All templatesMEMORANDUM OF ADVICE
To: Esther Wambui Njoroge
From: Kamau & Wekesa Advocates LLP
Date: 8 October 2026
Re: Charging of the matrimonial home on Title No. Nairobi/Block 82/1150 without spousal consent and the advertised auction of 2 November 2026
1. Issue
You have asked: "Can the bank sell my matrimonial home at auction when my husband charged it without my consent?"
2. Brief Answer
It is likely that the bank cannot lawfully sell the home at auction on the strength of a charge over which you did not sign or assent, because a charge of a matrimonial home is valid only if the instrument used to grant it is executed by the chargor and any spouse of the chargor living in that matrimonial home, or the document shows that all such persons assented. It is also arguable that the advertised auction of 2 November 2026 should not proceed while your interest in the property remains unprotected on the register, and that the sale can be stopped or set aside if the consent requirement was not met. The answer depends on facts and documents we do not yet have, and we set those out below.
3. Facts
1. The home on Title No. Nairobi/Block 82/1150 is registered in your husband's name.
2. He charged it to the bank in 2023 for a business loan.
3. You never signed a spousal consent.
4. The bank has advertised an auction for 2 November 2026.
Our advice rests on these facts as supplied, and it may change if any of them is different or incomplete.
4. Analysis
1. Two statutes bear directly on this question. The first is the Matrimonial Property Act, which governs dealings with matrimonial property during the subsistence of a marriage. Our understanding is that under section 12(1) of that Act an estate or interest in any matrimonial property shall not, during the subsistence of a monogamous marriage and without the consent of both spouses, be alienated in any form, whether by way of sale, gift, lease, mortgage or otherwise. A charge is a mortgage within the ordinary meaning of that provision, so the charging of the home in 2023 engages this requirement if the home is matrimonial property and the marriage is monogamous. It is arguable that an alienation effected without the required consent is not binding on the non-consenting spouse's interest.
2. The second is the Land Act, which governs charges. Our understanding is that under section 79(3) of that Act a charge of a matrimonial home is valid only if any document or form used in applying for the charge, or used to grant the charge, is executed by the chargor and any spouse of the chargor living in that matrimonial home, or there is evidence from the document that it has been assented to by all such persons. On the facts you have given, the charge instrument was executed by your husband alone and you neither signed nor otherwise assented to it. If that is correct, it is arguable that the charge is invalid so far as it burdens your interest in the matrimonial home.
3. Related to this, the Land Registration Act addresses the position of a spouse who obtains an interest in land during the subsistence of a marriage for the co-ownership and use of both spouses. Our understanding is that under section 93 of that Act such property is deemed to be matrimonial property and is to be dealt with under the Matrimonial Property Act. This reinforces that the home is to be treated as subject to the spousal consent regime, and it supports the argument that your interest subsists notwithstanding that the register shows your husband as sole proprietor.
4. On the enforcement side, our understanding is that the Land Act regulates a chargee's exercise of the power of sale. Section 100 of that Act deals with purchase by a chargee. That provision concerns the chargee buying the property rather than the validity of the charge and, in our view, does not cure an invalidity arising from want of spousal consent. The Act also contemplates a duty on the chargee in the exercise of the power of sale; the precise provision is to be confirmed, as the excerpt supplied to us does not set out its text in full.
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