid. 19. After hearing the parties, considering the evidence on record and the submissions, Njoroge, J. in his judgment dated 27 th June 2018 identified the main issue for determination in the suit as whether a second spousal consent was necessary before the suit premises were charged to the 1st respondent. The Judge posited that the mere fact that a woman has a child with a man does not make her a spouse of the baby’s father. He noted that the evidence of the appellant’s mother and that of the 4th respondent’s father did not persuade him that the appellant was the 4th respondent’s wife. That moreover, the appellant’s father was truthful enough to admit that what she testified in court was what was told to her by the appellant. The Judge found that there was no evidence of co-habiting on the charged property, and noted the appellant appeared not to know what the 4 th respondent’s business was. He also noted that under section 96 of the Land Act the marriage between the appellant and the 4th respondent should have been registered for a period of three years before the property was charged for a Page 17 of 21

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presumption of marriage to be made. The Judge found that there were Page 18 of 21

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inconsistencies in the evidence proffered by the appellant, her mother and the 4th respondent’s father. 20. Regarding whether it was necessary to have a second spousal consent for a charge to be valid Judge, quoting section 79(3) of the Land Act, stated that “all such person” as referred to in the section meant the chargor and ‘any spouse’. He observed that the 4 th respondent and Lucyline, were a spouse and were living in the suit premises, a fact the appellant did not controvert. He noted that the 4 th respondent and Lucyline signed the charge document in that capacity. In his view, even though he did not find that the appellant was a spouse of the 4th respondent at the time the charge was consummated, it was his finding that there was no need for a second spousal consent. He posited that had the legislature intended that “all” spouses should give their consent, the legislature should have specifically and unequivocally stated “ALL” instead of “ANY” under the relevant section. The Judge found that the appellant had not proved her case. 21. The Judge found it not satisfactory that the original loan amount of Kshs,20,600,000/- could have ballooned to Kshs.57,175,934.77/- by 1st June 2017. 22. In conclusion Njoroge, J. found that the suit lacked merit and dismissed it with costs to the 1st respondent. Page 19 of 21

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23. Aggrieved and dissatisfied with the said judgment the appellant preferred an appeal to this Court as evinced in the notice of appeal dated 5th July, 2018 and filed on even date. In the memorandum of appeal dated 12th October 2018 the appellant faults the learned Judge of erring in his judgment on the following grounds: 1. He erred in law and in fact in that he failed to consider or sufficiently consider the evidence placed before him; 2. That the judgment is against the weight of evidence; 3. He erred in law and in fact in that he considered extraneous matters in his judgment. 4. That the interpretation of the law applicable in the case was wrong and bad in law. 5. That he erred in law and fact in that he gave improper, narrow and wrong interpretation of the land law placed before him. 6. That the learned judge erred in law and fact in that he misconstrued and misinterpreted the provisions of the Land Act and Land Registration Act.” 24. When the appeal was called for hearing through this Court’s virtual platform on 24th March, 2025 there was no appearance of any of the parties. However, we noted that the appellant filed her written submissions which we proceeded to consider. 25. In her submissions, the appellant argues that the trial court erred in finding that the intended auction of the suit land Page 20 of 21

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was lawful. Her primary contention is that the property constitutes her matrimonial home and therefore any charge created over it Page 21 of 21

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without her consent is invalid. She maintains that despite being the lawful first wife of the 4th respondent, who resides with their son on the property, she was neither consulted nor did she execute any document consenting to its use as a loan security. To support this, she relies heavily on section 79(3) of the Land Act which mandatorily requires spousal execution or express assent to any charge over a matrimonial home, failing which such charge is void. In addition, she cites section 93 (3)(a) of the Land Registration Act which obligates lenders to inquire from the borrower whether the spouse has consented to the charge. 26. The appellant faults the Judge, for grounding his decision on section 59 of the Marriage Act, 2014 which relates to registration of marriages and is inapplicable to the circumstances of the case, arguing that her marital status was sufficiently proved through corroborated testimony from both her mother and father in law. 27. The appellant further submits that the trial court failed to consider relevant persuasive authority, specifically the decision in Pamela Imbuki Njaro & Another vs. Joseph Vutita Njaro & 2 Others [2014] eKLR where the court held that a charge over matrimonial property without proper spousal consent was unlawful and an injunction was granted. She asserts that the trial court ignored the legal safeguards protecting matrimonial property under the Land Act and Land Registration Act, improperly protecting the lender’s Page 22 of 21

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financial interests over Page 23 of 21

