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Man’s failure to seek consent from wife to sell land costs buyer and Sacco

REAL ESTATE
By Kamau Muthoni | November 20th 2018

A buyer and a sacco are facing a Sh13 million loss for failing to ascertain whether a man had sought his wife’s consent to sell a piece of land.

Third-party buyer Joseck Mukuha, a resident of Murang’a County, bought the contested land estimated to be a quarter acre from one James Kanyuga and used it as collateral to secure a Sh13 loan from Unaitas Sacco in 2014.

Mr Kanyuga had bought the land from SKK a month earlier. The deal was later found to be fraudulent. It emerged in the case that SKK is Kanyuga’s uncle.

SKK’s wife, dubbed MWK, upon learning that he had sold the land behind her back, sought the court’s help, arguing that it was matrimonial property hence he ought to have sought her consent.

High Court Judge Grace Kemei, while agreeing with MWK, cancelled the sale, noting that the transfer was done fraudulently.

The judge also noted that crucial documents that allowed the transfer were missing and put the sacco on the spot for giving out the loan without confirming the ownership of the land.

“In view of the absence of the prescribed spousal consent of the plaintiff, it is irresistible to conclude that the sale and transfer of the suit land by the first defendant to the second defendant (Kanyuga) is illegal, null and void,” ruled Justice Kemei.

On Mukuha, the judge found that he had failed to carry out a search on how Kanyuga had bought the land. According to SKK, the contested land had a rental building fetching Sh2.1 million a year. She also explained that the property was ancestral land which her husband had inherited from his father.

According to SKK, she had contributed her money and time to develop the property, which gave her an entitlement on whether it ought to be sold.

Although she had also sued her husband, MWK, he did not reply to the case.

The sacco and the buyer filed separate defences, denying that the land had been illegally sold.

But the judge faulted the land control board in Murang’a for processing consent which bore the same serial number for the sale to two people.

Justice Kemei also noted that Unaitas colluded with the three in the sale as it never produced documents showing that it had issued a loan to Mukuha.

She noted that it was mysterious for the lender to issue a loan to Mukuha while he was not its member and did not produce any documents showing that he transacted with it before he got a loan.

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