CKS v JSS & another (Civil Appeal E184 of 2022) [2025] KECA 103 (KLR)

The issues the Court set itself to decide, in its own words.

1. 1.Whether the learned Judge erred in law and fact by disregarding the clear and mandatory provisions of Section 12 of the Matrimonial Property Act, 2013, thereby reaching an erroneous finding that spousal consent is a concept in the Land Legislation and not in the Matrimonial Property Act
2. 2.Whether the learned Judge disregarded the clear and mandatory provisions of Section 93 of the Land Registration Act, Cap. 300
3. 3.Whether the learned Judge erred by disregarding evidence and the law on the fact that the respondent and S could not lawfully enter into a contract regarding the Kakamega property, so as to defeat the clear provisions and requirements of the law
4. 4.Whether the learned Judge erred in law and fact by disregarding pleadings and evidence before him and exhibiting bias towards the appellant by disallowing the appellant's alternative prayer for compensation of at least half the current market value of the Kakamega property
5. 5.Whether the High Court had jurisdiction to determine the dispute concerning the Kakamega property, it having been sold and transferred to a third party

• Section 93 of the Land Registration Act gives deference to the Matrimonial Property Act, so the High Court with jurisdiction under the Matrimonial Property Act has jurisdiction over disputes concerning an interest in land acquired during marriage for co-ownership and use of spouses, even where a third party has been registered.
• Section 12 of the Matrimonial Property Act incorporates the concept of spousal consent; spousal consent is not only a concept applicable under land transactions subject of the Land Registration Act.
• A party alleging absence or forgery of a spousal consent bears the burden of proving it, ordinarily through forensic examination of the contested document; a spousal consent on the register cannot be impeached otherwise.

1. 1.Affirmed the orders made by the learned Judge in response to questions (1), (2) and (3) in the originating summons, in regard to the appellant's rights under the Matrimonial Property Act
2. 2.Affirmed the orders made by the learned Judge in response to questions (4), (5) and (6) in the originating summons, declining to issue any orders in regard to the Shirere property
3. 3.Set aside the orders made by the learned Judge declining to make orders in regard to questions number (7), (8), (9) and (10) in the originating summons, due to want of jurisdiction
4. 4.Declared that the Kakamega property being a matrimonial property was sold to S with the consent of both spouses
5. 5.Declined to issue an order of injunction in favour of the appellant in regard to the Kakamega property, the same having been lawfully transferred to S
6. 6.Affirmed the order that the appellant was entitled to half share of the proceeds of sale of the Kakamega property after discounting the amount that was paid to the bank to clear the outstanding loan, and the respondent should pay the said half share to the appellant
7. 7.Ordered that each party shall bear their own costs

One judgment of the whole court — no separate or dissenting opinions.

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.