STELLA MOKEIRA MATARA V. THADDUES MOSE MANGENYA & FAMILY BANK LIMITED

JUDGMENT OF THE COURT

INTRODUCTION

The fundamental question that arose for determination before the trial court was whether the provisions of sections 78 (1) and 79 (3) of the Land Act, 2012, and section 28 (a) of the Land Registration Act, 2012 are applicable in respect of charges that were drawn and registered prior to the enactment of the said Acts. Section 79 (3) of the Land Act, 2012 provides that a charge over matrimonial home shall only be valid if executed by the chargor and any spouse of the chargor living in that home, or if such charge is consented to by such spouse or chargor. On the other hand, section 28 (a) of the Land Registration Act provides that all rights over registered land are subject to spousal rights over matrimonial property. The relevant charge in this appeal was drawn and registered sometimes in 2011.

THE APPELLANT’S SUIT

The appellant filed a suit before the Environment and Land Court at Kisii seeking, inter alia, a permanent injunction to restrain the respond…