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.