A charge taken before the enactment of the Land Registration Act 2012 cannot be invalidated for failure to obtain spousal consent ENW v PWM ELC No 240 of 2012 Environment and Land Court at Nairobi J W Mutungi, J July 30, 2013 Reported by Andrew Halonyere & Cynthia Liavule Download the Decision Issues: I. Whether the Land Registration Act,2012 had effect on acts that took place before the Act came into force II. Whether charges taken before the enactment of the Land Registration Act 2012 could be invalidated on the basis that spousal consent had not been obtained. Land Law – charge – validity of charge – whether charges taken before enactment of the Land Registration Act, 2012 could be invalidated for failure to obtain spousal consent – Land Registration Act, 2012 section 93(2), (3). Statutes – interpretation of statutes – whether section 93(2) and (3) could have retrospective application where a charge had been taken. Land Registration Act, 2012 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, upkeep and improvement of the land, that spouse or those spouses shall be deemed by virtue of that labour 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 or customary certificate of ownership has been registered and the rights gained by contribution of the spouse or spouses shall be recognized in all cases as if they were registered . (3) Where a spouse who holds land or a dwelling house in his or her name individually undertakes a disposition of that land or dwelling house,— (a) the lender shall, if that disposition is a charge, be under a duty to inquire of the borrower on whether the spouse has or spouses have, as the case may be, have consented to that charge; or (b) the assignee or transferee shall, if that disposition is an assignment or a transfer of land, be under a duty to inquire of the assignor or transferor on whether the spouse or spouses have consented to that assignment. Held: 1. The Land Registration Act came into operation in 2012 and it was not intended to have retrospective application. The transaction between the 1st and 2nd defendant was executed in 2005 when there was no requirement for spousal consent to be obtained before a spouse could deal with any asset registered in their sole name. In the premises the 1st defendant could properly deal and transact with the third parties in regard to the suit property without necessarily consulting with and/or obtaining the consent of the spouse as he was the sole registered proprietor of the suit property. 2. A party could bring an application for injunction pending appeal in the court that dismissed the application for injunction that was appealed from. Such an application could not be based on the same facts, issues and circumstances that were before the court in the earlier application. 3. Where a property that would otherwise be considered as matrimonial property was tendered as security for a bank loan, such property became a commercial commodity available in the market and liable to be sold by the chargee under the chargee’s statutory power of sale and the exercise of such power of sale could not be defeated by a claim that such property constituted matrimonial property. That was what informed the requirement in the new Land Registration Act requiring spouses to give their consent to the charging of matrimonial properties so that none of the spouses could be heard to say they were not aware or were not consulted when the charge was taken. 4. Charges taken before the enactment of the Land Registration Act 2012 could not be invalidated on the basis that spousal consent had not been obtained. It was not a requirement prior to the enactment of the new Land Registration Act and therefore the plaintiff could not have refuge under the new Land Act. 5. The 2nd defendant being the registered proprietor of the suit property had indefeasible title under sections 25 and 26 of the Land Registration Act unless it was proved he acquired the title fraudulently. Application dismissed.
Posted on: Fri, 25 Oct 2013 05:35:09 +0000
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