Consent under data protection law is purpose-specific and time-sensitive: The Case of Moja Expressway Company v Ndung’u (Civil Appeal E673 of 2024) [2025]

 

Case Brief: Moja Expressway Company v Ndung’u (Civil Appeal E673 of 2024) [2025]

Procedural History

The Respondent lodged a complaint before the Office of the Data Protection Commissioner (ODPC) alleging unlawful use of his personal data after termination of employment. The ODPC found that a data breach had occurred and awarded Kshs. 500,000 in compensation.

The Appellant appealed to the High Court, challenging both the finding of breach and the award of damages.

 

Material Facts

• The parties were in an employer–employee relationship.
• During his employment, the Respondent consented to the use of his image for the Appellant’s promotional content on social media platforms.
• The Respondent resigned in November 2022, thereby terminating the employment relationship.
• In October 2023, the Appellant published promotional content featuring the Respondent’s image.
• The Respondent filed a complaint before the ODPC alleging unlawful processing of personal data.
• The Appellant argued that the Respondent had orally consented to the use of his image and had not withdrawn such consent.

The ODPC held that the post-employment use of the Respondent’s image constituted a data breach and awarded Kshs. 500,000 in compensation.

 

Issues

1. Whether valid consent existed for the continued use of the Respondent’s image after termination of employment.
2. Whether the ODPC’s award of Kshs. 500,000 in damages was justified.

 

Holding

1. The Court held that valid consent did not exist for the post-employment use of the Respondent’s image.
2. The Court upheld the ODPC’s award of Kshs. 500,000 as reasonable and warranted.

 

Court’s Reasoning

1. On Consent

The Court emphasized that consent under data protection law is context-specific and not perpetual.

While the Respondent had consented to the use of his image during employment, such consent was intrinsically linked to the employment relationship. During employment, the commercial use of an employee’s image may be compensated through salary or other employment benefits.

Upon termination, however, continued commercial use of the Respondent’s image constituted exploitation outside the employment framework. The Court held that such use required fresh consent or a separate contractual arrangement.

The absence of renewed consent rendered the continued use unlawful.

 

2. On Damages

The Court noted that compensation for data breaches often involves intangible harm, including emotional distress, reputational injury, or frustration, which cannot be precisely quantified.

Relying on precedent, including:

• MWK & Another v Attorney General & 3 Others; and
• Kamande v Nation Media Group,

the Court affirmed that where harm is established but difficult to measure, courts are entitled to award reasonable compensation.

The Court found no error in the ODPC’s assessment and upheld the award of Kshs. 500,000.

 

Ratio Decidendi

Consent to process personal data is not indefinite and must align with the specific context and purpose for which it was granted. Where the underlying circumstances materially change — such as termination of employment — fresh consent is required for continued processing, particularly where such processing amounts to commercial exploitation.

 

Obiter Dicta

The judgment underscores the evolving recognition of personal data as an economic and proprietary interest capable of commercial exploitation. Organizations must treat consent as dynamic and purpose-bound rather than static.

 

Significance

This decision reinforces the principle that:

• Consent under data protection law is purpose-specific and time-sensitive.
• Post-employment use of personal data may constitute unlawful processing absent renewed consent.
• The ODPC has authority to award compensatory damages for data breaches.

The case is instructive for employers, data controllers, and legal practitioners on the scope of lawful processing and the risks associated with continued use of personal data beyond the original contractual framework.

 

Emerging Jurisprudence on Matrimonial Property and the Law of Succession in Kenya

By Ogeka, Advocate

Introduction

The intersection of matrimonial property rights and succession law has become one of the most contested areas in Kenyan jurisprudence. Since the enactment of the Matrimonial Property Act 2013 – Empirical review of a decade of decided cases and the continued application of the Law of Succession Act (LSA), courts have grappled with reconciling equitable distribution during marriage with the devolution of property upon death. This has significant implications for spouses, families, and estate planning, particularly in a legal landscape shaped by constitutional equality and evolving societal norms.

