Bitter-sweet deal on proprietary rights
The term spouse is neither defined under the Land Registration Act ( hereinafter also referred to as LRA), nor in the Matrimonial property Act, 2013. However, the Land laws (Amendment Bill) 2015 defines a spouse as either a husband or a wife married under any recognised law in Kenya. One contentious issue has been whether long cohabitation is recognised as marriage under this law, and whether a spouse under such an arrangement is a spouse for purposes of property rights.
In July this year, the High court of Kenya in “RLA v FO & Another  EKLR” had a chance to deal with the issue of presumption of marriage due to long cohabitation under the regime after the enactment of the Marriage Act, 2014, and stated in part that under the Marriage Act, there are only five types of Marriages that are recognised in Kenya. That Section of the Marriage Act, 2014 provides in Section 6 (1) that a marriage may be registered if it is celebrated “in accordance with the rites of a Christian denomination; as a civil marriage; in accordance with the customary rites relating to any of the communities in Kenya; in accordance with the Hindu rites and ceremonies; and in accordance with the Islamic Law.”
Justice Mabeya, in making the ruling, however, observed that “It would seem that marriage by long cohabitation is not recognised under that Act. Does this do away with those relationships where couples have lived together as man and wife for years, even whose relationships have ended up in children? I do not think so.”
The High Court quoted with approval an earlier decision of the Court of Appeal in “Hortensia Wanjiku Yahweh Vs Public Trustee C.A No. 13 of 1976” where it was stated: “The presumption is nothing more than an assumption rising out of long cohabitation and general repute that the parties must be married irrespective of the nature of the marriage contracted.”
The LRA does not define what amounts to matrimonial property but the Matrimonial Property Act of 2013 makes an attempt. Under Section 6, matrimonial property is defined to include “the matrimonial home (property owned or leased by one or both spouses and occupied or utilised by the spouses as their family home, including any other attached property); household goods and effects; and any other immovable and movable property jointly owned and acquired during subsistence of the marriage.”
Parties to a marriage may, however, enter an agreement before marriage determining their property rights. An exception to what may not fall within the definition of matrimonial property is property held under a trust, and this includes property held under trust under customary law.
The Land Laws (Amendment) Bill 2015 seeks to include a definition in the LRA defining matrimonial property for purposes of that Act as any interest in land or lease that is acquired by a spouse or spouses during the subsistence of a marriage.
According to the LRA, the consent of a spouse(s) is required for disposition of land. Where a spouse who holds land or a dwelling house in his/her name individually undertakes a sale of that land or dwelling house, the purchaser is under duty to inquire whether the vendor's spouse has consented to the sale. If the vendor's spouse refuses to consent, then this would stop the vendor from selling the vendor's property. This applies to leasing as well. The requirement for spousal consent extends to all land and is not limited to matrimonial property. The Bill doesn't make changes on this.
On co-ownership, except with leave of a court, the only joint tenancy capable of being created shall be between spouses; any joint tenancy other than that between spouses that is purported to be created without the leave of a court shall take effect as a tenancy in common. This according to the LRA. The Bill proposes to amend this to allow such joint tenancies.
Under Section 93 of the LRA, if a spouse obtains land for the co- ownership and use of both spouses, there is a rebuttable presumption that the spouses shall hold the land as joint tenants, unless a provision in the certificate of ownership or the certificate of customary ownership clearly states that one spouse is taking the land in, his or her own name only.
Further, the Section allows the Registrar to register spouses as joint tenants out of such a presumption. However, under the Bill, Section 37 seeks to amend this section, such that if a spouse obtains land for the co-ownership and use of both spouses, the spouses shall hold the land as tenants in common.
The ultimate effect would then be that should one spouse die, the entire property does not automatically vest in the surviving spouse under the doctrine of survivorship. Their ascertainable interest in the land shall be transferred as part of the deceased spouse's estate under the succession laws. This amendment is sound, in my view, and a game changer.
Presently, under Section 93(2), if land is held in the name of one spouse only but the other spouse or spouses contribute by their labour or other means to the productivity, that spouse or those spouses shall be deemed to have acquired an interest in that land in the nature of an ownership in common of that land with the spouse in whose name the certificate of ownership has been registered, and the rights gained by contribution of the spouse or spouses shall be recognised in all cases as if they were registered. This would, in my opinion have unfair effects in the sense that whereas one has made their investment through struggle and sweat, their spouse merely acquires and interest by contributing here and there. The measure of the interests the other spouse acquires is also unascertainable and hard to establish. Section 37 of the Bill deletes this subsection. Perhaps the proper way would be to replace the section with a provision that is more specific as to what level of interest the other spouse acquires.^