Why decision on land consent in polygamous set-ups is important

Marriage creates rights and responsibilities, but does it follow that every wife in a polygamous marriage must consent whenever land is offered as security for a loan? In a recent decision, the Court of Appeal at Nyeri confronted this difficult question, bringing into focus the intersection between matrimonial property, the banking sector and the protection afforded to spouses under our land law regime. The judgment offers an important lesson, that is being a spouse does not, by itself, automatically entitle one to veto every transaction involving land, the statutory requirements and the circumstances of the matrimonial home matter.

The dispute in Elyjoy Kageni v Bank of Africa (K) Ltd & 3 Others, Civil Appeal No. 186 of 2018, arose from an attempt by Bank of Africa to exercise its statutory power of sale over land known as L.R. No. Chuka Township/39. The registered proprietor, Humphrey Mbabu Mbaka, had charged the property to secure banking facilities of Sh20.6 million advanced to United Brothers Camps Ltd, a company associated with him. When the company defaulted, the bank issued statutory notices and initiated the process of selling the land to recover the outstanding debt.

Ms Kageni challenged the intended sale. She maintained that she was Mbaka’s first wife, married to him under Meru customary law, and that the property was their matrimonial home. She argued that the charge was invalid because she had never been consulted or asked to consent to its creation. The position of the bank was that it had obtained the consent of Lucyline Kanyua Mutindwa, another wife of Mbaka, who had represented herself as his spouse and lived on the property. Kanyua had signed the relevant consent documents. The bank further maintained that it had no knowledge of Kageni’s existence and that the necessary statutory notices had been served. The Environment and Land Court dismissed Kageni’s suit. On appeal, however, the Court of Appeal accepted that she had established her marriage to Mbaka under Meru customary law. The court nevertheless dismissed her appeal once again, finding that the bank had complied with the applicable statutory requirements. The central provision was section 79(3) of the Land Act of 2012. It provides that a charge over a matrimonial home is valid only where the relevant documents are executed by the chargor and any spouse living in that matrimonial home, or there is evidence that the required persons have assented to the transaction. The significance of this provision lies in the connection between spousal consent and occupation of the matrimonial home. The law does not simply ask whether the chargor is married. It requires attention to whether the property is a matrimonial home and whether the spouse whose consent is in issue lives there.

In this case, the court distinguished between establishing the existence of a marriage and establishing an entitlement to participate in the particular transaction. Although it accepted that Kageni was a wife under Meru customary law, the evidence showed that she did not live on the charged property. Her son lived there with his father and Kanyua, who had given consent to the charge. The court therefore concluded that her consent was not required in the circumstances before it.

This distinction is important. A marriage may be genuine and legally recognisable without every property owned by one spouse automatically becoming the matrimonial home of every other spouse in a polygamous family. The court also considered the obligations imposed on lenders by sections 90 and 96 of the Land Act. Section 90 governs the notice of default, while section 96 addresses the notice to sell before a chargee exercises its statutory power of sale. The bank had issued the requisite notices to Mbaka and Kanyua, including the notice to sell. The court found that the bank had taken the required steps in relation to the spouse who had consented to the charge and who lived on the property.

Crucially, the court considered it unreasonable to expect the bank to discover and serve Kageni when she neither lived on the property nor had been disclosed to the bank by the chargor. It consequently found no legal obligation to serve her in the circumstances. This does not give lenders a licence to turn a blind eye to other spouses. Rather, it underscores the importance of proper inquiries, truthful disclosure and compliance with the statutory safeguards governing matrimonial homes and set-ups. A lender cannot safely assume that the consent of one person is sufficient in every case merely because that person presents themselves as a spouse.

The judgment speaks directly to the realities of polygamous marriages, where one husband may have several wives, separate households and different properties associated with different family units. The question is never simply whether a man has multiple wives. It is whether the particular land constitutes a matrimonial home occupied by a spouse whose consent the law requires. The legal consequences must be determined by the facts, rather than by the mere existence of a marriage. For spouses, the lesson is equally practical. Marriage should not be treated as a substitute for evidence. Where a spouse seeks to protect a home from being charged or sold, evidence of the marriage, occupation of the property and its character as a matrimonial home may become decisive. Where customary marriage is alleged, the relevant evidence must establish that relationship. Where occupation is disputed, that too must be proved. For borrowers, candour is essential. Concealing a spouse or misrepresenting family circumstances may expose a home to serious consequences. For lenders, thorough due diligence remains indispensable.

The court is a reminder that the law must reconcile the protection of matrimonial homes with the legitimate rights of lenders to recover unpaid debts. Section 79(3) does not make every loan secured by a married person’s land dependent on the consent of every spouse regardless of the circumstances.

The judgment should, however, be read narrowly. It does not declare that a first wife has fewer rights than a subsequent wife, nor does it establish that the consent of one wife will always suffice in a polygamous marriage. Its conclusion turned on the statutory language, the evidence of occupation and the bank’s knowledge of the circumstances. Learn ye the law!