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statutory protection. She also urged that the loan obligations were not her responsibility as she was neither a party to the company nor to the transaction. Consequently, she contends that the judgment was based on incorrect legal principles and misapprehension of material facts. She therefore prays that the appeal be allowed, the trial court’s decision be set aside, and the intended auction be permanently restrained. 28. We have carefully considered the evidence adduced before the trial court as well as the pleadings submissions as per the record, and the appellant’s written submissions and the authority relied therein. We find that what falls for our determination is: a) Whether the appellant established that she was married to the 4th respondent. b) Whether the 1st respondent met the requisite chargee obligation to obtain spousal consent before the charge over LR No. Chuka Township/39, and served requisite notices; c) Whether the appellant was deserving of the orders of permanent injunction against the sale of LR No. Chuka Township/39, [suit land] sought against the respondents. 29. This being a first appeal, our mandate is akin to a retrial. Under Rule 31 (1)(a) of the Court of Appeal Rules, 2022, we are required to re-appraise the evidence and draw our independent inferences and conclusions. This mandate was explained in Abok James Odera T/A A. J Odera & Associates vs. John Page 24 of 21

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Patrick Machira T/A Machira & Co. Advocates [2013] eKLR as follows: “This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 30. The first issue is whether the appellant established that she was married to the 4th respondent. The trial Judge, after analyzing the evidence by both sides came to the following conclusion: “35. I find that the plaintiff (read appellant) has not demonstrated to the satisfaction of this court that she is the wife of the 4 th defendant (read 4th respondent). Indeed, except for the Birth Certificate of David Mwema who she claims is their son with the 4th defendant, no other evidence was proffered. 36. The plaintiff has not satisfied this court that she has a matrimonial house on the suit property. She has proffered no evidence to that effect… 48. I opine that PWI's (read appellant) evidence constitutes a litany of assertions which were later on denied. A conspectus of her evidence is that it is veritably garbled and contradictory to an extent that it loses all probative value. Indeed, one cannot know when she is telling the truth and when she is lying. Page 25 of 21

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49. PW1, except for the allegation that she had a son called Mwenda with the 4th defendant, she did not have any other document except his birth certificate to prove her claim that she was the 4th defendant's wife. Even assuming that she had a child with the 4th defendant, I opine that Page 26 of 21

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the mere fact that a woman has a child with a man, this does not mean that she becomes a spouse. Indeed PW 1 came out as a person who did not know what a spouse should know.” 31. The question whether one is married is a matter of facts and evidence. The trial court set out the evidence adduced in support of that allegation, including the evidence of the father and father-in-law of the appellant to the effect there was a marriage ceremony under Meru Customary Law and a child out of the union. He was not impressed. 32. In the case of VRM vs. MRM & Another [2006] KECA 342 (KLR) this Court stated as follows; “…The court must go further and consider whether, on the facts and circumstances available on record, the principle of presumption of marriage was applicable in the appellant’s favour. Such was the situation facing the predecessor of this Court in Hottensiah Wanjiku Yawe v Public Trustee, Civil Appeal No. 13 of 1976. Mustafa J.A in his leading judgment stated: “I agree with the trial judge that the onus that she was married to the deceased was on the appellant. But in assessing the evidence on this issue, the trial judge omitted to take into consideration a very important factor. Long cohabitation as man and wife gives rise to a presumption of marriage in favor of the appellant. Only cogent evidence to the contrary can rebut such a presumption, see re: Tapli – Watson v Tate (1973)3 ALLER 105. The trial judge did not consider this factor. The trial judge was not satisfied that the appellant had established, on a balance of probabilities, Page 27 of 21

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that the kikuyu customary marriage performed in accordance with all necessary Page 28 of 21 was the

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ceremonial rituals. It is not clear whether he found that the marriage was not valid because all the rituals were not performed, or that no marriage of any kind had taken place at all. However in considering whether there was marriage the trial judge ought to have taken account of the presumption of marriage in the appellant’s favour. Such presumption carries considerable weight in the assessment of evidence. Once that factor is put into the balance in the appellant’s favor, the scale must tilt in her direction.” 33. The case of VRM vs. MRM & Another, (supra), provides of what the court should consider to determine whether marriage, or even a presumption of marriage has been established. In the appellant’s evidence she was clear that she was a first wife of the 4th respondent, and acknowledged Lucyline as his wife too. She called evidence which affirmed that the 4th respondent had at least three women in his life. That was his own father’s evidence. He stated that he had the appellant and the other woman who featured prominently in the case, one Lucyline Kanyua. In addition, he had another one who also had his child. The evidence was also clear that the appellant did not live in the suit land but her son did, with his father and Lucyline. From this evidence we think that the appellant had established that she was a wife of the 4th respondent under Meru Customary Law and the trial Judge should have accepted it. After all, no one controverted her evidence. 34. The other issue is whether the 1 st respondent met the Page 29 of 21

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requisite chargee’s obligation to obtain spousal consent before the charge Page 30 of 21