1. Matrimonial Property under Kenyan Law

The Matrimonial Property Act, 2013 (MPA) defines matrimonial property as property acquired during the subsistence of a marriage and subject to joint ownership based on contribution — monetary and non-monetary. Kenyan courts have reiterated that:

• A property acquired during marriage, even if registered in one spouse’s name, is prima facie held in trust for both spouses.
• Contribution — including domestic work, childcare and management of family assets — is a key determinant of entitlement upon division.

Court decisions emphasise that mere registration in the name of one spouse does not negate the other’s interest if there is demonstrable contribution. Jurisprudence is evolving on the scope of contribution and the evidentiary threshold required, mirroring global trends towards recognising non-financial contributions in family law.

2. The Succession Law Interface

The Law of Succession Act governs devolution of property upon death. Historically, succession law and matrimonial property law operated in silos: the former regulating inheritance and estate administration, the latter focusing on property rights between spouses during life or at divorce. However, emerging case law now confronts their convergence.

In FEO v ACO (Estate of the Late BPO) [2024] KEHC 14889 (KLR), the High Court held that the concept of matrimonial property, strictly speaking, does not organically belong in succession causes. The court reasoned that matrimonial property rights arise during a marriage and, upon death, transform into rights enforceable only through succession — not as an independent cause of action. Critically, it underscored that a claim to matrimonial property ought ideally to be determined before death to avoid prejudice to other heirs.

Similarly, in In re CKN & ENM (Deceased) [2026] KEHC 332 (KLR), the High Court clarified that once a spouse dies before a matrimonial claim is substantiated, any rights they may have had under the MPA fall to the deceased’s estate — and must be pursued through succession proceedings.

3. Procedural and Jurisdictional Challenges

Recent decisions highlight procedural complexities:

• In LWM v Kioko & 2 others [2024] KEHC 8270 (KLR), a matrimonial property claim filed post-death without timely substitution of parties was dismissed for abatement, illustrating the importance of procedure in preserving substantive rights.
• Cases such as KW v Estate of KW [2023] KEHC 23180 (KLR) emphasise that courts may redirect spouses to probate causes rather than entertain matrimonial actions once a spouse has died, reaffirming that the probate court has exclusive jurisdiction over estate matters.

These decisions underscore that practitioners must strategically plan litigation — ensuring matrimonial property issues are addressed while both spouses are alive or immediately upon death within proper succession proceedings.

4. Constitutional Dimensions and Emerging Issues

A notable emerging trend pertains to gender equality in succession rights. In Dennis Kivuti Mungai vs Attorney General (2025), the High Court declared Section 29(c) of the Law of Succession Act unconstitutional for imposing unequal dependency requirements on widowers compared to widows. The court held that this discriminatory burden violated constitutional equality provisions. This decision signals an increasing judicial willingness to align succession statutes with constitutional norms of gender equality.

5. Theoretical and Policy Considerations

The apparent tension between matrimonial property rights and succession rights calls for doctrinal and legislative harmonisation. Academic commentary highlights inconsistencies between the Matrimonial Property Act and the Law of Succession Act, particularly in polygamous families where spousal contributions are not adequately reflected in intestate distribution provisions. Without reform, the current framework may fail to protect the contributions of spouses — especially women — in both marital and post-death contexts.

Conclusion

Jurisprudence on matrimonial property and succession in Kenya is at a critical inflection point. Courts are increasingly clarifying that:

• Matrimonial property rights do not automatically transfer into succession causes but must be validated during life or efficiently transitioned into estate claims.
• Procedural compliance is crucial to preserving rights after death.
• Constitutional principles, particularly gender equality, now inform succession jurisprudence.

For legal practitioners and clients alike, the evolving case law underscores the necessity of early action, careful litigation planning, and estate planning that anticipates these intersecting issues. As Kenyan courts further refine these doctrines, stakeholders must remain attentive to both statutory developments and judicial interpretations to ensure equitable outcomes.

This publication is intended for informational purposes for members of the legal sector and public and does not constitute legal advice.

Microfinance Institutions and the Charging of Property in Kenya: A Comprehensive Legal Brief for Public Awareness

Overview

In Kenya’s expanding credit market, microfinance institutions (MFIs) increasingly require borrowers to pledge property — particularly land and buildings — as security for loans. A common public concern is whether such institutions can lawfully charge and auction property in the event of default.

