How To Safeguard The Family Land.(By John Chigiti)

Posted: December 10, 2012 in Uncategorized

Many women usually trust their husbands when it comes to land transactions. It is not an unusual practice in Kenya to have the family property registered in the name of the man alone. It is usually the man who will go out there and identify a nice parcel of land for the family. These gender roles have in the recent past been changing.

He will thereafter negotiate and strike the deal for him and the wife. The women will put the matrimonial finances together or borrow funds jointly from the bank so as to acquire matrimonial property. Sometimes one of the spouses does not have any cash to make any monetary contribution to the purchase of the land. However the person who has nothing to put into the purchase ends up contributing to the development and improvement of the land.

They usually make what is otherwise known as indirect contribution. Unfortunately there is a notorious practice in Kenya where the person in whose name the property is registered would quietly dispose of the property without informing their spouse. This is why in Kenya we have the land control board to protect the family from disentitlement when it came to agricultural land.

Before a sale transaction is completed, the board has to give a consent blessing the transaction. The board has to sit and listen to the buyer and the seller as well as hear the sentiments of the families including the spouse. However many transactions still go on and circumvent the land board to the detriment of ignorant spouses and naïve family members.

The land registration laws in Kenya did not make things any better. They were very complicated. They were scattered in many complex pieces of legislation that were at times self-contradicting. They had loopholes and inconsistencies which ended up promoting inequality especially when it came to matrimonial property like afore highlighted.

With this in mind, the Constitution made a provision for matrimonial equality under Article 45(3) which provides that Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage. This right relates not only to the person of the spouses but also when it comes to matrimonial property.

Article 27(1) of the Constitution buttresses the equality of the spouses in that it stipulates that, every person is equal before the law and has the right to equal protection and equal benefit of the law. The two provisions of the Constitution were not brought about and left to apply in operation. The drafts man knew that most of the inequality took place around matrimonial property issues.

They realised that the various land registration systems and laws were not suitable or would serve no useful purpose in an environment that was seeking to achieve matrimonial equality. The Constitution also advocated for the the harmonisation and consolidated of land laws. The enactment of The Land Registration Act 2012 as enacted has the effect of breathing life into the foregoing equality provisions. It has repealed five of the old registration statutes.

The new Act at Section 93(2) embraces and takes express cognisance of indirect contribution in the form of labour, upkeep and improvement of land as a form of contribution that gives a spouse whose name is not registered equal right over the matrimonial property with the registered spouse.

This elevates the spouse who made no direct contribution to the acquisition of matrimonial property to that of the spouse who contributed. This promotes equality. This is what the Constitution envisaged in Article 3, 20,27 and 45 of The Constitution. This is indeed what the Kivuitu vs Kivuitu judgment advocated for.

The Act further provides that in the event your spouse disposes or sells the matrimonial property without your consent, then you can challenge or reverse the sale and or disposition so that the property reverts to the matrimonial property status. My friend if you are buying land from that married man or woman, you better due a due diligence check to ensure that the spouse has consented to the transaction. The Act is so big on protection of matrimonial property to the extent that it has now provided that the said spousal right is an overriding interest over the matrimonial property at Section 28(a).

In effect in a lay language this means that just like we all have the right of way, air, water, light, reserved over your land ,your spouse has similar powers and right over matrimonial land even if it is not mentioned expressly on the title or lease documents. We now have to do land transactions openly with our spouses. After all hide and seek in the marriage does not build the home. Joint matrimonial efforts and transparency helps build a stronger matrimonial castle.

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