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over the suit land and before the attempted sale. Section 79 (3) of the Land Act makes it mandatory that spouses residing on the matrimonial property give their consent to any intended charge. If such consent is not procured, any charge executed without such consent is invalid. The appellant says that she did not give her consent to the charge created over the suit property and that the charge was in the circumstances invalid. Section 79(3) of the Land Act (No. 6 of 2012) provides as follows: “(3) A charge of a matrimonial home shall be valid only if any document or form used in applying for such a charge or used to grant the charge, is executed by the chargor and any spouse of the chargor living on the matrimonial home, or there is evidence from the document that it has been assented to by all such persons.” (Emphasis added) 35. The 1st respondent’s case was that it took steps to obtain spousal consent before charging the suit land. It maintained that the 4th respondent’s spouse was Lucyline who, together with the 4th respondent presented themselves as a man and wife. It went further to state that the two were living in the suit land. Further, that Lucyline signed all the requisite documents, including the spousal consent forms, and for that reason they had no reason to doubt that she was not a spouse. The 1st respondent complied with section 79(3) by satisfying itself not just that Lucyline was wife of the 4 th respondent, but also that Page 31 of 21

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she lived in the suit land, which is another important element in regard to spousal consent. 36. The 1st respondent set out all the notices it served, not only to the 4th respondent, but also Lucyline, both in their personal capacity and as the representatives of the 3rd respondent. These were the Statutory Notice dated 3rd February 2015, Notice to sell dated 21st May 2015, and finally the Statutory Notice and advertisement by the 2 nd respondent, which was its agent. 37. Before a chargee exercises its statutory power of sale, certain obligations to do certain things are placed on it by Section 90 of the Land Act which provides: “90 (1) If a chargor is in default of any obligation, fails to pay interest or any other periodic payment or any part thereof due under any charge or in the performance or observance of any covenant, express or implied the chargee may serve on the chargor a notice, in writing, to pay the money owing or to perform and observe the agreement as the case may be. (2) The Notice required by sub section (1) shall adequately inform the recipient of the following matter – a) the nature and extent of the default by the chargor. b) if the default consist of the nonpayment of any money due under the charge, the amount that must be paid to rectify the default and the time, Page 32 of 21

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being not less than three months, by when the end of which the payment in default must have been completed.” Page 33 of 21

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38. Section 96 of the Land Act is even more important. Before a chargee exercises its Statutory Power of Sale, it is required to copy the notice to the spouse of the chargor, if that spouse has given consent. Section 9 (3) provides as follows: 96 (3) A copy of the Notice to sell in accordance with Sub-section (2) shall be served ona. ... b. … c. A spouse of the chargor who had given the consent. h. Any other person known to have a right to enter and use the land or the natural resources in, on or under the charged land by affixing a notice at the property…” 39. We find that the 1st respondent complied with all the legal requirements as to notices and spousal consent. The obligation was to ensure a spouse who signed the consent, and who lived on the charged property is served with notice of developments on the loan and the security to same, including failure to meet the loan obligations, which it did as required. 40. The issue is whether there was need to loop in the appellant and ensure she too gave consent as a spouse of the 4 th respondent? This is not an easy question as the law does not mention the issue of polygamous marriages. That said, we are aware of section 79 (3) of the Land Act which we cite again here, provides: Page 34 of 21

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“A charge of a matrimonial home, shall be valid only if any document or form used in applying for such a charge, or used to grant the charge, is executed by Page 35 of 21

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the chargor and any spouse of the charge living in that matrimonial home, or there is evidence from the document that it has been assented to by all such persons.” 41. The operative words are the ones we have underlined ‘is executed by the chargor and any spouse of the charge living in that matrimonial home.” We think that in the circumstances of this case, consent of the appellant was not required. The reason is, the appellant testified that she was unaware of the loan until she saw a notice by the auctioneer. She also said she did not know of the 1st respondent until the auctioneer’s notice to sell. She was not living on the suit land and never lived in the suit land. Taking that into account and given the fact the 1 st respondent was unaware of her existence, since even the 4 th respondent never disclosed that fact to them, it would be unreasonable and unjust to expect the 1st respondent to have found out about the appellant for purposes of serving her. The legal obligation under section 96(3) of the Land Act, just as section 79 (3) is to effect personal service of the notice upon the spouse who gave consent, and the spouse living on the land. Additional a notice affixed on the property to serve notice to the rest who enter to use resources in, on or under the land suffices. The appellant was not living on the land, and she had not given spousal consent, there was no obligation to serve her. 42. As to whether the appellant was deserving of the orders of Page 36 of 21

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permanent injunction against the sale of the suit land sought Page 37 of 21

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against the respondents. The simple answer is that having found that the 1st respondent complied with the legal obligation in respect to service of notices as prescribed under sections 79, 90 and 96 of the Land Act, then the orders sought, inter alia, to stop the sale of the suit land, could not have been issued. 43. The result of the appeal is that the same fails in total and is dismissed with costs to the 1st respondent. Dated and delivered in Nyeri this 25th day of September, 2026. S. ole KANTAI ………………….…………… JUDGE OF APPEAL J. LESIIT ………………….…………… JUDGE OF APPEAL A. O. MUCHELULE ………………….…………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 38 of 21

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