Under Kenyan law, the answer is yes, provided strict legal procedures are followed. This brief explains the governing legal framework, enforcement process, borrower safeguards, and the consequences of non-compliance.

1. Legal Basis for Charging Property

What is a Charge?

A charge is a legal interest created over property to secure repayment of a debt. It does not transfer ownership to the lender but gives the lender a right to recover the loan from the property if the borrower defaults.

Charges over land are primarily governed by:

• Land Act
• Land Registration Act

Security over movable assets (such as vehicles, livestock, or machinery) is regulated under the Movable Property Security Rights Act.

Microfinance institutions operate under the Microfinance Act and, where deposit-taking, are regulated by the Central Bank of Kenya.

2. Can Microfinance Institutions Legally Charge Property?

Yes. Kenyan law allows MFIs to accept property as collateral, including land and buildings, so long as:

• The borrower voluntarily consents;
• The charge instrument is properly executed;
• The charge is registered at the relevant Land Registry; and
• The institution complies with applicable regulatory requirements.

Registration is critical. Without registration, a charge over land cannot be enforced against third parties.

Courts have affirmed that once a valid charge is created and registered, the lender acquires statutory rights of enforcement in the event of default.

3. When Can Property Be Auctioned?

An MFI cannot seize or sell property arbitrarily. The right to sell arises only after strict compliance with statutory procedures under the Land Act.

(a) Default Must Occur

The borrower must be in default — typically through failure to make loan repayments or breach of contractual terms.

(b) Three-Month Statutory Notice (Section 90, Land Act)

Before any sale, the lender must issue a written notice giving the borrower at least three months to remedy the default. The notice must clearly state:

• The nature of the default;
• The amount required to correct it;
• The consequences of failing to comply.

If this notice is defective or not served, the sale process becomes unlawful.

(c) Forty-Day Notice to Sell (Section 96, Land Act)

If the borrower does not remedy the default within three months, the lender must issue a further 40-day notice of intention to sell before proceeding with auction.

Both notices are mandatory. Courts consistently invalidate sales where these steps are not followed.

4. Duty of Care and Valuation

Section 97 of the Land Act imposes a legal obligation on the lender to:

• Obtain a professional valuation before sale;
• Ensure the property is sold at the best reasonably obtainable price.

In Omingo v Rafiki Microfinance Bank Limited & Another, the High Court emphasized that failure to obtain proper valuation may breach the statutory duty of care and expose the lender to liability.

Selling property at a gross undervalue may result in the sale being challenged or damages awarded.

5. Borrower Protections

Kenyan law provides important safeguards for borrowers:

(a) Right of Redemption

Even after default, the borrower retains the right to redeem the property by paying the outstanding debt before the sale is finalized. This principle is protected under Article 40 of the Constitution of Kenya.

(b) Spousal Consent for Matrimonial Property

If the property is matrimonial property, written consent from the spouse is required before it can be charged. Absence of such consent may render the charge invalid.

(c) Right to Challenge Irregular Sales

Borrowers may seek relief from the High Court of Kenya where:

• Statutory notices were not properly served;
• Valuation was not conducted;
• The sale process was irregular;
• The property was sold at a gross undervalue.

Courts generally do not stop a sale merely because a borrower is in financial difficulty. However, procedural defects are taken seriously and often result in injunctions.

6. Regulatory Considerations

Deposit-taking MFIs must be properly licensed and regulated by the Central Bank of Kenya. Institutions acting outside their regulatory mandate may face sanctions or enforcement challenges.

Proper licensing strengthens the enforceability of security rights and protects both lenders and borrowers within the financial system.

7. Key Takeaways for the Public

For Borrowers:

• Ensure you understand the terms before signing a charge document.
• Confirm whether the property is matrimonial and whether spousal consent is required.
• Act promptly if you receive a statutory notice.
• Seek legal advice immediately if procedures appear irregular.

For Microfinance Institutions:

• Ensure charges are properly drafted and registered.
• Strictly comply with statutory notice timelines.
• Obtain professional valuations before sale.
• Maintain documentary evidence of compliance.

