In Kenya’s banking and property transactions, a registered charge is often viewed as the ultimate protection for lenders. Once registered, it gives a bank the right to exercise its statutory power of sale if the borrower defaults.

But what happens when a borrower charges property that forms part of the matrimonial property without the knowledge or consent of their spouse?

Kenyan law has increasingly addressed this issue, placing significant emphasis on spousal rights and protection of the matrimonial home. Below is a practical Q&A guide unpacking the legal position.

What qualifies as “matrimonial property”?

Section 6 of the Matrimonial Property Act defines matrimonial property to include:

• The matrimonial home or homes;
• Household goods and effects in the matrimonial home or homes; or
• Any property jointly owned or acquired during marriage

Kenyan courts interpret this broadly. In Mary Wanjiru Njuguna v Peter Weru Kabui & 2 Others [2020] eKLR, the court held that property acquired during marriage and used as a family home qualified as matrimonial property even within a polygamous setting and required proper spousal consent.

Is spousal consent legally required before charging matrimonial property?

Yes. The requirement is anchored in:

• Section 79(3) of the Land Act;
• Section 93 of the Land Registration Act; and
• Section 12 of the Matrimonial Property Act.

These statutes collectively prohibit the disposition or charging of matrimonial property without the written consent of spouses.

What if the property is registered in only one spouse’s name?

Registration in one name does not extinguish the other spouse’s interest.

In FWM v PNK[2022] KEHC 10636 (KLR), the court affirmed that non-monetary contributions such as childcare, domestic management and companionship can ground equitable interests in matrimonial property.

What is the legal effect of failure to obtain spousal consent?

Courts have repeatedly held that absence of spousal consent can render a charge invalid or unenforceable.

The case of M’Rukaria (Suing as the Personal representative of the Estate of the Late Judah Mbijiwe M’Rukaria) v Equity Bank (Kenya) Limited (Civil Suit 4A of 2020) [2025] KEHC 6381 (KLR), the Plaintiff, who was the son of the deceased borrower, asserted that the suit properties were matrimonial property. He argued that his mother never gave spousal consent for the creation of the charges on the properties. Additionally, he alleged that the consent documents were forged. The court held that spousal consent is a substantive statutory condition. Further, the forgery of the spouse’s signature and the lack of proper identity verification by the bank of the persons purportedly granting the consents invalidated the charges in question.

Is the charge automatically void in every case?

Not automatically but highly contestable.

Courts examine:

• Whether the property truly qualifies as matrimonial property
• Whether the spouse was aware and acquiesced
• Whether consent was forged or fraudulently procured
• Whether the charge pre-dated the 2012 land law regime

In Ibrahim & 2 others v Bonaya & another (Civil Case E003 of 2021) [2023] KEHC 429 (KLR), the court recognized that charges taken before the enactment of Land Registration Act 2012 cannot be invalidated on the basis that spousal consent had not been obtained. The registered proprietor of the suit land could validly charge the land without obtaining the spouse’s consent.

Conclusion

Kenyan courts are sending a consistent message:

Matrimonial property cannot be leveraged for credit without meaningful and verified spousal participation.

In an era where secured lending underpins economic growth, compliance with spousal consent requirements is no longer an optional risk management but a foundational legal hygiene.