The High Court in Nairobi ruled that a house acquired by a couple during their courtship did not constitute matrimonial property, awarding sole ownership to the man after finding that his former wife had not proved any contribution towards its purchase.
Justice Robinson Ondieki Kebabee of the Milimani High Court Family Division ruled that House No. 52 at Riverfront Estate, situated on Title No. 28318/16 in Ruiru, was acquired before the parties were married and that the former wife had failed to establish a beneficial interest in the property.
The judgment followed a dispute between Fletcher Alexander Tembo and his former wife, Gladys Kinanu, whose marriage lasted about nine months.
The couple married on February 20, 2021, at the Pentecostal Evangelical Fellowship of Africa in Ruiru and did not have children.
Tembo told the court that the property had been purchased before their marriage, with a sale agreement executed on July 23, 2019, between the couple and Mahiga Homes Limited.
According to the court, Tembo, who had come to Kenya as an expatriate, paid the purchase price, with the final instalment made in June 2021, several months after the parties had married.
He subsequently filed an Originating Summons dated July 8, 2024, seeking a declaration that he was the sole owner of the property and an order directing that it be registered in his name.
In the alternative, he sought an order compelling Kinanu to execute a unilateral liability release agreement to discharge any interest she claimed in the property.
Kinanu opposed the application and sought dismissal of the case, arguing that the property should be registered in her name.
During cross-examination, however, Kinanu admitted that she had not contributed any money towards the purchase of the house.
She told the court that her contribution was non-monetary, stating that she had helped identify the property while Tembo was outside the country and had acted as its caretaker.
Justice Ondieki considered whether such contribution was sufficient to confer a beneficial interest in the property, noting that matrimonial property disputes must be determined on the basis of the contribution made by each spouse.
The judge relied on previous decisions, including the Court of Appeal’s decision in Echaria v Echaria and the Supreme Court’s decision in JOO v MBO & 2 Others, which established that marriage by itself does not automatically entitle a spouse to an interest in property.
The court also cited Article 45(3) of the Constitution, which provides for equality of spouses during marriage and at its dissolution.
However, the judge ruled that constitutional equality does not mean that matrimonial property must automatically be divided equally between spouses regardless of their contribution.
Justice Ondieki further referred to the Court of Appeal decision in PNN v ZWN, in which the court cautioned against treating the 50:50 division of matrimonial property as an automatic entitlement following the dissolution of a marriage.
“The reality remains that when the ship of marriage hits the rocks, flounders and sinks, the sad, awful business of division and distribution of matrimonial property must be
proceeded with on the basis of fairness and conscience, not a romantic clutching
on to the 50:50 mantra,” ruled the court.
” It is not a matter of mathematics merely as in the splitting of an orange in two for, as biblical Solomon of old found, justice does not get to be served by simply cutting up a contested object of love, ambition or desire into two
equal parts.”
The judge found that the decisive factor in the present case was that the property had been acquired in 2019, when the parties were still courting.
Although the final instalment was paid in June 2021, after the marriage, the court held that this did not transform the property into matrimonial property.
The court further found that Kinanu’s role in scouting for the property and subsequently acting as a caretaker did not amount to sufficient contribution to establish a beneficial interest in the house.
“Consequently, the subject property did not form a Matrimonial Property, as it were,” Justice Ondieki ruled.
The court declared House No. 52 of Riverfront Estate on Title No. 28318/16 in Ruiru not to be matrimonial property and declared Tembo its sole owner.
The judge ordered that the property be registered in Tembo’s name and directed Kinanu to execute the unilateral liability release agreement to discharge any interest she had in the property.
Each party was ordered to bear their own costs.
Email your news TIPS to Editor@Kahawatungu.com — this is our only official communication channel