Conclusion

Microfinance institutions in Kenya are legally permitted to charge and auction property used as collateral. However, this power is not absolute. It is subject to clear statutory safeguards designed to balance the lender’s right to recover debt with the borrower’s constitutional property rights.

Any sale conducted without compliance with the Land Act’s notice requirements, valuation obligations, and procedural safeguards may be declared unlawful.

Public awareness of these legal standards is essential to ensuring fairness, accountability, and transparency in Kenya’s credit market.

This brief is intended for general public information and does not constitute legal advice.

 

Guide: Understanding Land Titles in Kenya

Understanding Land Titles in Kenya

Owning property is a significant investment, and a title deed is the most important document in confirming your ownership. This update explains the different types of land titles issued in Kenya and what they mean, especially when property changes hands.

What Is a Title Deed?

Under the Land Registration Act, 2012, a title deed is conclusive proof of ownership of land in Kenya. It is the primary legal document in any property transaction. When land is sold, the ownership details are formally updated from the seller (vendor) to the buyer (purchaser), reflecting the change in ownership.

 

Types of Titles Before 2012

Before the 2012 land law reforms, land ownership was governed by several different laws (now repealed). These laws provided for various types of titles, including:

• Absolute Title Deed – Issued for freehold land. Upon transfer, a new title deed would be issued to the new owner.
• Certificate of Lease – Issued for leasehold land. A new title would also be generated upon transfer.
• Certificate of Title – In this case, the same title document was updated to reflect the new owner instead of issuing a new one.
• Indenture and Grants – Issued under earlier laws for leasehold or government-granted land.

You may still encounter these titles today, as they remain legally valid.

 

Titles After 2012 Reforms

In 2012, Kenya introduced major land law reforms through the Land Act and the Land Registration Act. These laws streamlined land registration and reduced the various categories of titles into two main types:

• Certificate of Title – Issued for freehold land.
• Certificate of Lease – Issued for leasehold land.

Sectional Titles (Apartments and Units)

The Sectional Properties Act, 2020 introduced sectional titles for individual units within a building, such as apartments or flats. These titles are issued either as a Certificate of Title (for freehold property) or a Certificate of Lease (for leasehold property).

For these modern titles, a new title document is issued each time the property is transferred to a new owner.

 

Understanding IR, CR, and LR Numbers

Older titles may bear:

• CR Numbers (Certificate of Registration)
• IR Numbers (Instrument of Registration)

These were issued under repealed laws but remain valid.

Currently, properties are identified using Land Reference (L.R.) Numbers, which are assigned based on the registration unit, block, section, and parcel details as recorded by the Registrar.

 

Our Commitment to You

We recognize the importance of securing valid title deeds for all our clients. We continue to work closely with various Land Registries across the country to facilitate the processing and issuance of titles.

If you have not yet collected your title deed or completed the necessary documentation, we encourage you to regularize your records to ensure your ownership is fully perfected in accordance with the law.

Should you require clarification regarding your specific title, our team is available to assist.

Legal Advisory: Replacement of a Lost Title Deed in Kenya

Intro 

The loss of a title deed is a serious legal matter in Kenya, as a title deed is the primary evidence of ownership of land. The process for replacing a lost or destroyed title deed is governed principally by the Land Registration Act, 2012, and must be handled with care to prevent fraud, duplication, or future disputes.

This advisory outlines the lawful procedure, key requirements, and practical considerations involved in replacing a lost title deed in Kenya.

1. Reporting the Loss

The first legal step is to report the loss or theft to the police. The registered proprietor must obtain a police abstract or Occurrence Book (OB) reference, which formally records the circumstances of the loss. This document is mandatory for any application to the Land Registry.

2. Official Land Search

An official land search should be conducted at the relevant Land Registry or through the e-Citizen platform. The purpose of the search is to confirm:

• The identity of the registered proprietor
• The correct parcel details
• Whether the land is subject to any encumbrances, cautions, or restrictions

This step also serves as a safeguard against fraudulent replacement.

3. Statutory Declaration

The applicant is required to swear a statutory declaration (affidavit) before a Commissioner for Oaths or an advocate. The declaration should clearly state:

• The applicant’s ownership of the land
• The circumstances under which the title was lost or destroyed
• Confirmation that the title has not been charged, sold, or otherwise disposed of

Providing false information in the affidavit constitutes a criminal offence.

