How courts have resolved matrimonial disputes

Courts have for years settled differences between husbands and wives over the sharing of matrimonial property after the collapse of their marriages.

As recently observed by appellate judges Philip Waki, Patrick Kiage and Festus Azangalala, it was murky for the courts to navigate the torrid waters of broken marriages because the applicable law was archaic, having been enacted in England in 1882 and inherited as a statute of general application in Kenya.

That was the Married Women’s Property Act, 1882.

This was a piece of legislation that Britain gradually found wanting and made legislative changes in 1967, 1970, and 1973 to bring justice to the shattered matrimonial home.

However, Kenya continued to use the old law.

“Kenya soldiered on, painfully groping for an acceptable balance even when jurisprudential precedent dictated otherwise,” the judges said in a decision delivered on March 3, 2017.

FAMILY DISPUTE

It was only after the 2010 Constitution was promulgated that certain adjustments touching on family and property were introduced.

Parliament then rose to the occasion and enacted The Matrimonial Property Act, 2013, which received assent on December 24, 2013 and became effective on January 16, 2014.

The courts have since then rendered several decisions that seek to give meaning to both the Constitution and the various laws governing marriages and what needs to be done in cases of divorce and the need to divide property.

Last November, appellate judges Wanjiru Karanja, GBM Kariuki and Jamila Mohammed gave actress Elizabeth Wanjiru a reason to smile when they found that she had a rightful beneficial interest in a multimillion shilling matrimonial home auctioned 30 years ago.

PROPERTY
The judges said the sale and transfer of the contested property by Housing Finance Company of Kenya Ltd to Mugo Muiru Investments Ltd was illegal and ignored Ms Wanjiru’s equitable interest in the property.

The property was auctioned after Ms Wanjiru’s ex-husband and former Ugandan minister of State for East African Affairs, Shem Bageine, took a loan of Sh600,000 using the Loresho property as security and failed to repay.

He walked out of the marriage in 1981 and returned to Uganda to build his career after the government revoked his Kenyan citizenship.

“Ms Wanjiru’s interest in the matrimonial home was an overriding, equitable and unregistered interest.

"Such interest entitled her to remain with the property. She should have at the very least been informed of the sale,” the judges said.

They cancelled the transfer of the property and directed Housing Finance to reimburse Mr Muiru the purchase price without interest.

ASSETS
In appreciating that marriage is not a punishment to a spouse, and the sharing of property, maintenance, and responsibility should be done in the most equitable and fair manner, some parties have had to contend with less than they had bargained for in court.

The Court of Appeal judges, on April 2016, set a precedent in the matrimonial property dispute when they denied a woman a share of her ex-husband’s hidden assets.

Appellate judges Wanjiru Karanja, Mohammed Warsame and Festus Azangalala upheld the decision of the High Court, which had initially been made in favour of businessman Andrew Munene Gachengo.

The judges allowed Mr Gachengo, who had concealed independently acquired assets from his spouse, to keep them during divorce proceedings, thus setting a precedent in matrimonial property disputes.

“The record does not show that Mary Goretti Nyambura Kanyi demonstrated to the satisfaction of the court that her contribution towards other family expenses, in some way had enabled Mr Gachengo meet his obligation to the seller of the said property and to the mortgage company,” the judges ruled.

MAINTENANCE
Similarly, appellate judges Hannah Okwengu, Daniel Musinga and Gatembu Kairu also granted relief to Philip Moi when they set aside a High Court order directing him to pay his estranged wife Sh30 million maintenance and give her a house worth Sh60 million.

Interestingly, the courts have tended to frown against cultural practices in marriages that do not conform to the Constitution and the modern laws on marriages and property sharing.

Agnes Kwamboka Ombuna’s bid to inherit property from a fellow woman, Birisira Kerubo Ombuna, had been declined by both the High Court and the appellate court, after establishing that Agnes was not married to Birisira, in a woman to woman marriage practised under Gusii customary law.