At Victor L. Andande & Co. Advocates, we regularly advise clients on disputes involving matrimonial property, spousal consent, and ownership of family homes. A recent Court of Appeal decision, Resma Commercial Agencies v Ngattah [2025] KECA 2214 (KLR), provides critical clarification on spousal rights in property in Kenya and underscores the importance of keeping documentary evidence of financial contribution.

The Court overturned a High Court ruling that had cancelled the sale of a family home, holding that marriage alone does not automatically confer ownership rights over property registered in a spouse’s name.

Marriage Does Not Automatically Create Ownership Rights

The Court affirmed that a spouse does not acquire a beneficial interest in property merely because:

  • They are married to the registered owner; or

  • They have lived in the property for a long period.

Ownership depends on proven contribution, not marital status.

Legal Basis

  • Section 7, Matrimonial Property Act, 2013 – Ownership is determined according to each spouse’s contribution.

  • Article 45(3), Constitution of Kenya, 2010 – Guarantees equal rights in marriage but does not create automatic co-ownership.

Burden of Proof Lies on the Claiming Spouse

A spouse whose name does not appear on the title must prove direct or indirect contribution to acquisition or improvement of the property.

Acceptable proof includes:

  • Receipts for building materials

  • Bank or M-Pesa statements

  • Mortgage payment records

  • Loan agreements

  • Contractor invoices

Legal Basis

  • Sections 107–109, Evidence Act (Cap. 80) – The party who alleges must prove.

Descriptive Labels Do Not Create Legal Rights

Calling property a “matrimonial home” or “family house” does not automatically give proprietary rights. Courts focus on evidence of contribution, not terminology.

Supporting Authorities

  • Echaria v Echaria [2007] eKLR

  • PWK v JKG [2015] eKLR

Indefeasibility of Title and Protection of Purchasers

The Court upheld the sanctity of title, ruling that a purchaser who conducts due diligence, finds a sole registered owner, and pays valuable consideration is protected.

Legal Basis

  • Section 26(1), Land Registration Act, 2012 – Certificate of title is prima facie evidence of absolute ownership.

Spousal Consent Not Required Where No Beneficial Interest Is Proven

Where a spouse cannot demonstrate a beneficial interest, spousal consent is not mandatory for sale or transfer.

Legal Basis

  • Section 93, Land Registration Act, 2012

  • Section 12, Matrimonial Property Act, 2013

Practical Guidance from Victor L. Andande & Co. Advocates

For Spouses

  • Keep all receipts and payment records.

  • Document financial and non-financial contributions.

  • Consider registering property jointly.

For Property Owners

  • Ensure your title documents are up to date.

  • Seek legal advice before disposing of property.

For Purchasers

  • Conduct official searches.

  • Engage an advocate in conveyancing.

  • Confirm ownership details thoroughly.

Conclusion

The Court of Appeal decision in Resma Commercial Agencies v Ngattah [2025] KECA 2214 (KLR) reinforces that beneficial interest in matrimonial property must be proven through evidence of contribution.

For spouses, documentation is protection. For purchasers, due diligence is security. For property owners, registration remains the strongest shield.

Need Legal Advice on Matrimonial Property or Conveyancing?

Victor L. Andande & Co. Advocates