6.The issues for determination from the evidence adduced by the parties is whether:-(a)The subject property is matrimonial property.(b)Whether the plaintiff gave spousal consent to the charge of the subject property.
7.Although George was joined in this action as a 3rd defendant, he did not file a defence nor did he attend the hearing of this case.
8.The plaintiff relied on her witness statement 15th January, 2018. That statement simply confirmed the plaintiff was served while at home on behalf of George with redemption notice of KCB. She stated she was unaware that the subject property had been entered as security for a loan. She later learn that the law required a spousal consent when matrimonial property was used a security. In her oral evidence, the plaintiff stated that her husband George had not disclosed to her he had obtained a loan facility from KCB.
9.On being cross examined, the plaintiff stated she was married to George through the Kikuyu Customary Law in the year 2003. She confirmed that they are still married but on being asked George’s whereabouts, she stated she last saw him a week before when he went to pick their children to take them to school. On being re-examined about George, she replied:-On being questioned about spousal consent before court, the plaintiff replied:-
10.The plaintiff confirmed she had not filed a complaint with police of her allegation of forgery of her signature, on that spousal consent.
11.The plaintiff’s evidence was supported by Chief Inspector of police Susan Wambugu. This witness produced her forensic report dated 12th October, 2020. The report is on the letterhead of National Police Service, Directorate of Criminal Investigations. The Police Officer, after outlining her qualification as a forensic document examiner, she stated she was requested to examine the spousal report, comparing the signature on it with sample of series of signatures provided to this police officer. In the police officer’s opinion the peculiar characteristics in the signature on the spousal consent and the sample signatures provided forensic evidence of different authorship.
12.KCB evidence was offered by Peter Sawe, an employee of KCB. He, at the material period, worked as credit administrator at KCB Thika branch. He confirmed plaintiff provided a spousal consent in a form of an affidavit and her signature was witnessed by a commissioner of oaths. This witness was familiar with both the plaintiff and George and attended to both of them when the loan repayment went into default.
13.In consideration of the firs tissue, whether the plaintiff proved the subject property was matrimonial home, I must say the plaintiff failed to shift the burden of proof in this regard. There was no independent evidence offered to prove this issue. The plaintiff failed to prove the subject property is matrimonial home as defined in Section 2 of the Matrimonial Property Act as follows:-
14.The plaintiff had a legal duty to provide evidence to prove it was matrimonial property. Even George her husband and 3rd defendant did not offer support on this issue.
15.The second issue the plaintiff was obligated to prove was that the spousal consent was not her document.
16.It is useful to refer to Section 79(3) of the Land Act which states:-
18.The law is clear that the lender/financier is obligated to obtain spousal consent in case of property that is matrimonial or as seen in the provision of Land Registration Act where one spouse holds in his/her name land or dwelling house.
19.KCB presented a detailed spousal consent in an affidavit, in the plaintiff’s name and bearing a signature of the maker of that affidavit. That signature is witnessed by an advocate of the High Court. The plaintiff did not call evidence of that Commissioner of Oaths to deny he witnessed her sign the spousal consent.
20.The evidence of the document examiner fails to disprove that the signature appearing on the spousal affidavit is not that of the plaintiff. Despite being highly trained as a document examiner, that police officer compared the signature on the spousal consent with a series of sample signatures supplied to her. She, the documents examiner, did not know who made the sample signatures. On being cross examined about those sample signatures, which this officer used to compare with the signatures on the spousal consent, she responded:-
21.That single statement nullified the police officer’s evidence entirely. In other words, this officer was given the spousal consent and sample signatures and was asked to confirm if they were made by the same author. She carried the examination without confirming who made the sample signatures.
22.Needless to say, this Court cannot place any reliance on such evidence. It fails to meet the threshold of civil standard of proof.