4. Application for Replacement

The registered proprietor must complete Form LRA 12 (Application for Replacement of Certificate of Title or Lease) and submit it to the Land Registry together with:

• Police abstract
• Statutory declaration
• Official land search
• Certified copies of identification documents and KRA PIN
• Passport-size photographs
• Any additional documents required by the Registrar

For corporate entities, a board resolution and company registration documents are typically required.

5. Gazette and Public Notice

Upon receipt of the application, the Land Registrar will cause a notice of the lost title to be published in the Kenya Gazette and, in most cases, a national newspaper.
This initiates a statutory objection period of not less than sixty (60) days, during which any person with a legitimate interest in the land may lodge an objection.

6. Objection Period and Determination

If no objection is raised within the prescribed period, or if objections raised are resolved in favour of the applicant, the Registrar proceeds to authorize the replacement. Where disputes arise, the matter may be referred for further investigation or determination.

7. Issuance of Replacement Title

After compliance with all legal requirements, the Land Registrar issues a replacement title deed, and the land register is duly updated.
It is important to note that if the original title is later recovered, it must be surrendered to the Land Registrar, as possession of two valid titles over the same parcel is unlawful.

Practical Considerations and Legal Cautions

• Applicants are advised to register a caution or restriction immediately upon discovering the loss to prevent fraudulent dealings during the replacement process.
• The replacement process may take several months, largely due to the mandatory public notice period.
• Where land is of high value, subject to disputes, or previously charged, legal counsel is strongly recommended.

Conclusion

While Kenyan law provides a clear mechanism for replacing a lost title deed, strict compliance with statutory requirements is essential. The process is intentionally rigorous to protect property rights and maintain the integrity of the land registration system. Property owners should act promptly, transparently, and with appropriate legal guidance to avoid delays or complications.

Sections 70(2), 75 and 76) of the Land Act

Based on the Land Act (No. 6 of 2012) of Kenya, specifically within Part VI: Leases (Remedies and Relief), Sections 75 and 76 govern the process by which a lessor (landlord) can forfeit a lease and the relief available to the lessee (tenant) against that forfeiture. 

Here is a breakdown of the sections requested:

1. Section 75: Notice before Forfeiture 

This section acts as a procedural safeguard for the lessee. A lessor cannot automatically evict a lessee or forfeit a lease for breach of covenant (including non-payment of rent) without following this process. 

• Notice Requirement: The lessor must serve a notice on the lessee specifying the particular breach (e.g., unpaid rent or broken covenant).
• Remedy Period: The notice must require the lessee to remedy the breach within a reasonable time.
• Court Action: If the lessee fails to remedy the breach within the specified time, the lessor may then commence an action in court for forfeiture. 

2. Section 76: Relief against Forfeiture

This section gives the Court discretionary power to prevent the harsh application of forfeiture, guided by principles of equity. 

• Court Discretion: In an action for forfeiture, the court may grant relief to the lessee on such terms as it deems just.
• Equitable Principles: The court will consider the conduct of both parties, the nature of the breach, and whether the breach has been remedied.
• Effect: If relief is granted, the lease continues as if the breach had never occurred. 

3. Contextual Notes on Related Sections

• Section 73 (Lessor's right of forfeiture): Establishes the right to forfeit if rent is unpaid for twelve months or if a covenant is breached.
• Section 74 (Effect of forfeiture on subleases): Provides that forfeiture of a head lease does not automatically destroy a sub-lease; the court can protect sub-lessees.
• Section 70(2) (Land Registration Regulations): While not in the main Land Act 2012, Regulation 70(2) of the Land Registration (General) Regulations 2017 requires that an application for registration of a charge must be supported by a land rent clearance certificate. 

Summary of Process:

1. Breach: Lessee fails to pay rent/covenant.
2. Section 75: Lessor serves a notice specifying the breach.
3. Action: If not remedied, Lessor sues for forfeiture.
4. Section 76: Court may grant relief (e.g., time to pay) to the lessee to avoid losing the lease.