Bit­ter-sweet deal on pro­pri­etary rights

Nairobi Law Monthly - - Analysis - ENOCK WABWOBA

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 [2015] 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.^

Newspapers in English

Newspapers from Kenya

© PressReader. All rights reserved.