A first wife proved her customary marriage before the Court of Appeal, yet could not stop the sale of a property she had never lived on. This update distils the holding, the reasoning and the takeaways.
Background
In 2012, Bank of Africa (K) Ltd (‘the Bank’) lent Kshs 20,600,000 to United Brothers Camps Ltd against a charge over L.R. No. Chuka Township/39, owned by its director, Humphrey Mbabu Mbaka. He and his co-director, Lucyline Kanyua Mutindwa, presented themselves as husband and wife residing on the property, and Lucyline executed an express spousal consent. Upon default, the Bank issued statutory notices and instructed auctioneers to sell.
Elyjoy Kageni then sued, claiming to be Mr. Mbaka’s first wife under Meru customary law and that the charge was void for want of her consent under section 79(3) of the Land Act, 2012. The Environment and Land Court at Chuka dismissed her suit, finding the marriage unproved and holding that the consent of ‘any’ one spouse sufficed. Her appeal, Elyjoy Kageni v Bank of Africa (K) Ltd & 3 others [2026] KECA 1921 (KLR), was determined by Kantai, Lesiit and Muchelule, JJ.A. on 25th September 2026.
The Holding: A Marriage Proved, a Charge Upheld
The appeal was dismissed with costs, although the Court reversed the finding on marriage and reasoned differently on consent, acknowledging that the issue was:
“not an easy question as the law does not mention the issue of polygamous marriages.”
The trial court had held that having a man’s child does not make a woman his spouse. Re-appraising the evidence, and guided by VRM v MRM & Another [2006] KECA 342 (KLR) on the presumption of marriage, the Court of Appeal held that the appellant had proved a Meru customary marriage, chiefly through the uncontroverted testimony of Mr. Mbaka’s own father, who acknowledged both women as his son’s wives.
Section 79(3): Residence, Not Status, Triggers the Consent Requirement
Section 79(3) validates a charge of a matrimonial home only if it is executed by the chargor “and any spouse of the chargor living in that matrimonial home”. The Court treated those words as operative. The appellant had never lived on the suit land, where her son lived with his father and Lucyline; her consent was therefore not required. Marital status alone does not trigger the consent requirement; residence does.
The Chargee’s Duty: Diligence, Not Clairvoyance
The Bank obtained consent from the resident spouse who presented as wife and served her with the notices, as section 96(3) of the Land Act requires; a notice affixed on the property suffices for others entitled to use the land. The appellant was unknown to the Bank, and Mr. Mbaka never disclosed her. To expect the Bank to discover her, the Court held, “would be unreasonable and unjust”.
What the Judgment Leaves Open
First, the Court did not decide whether one consent suffices where two or more spouses share the home; the statutory words “all such persons”, and the Court’s own statement that resident spouses must consent, point towards the consent of each. Second, the lender’s duty of inquiry under section 93(3)(a) of the Land Registration Act, though raised, was not addressed. As the Court weighed the Bank’s ignorance of the appellant, a lender aware of another spouse should not assume the same outcome.
IMPLICATIONS FOR CHARGEES AND SPOUSES: THE TAKE HOME
Lenders, spouses and their counsel should note the following:
| Lesson / Take Home | Who Should Act |
|---|---|
|
Banks and lenders; conveyancing counsel |
|
Lenders; recovery teams; auctioneers |
|
Spouses; family and land litigators |
This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set out in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact the Litigation Department at Wamae & Allen LLP: Litigation@wamaeallen.com.
About the author
Caxstone specializes in civil, employment and labour disputes, constitutional law, family law and succession, and environment and land matters. He has amassed a wealth of knowledge and experience in litigation which is evident in the successes obtained for clients. He is an active member of the Employment and Labour Relations Court Bar-Bench committee.
Denis Mutugi specializes in Commercial Litigation and Alternative Dispute Resolution.
Denis graduated with a Bachelor of Laws, LLB (Hons) from The University of Nairobi in 2021 and was admitted to the Roll of Advocates of the High Court of Kenya in the year 2023.
Denis has amassed a considerable wealth of experience in conducting legal research on various complex legal matters touching on Commercial, Insurance, Employment and Insolvency law and bankruptcy.
