Spousal rights hampering new land laws

By Harold Ayodo

Kenya: Spousal property rights are among factors presenting a challenge to the implementation of new land laws.

The hurdles of implementing the Land Registration Act (2012) and the Land Act (2012) include, among other, the lack of legal definitions of key terms like matrimonial property, dwelling house and spouse.

The two property laws further use various technical terms interchangeably and also without definitions — matrimonial land, matrimonial property and dwelling house. The concerns came to the fore during a recent Continuing Legal Education (CLE) Seminar at a Nairobi hotel on Proposed Amendments to the Land Registration Act (2012) and Land Act (2012).

The law

According to Section 93 of the Land Registration Act (LRA), if a spouse obtains property for co-ownership and use of both of them, the law will presume the investment is owned jointly.

The presumption will not hold if a provision in the certificate of ownership or customary ownership states that one spouse is exclusively taking the property under his or her name.

The law further says the Registrar will register spouses as joint tenants if property is held in the name of one spouse but the other contributes by their labour towards improving the investment.

It says that the spouses who labour on the property will be deemed by virtue of their sweat to have acquired an interest in the investment.

However, Section 28 (a) of the same law contradicts Section 93 as it makes spousal property interests overriding interests.

Lawyer Peter Muhiu Mwangi who made a presentation at the CLE Seminar says proposes amendments to the two Land Acts towards a seamless implementation.

Mwangi presented a legal paper titled Challenges Posed by the Implementation of the Land Statutes and Proposed Amendments to the Land Registration Act.

He also pointed out Section 79(3) of the Land Act whereby a charge of a matrimonial home is only valid when consented by the charger and of any spouse living in that matrimonial home.

According to Mwangi, the provisions have a retrospective effect as Section 96(3) of the same Act oblige a lender to issue a notice of realization of security to any spouse who has given consent.

Mwangi says that some of the provisions of the Land Registration Act and Land Act create confusion, as the country does not have a law on Matrimonial Property.

However, the last time I checked, the Matrimonial Property Bill (2012) was on the rails in the wake of constitutional provisions on equality regardless to gender and property rights.

The Bill provides for the rights and responsibilities of spouses in relation to matrimonial property, equal legal status of men and women in marriage.

Provisions of bill

It also and recognises the capacity of either spouse to acquire separate property during marriage and how the investments will be dealt with in polygamous and customary marriages. The Matrimonial Property Bill also allows spouses to enter agreements on how they would own property, either separately or jointly.

It makes provisions for how persons professing the Islamic faith should be governed by Islamic Law in all matters relating to matrimonial property.

— The writer is an advocate of the High Court