Your land, your title, but first: Are you married?

By  Moraa Obiria

Senior Gender Journalist

Mariah* is still trying to get her head around one thing that has left her bewildered.

In 2017, she bought a piece of agricultural land in Nakuru with her own money, without help from a partner or husband, as she was not married at the time. The title deed is registered in her name, and she has been paying land rates since then.

A few days ago, she sold the land. While she needed the chief's letter and a sale agreement for the transaction, what surprised her most was being asked to swear an affidavit declaring her marital status in relation to the land.

"I needed the Land Control Board's consent to transfer the land to the new owner," she says. "When I went to apply for the consent, the official who received the application asked if I was married, and I said I was not. She then told me that on the day I appeared before the board, I had to come with an affidavit declaring my status."

Mariah protested, maintaining that she did not need spousal consent because the title deed clearly showed she was the sole proprietor.

"She calmly told me, 'It's okay, I understand, but that is the procedure to ensure that there are no interests or conflicts over the land. If what you are saying is true, then there is nothing to worry about. Just swear an affidavit declaring your marital status; otherwise, your application for consent will be rejected," she says.

Following the advice, Mariah obtained the document, which cost her Sh5,000. The affidavit declares that she is "the sole proprietor of property known as … which I acquired solely", with a copy of the title deed attached to confirm the declaration.

However, according to a legal expert on land matters, the requirement is not limited to women; unmarried men are also required to provide the affidavit.

In Kenya, men remain the majority holders of agricultural land. Data from the 2022 Kenya Demographic and Health Survey shows that 25 per cent of women own agricultural land. Of these, three per cent own land independently, while 20 per cent own it jointly with a spouse or partner.

Under the Land Control Act (Cap. 302), certain transactions involving agricultural land, including sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing with agricultural land within a land control area, are void without the consent of the relevant Land Control Board.

Neither the Land Control Act, the Land Registration Act (Cap. 300) nor the Matrimonial Property Act (Cap. 152) expressly provides for a spousal consent requirement for land owned by an unmarried person or acquired before marriage. The law does, however, provide for spousal consent in circumstances involving matrimonial property.

Section 93 of the Land Registration Act, on co-ownership and other relationships between spouses, provides that where a spouse acquires an interest in land during the subsistence of a marriage for the co-ownership and use of both spouses, the property is deemed matrimonial property and dealt with under the Matrimonial Property Act.

Section 12 of the Matrimonial Property Act, which contains special provisions relating to matrimonial property, provides that an estate or interest in matrimonial property cannot, during the subsistence of a monogamous marriage and without the consent of both spouses, be alienated in any form, including through sale, gift, lease or mortgage. The law also provides that a spouse in a monogamous marriage, or, in a polygamous marriage, a man and any of his wives, may have an interest in matrimonial property capable of protection by a caveat, caution or otherwise under the law relating to registration of title to land or deeds.

So why should a Land Control Board require an unmarried person to swear an affidavit?

Humphrey Otieno, legal counsel at the Federation of Women Lawyers-Kenya (Fida-Kenya), says the affidavit required from an unmarried person selling agricultural land is a precautionary measure by the board.

"The affidavit provides a record of the seller's declaration of their marital status at the time of the transaction," he says. "This can become important if a dispute arises later, particularly if someone claims to have been the seller's spouse and argues that their consent should have been obtained before the land was sold."

He explains that a spouse may have an interest in property acquired during a marriage even where the title is registered solely in the name of one spouse. The fact that only one spouse's name appears on the title, therefore, does not by itself determine whether the property is subject to spousal rights, he says.

"If someone else comes in the future and says that they were the spouse to the seller and their consent was not sought, the seller will have to answer why they swore an affidavit indicating that they were not married, and the title deed may be cancelled," he says.

The affidavit requested from an unmarried seller should not, therefore, be interpreted as the board questioning the person's ownership of the land, Humphrey says. Rather, it serves as a safeguard, recording the seller's declaration in case their marital status or another person's interest in the property is challenged later, he emphasises.

The requirement is not limited to land transactions. Banks may also require an affidavit or other evidence of spousal consent or awareness when land is offered as security for a loan.

"Nowadays, banks usually also need the affidavit before you give your land as security, to indicate that the spouse also consented or was also aware," Humphrey says.

*Name changed to protect her identity.

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