On 2018-11-20, the High Court in Kenya invalidated a Murang’a land transaction after finding that the seller had not obtained spousal consent before transferring property that his wife said formed part of the matrimonial estate.
The dispute centred on a quarter-acre parcel that third-party buyer Joseck Mukuha, a Murang’a County resident, bought from James Kanyuga and later used as security for a Sh13 million loan from Unaitas Sacco in 2014. The court found that the transfer was tainted by fraud and that the buyer and lender failed to do basic checks before proceeding.
According to the record before the court, Kanyuga had acquired the land from SKK only a month earlier. The case also revealed that SKK was Kanyuga’s uncle, a detail that formed part of the wider challenge to the sale.
SKK’s wife, identified in the proceedings as MWK, went to court after learning that the land had been sold without her knowledge. She argued that the property was matrimonial land and that her consent was required before any sale could be completed.
Justice Grace Kemei agreed with MWK and cancelled the transaction. In her view, the transfer had been carried out fraudulently, and the absence of the required spousal consent made the sale unlawful.
“In view of the absence of the prescribed spousal consent of the plaintiff, it is irresistible to conclude that the sale and transfer of the suit land by the first defendant to the second defendant (Kanyuga) is illegal, null and void,” ruled Justice Kemei.
The judge also criticised the missing documents that should have supported the transfer. She said Unaitas Sacco should not have advanced the loan without confirming the ownership history of the land.
On Mukuha’s part, the court found that he had not carried out a proper search into how Kanyuga had acquired the property. SKK told the court that the land carried a rental building that generated Sh2.1 million a year and that it was ancestral land inherited by her husband from his father.
She further said she had put in her own money and time to develop the property, which in her view gave her a say in whether it could be sold. Although she also sued her husband, MWK, he did not respond to the case.
Both the sacco and the buyer denied that the land had been unlawfully sold. Their separate defences did not persuade the court, which also faulted the Murang’a Land Control Board for processing consent forms that carried the same serial number for two different sales.
Justice Kemei went further and said Unaitas appeared to have colluded with the parties to the transaction, noting that it did not produce records showing that it had issued the loan to Mukuha. She described it as unusual for the lender to advance money to a non-member without documents showing prior dealings with the institution.
