• The couple got married in 1956 under Gusii customary law and their marriage was dissolved on June 3, 2003, in Eldoret.
• Man wanted equal sharing of an outstanding loan advanced by the ICDC towards a joint venture, but woman says they had already separated.
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A court has allowed an elderly woman to be the sole owner of matrimonial property valued at Sh6 million, 17 years after their marriage was dissolved.
The couple got married in 1956 under Gusii customary law and their marriage was dissolved on June 3, 2003, in Eldoret.
The husband then moved to the High Court seeking orders for division of the matrimonial property with his estranged wife.
The court dismissed his application and ruled that the 30 acres matrimonial property should be solely owned by the ex-wife.
Judge George Kimondo ruled the husband had retained or sold, without the concurrence of his wife, two properties in Langas and Ndalat both of which were registered in her name.
The trial court held that since the appellant had taken the entire benefit of those properties, he benefited in excess of his claim of the suit property. Based on this, the trial court held that the ex-wife was entitled to retain the entire portion of the suit property.
That was when the man moved to the Court of Appeal to challenge the decision of the High Court. But the appellate court dismissed his appeal and agreed with the High Court ruling.
Judge Jamila Mohammed ruled that bearing in mind that the evidence showed the husband alienated his former wife from the Ndalat and the Langas properties without recourse and for his own benefit, then he was not entitled to the suit property.
“I find it only fair that this is taken into consideration when determining what portion of the suit property the appellant should be awarded. This leads me to the inescapable conclusion that even if the appellant was entitled to an equal share of the suit property, the fact that he alienated the Ndalat property and the Langas property means that he cannot now claim to be entitled to a share of the suit property,” the judge ruled.
Justice Hannah Okwengu ruled that the former wife was entitled to retain the suit property, saying the High Court took into consideration that although the suit property was matrimonial property, the husband had already converted some other matrimonial properties to his own use by disposing of them without recourse of the ex-wife.
On the issue of cost, the judges noted that the dispute between the parties had been a long-standing one and it arose out of termination of their marriage, so each will bear their own cost.
In the case, the husband had claimed that during the subsistence of their marriage, he and his estranged wife acquired various properties as well as various household goods worth Sh90,660.
He wanted these properties to be declared as jointly owned by the parties and that the properties be shared between him and his former wife in equal parts.
He also prayed for an equal sharing of an outstanding loan advanced by the Industrial Commercial Development Corporation (ICDC) that had been utilised towards the parties’ joint business.
However, the ex-wife opposed the loan by her ex-husband, arguing that when the applicant took the facility from ICDC, she and the appellant had already separated and she was living in Kampala.
She contended that she could, therefore, not be held responsible for the payment of the loan. She further stated that the suit property solely belonged to her since she had purchased it out of her own efforts.
The wife claimed that during the subsistence of the marriage she had acquired a half-acre plot in Langas as well as a plot in Eldoret West known as Eldoret in Ndalat, which were sold by her ex-spouse without her consent.
Edited by Henry Makori