Spousal consent in land and mortgage transactions

Kenyan land law protects spouses who live on, or contributed to, property registered in the other spouse’s name.

The legal requirement

Under the Land Registration Act, 2012 and the Land Act, 2012, a lender must take reasonable steps to confirm whether a spouse’s consent is required before registering a charge over a matrimonial home. Where a spouse has an interest, a transfer or charge made without their consent can be challenged.

Why buyers and lenders care

A spouse who did not consent may:

• seek to set aside the sale or charge,
• obtain an injunction stopping a sale by a lender, or
• claim an interest in the proceeds.

How to protect yourself as a buyer

1. Ask the seller to swear an affidavit stating their marital status.
2. Obtain spousal consent in writing, signed before an advocate who explains its effect.
3. Check the search for cautions or restrictions lodged by a spouse.
4. Visit the property and ask who lives there.

For lenders

Lenders should record the spouse’s informed consent and keep the advocate’s certificate that the effect was explained.

This article is general information, not legal advice on your situation.

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• Conveyancing lawyers in Kenya
• Land and property transfer
• Land disputes
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