• A judgment delivered on November 11 by Justice Loise Komingoi concurred with the plaintiff's argument that it was a matrimonial property.
• Komingoi ruled that since the payments the plaintiff made were clearly for purposes of the mortgage, Kenya Commercial Bank could not term her as a stranger.
Image: FILE
It all started as a joint venture between a husband and wife who decided to shop for a house in 2007.
They finally settled on a house in the leafy suburbs of Lavington.
They agreed that the property would be registered and owned jointly.
A deposit of 10 per cent was then paid as is the practice and it was agreed that a loan facility be taken for the balance.
But contrary to the agreement and under unclear circumstances, the property was registered in the name of the husband only and a loan was taken for the balance of the mortgage.
Within a few years, the husband had defaulted on repayments and relocated to Dubai, leaving the wife to step in and pay the loan in full.
During the payment of the mortgage (more than 14 years), Kenya Commercial Bank denied the wife access to the loan statements or the status of the loan, despite the fact that she was the one paying.
Even after paying the loan in full, the bank further declined to allow her to discharge and redeem the property.
In her evidence, the plaintiff told the court that she supplemented her husband's repayments in respect of the monthly mortgage from the onset.
The husband was then unable to service the mortgage and the bank came calling with demand notices.
In 2014, the woman moved to court. She filed a case at the Environment and Land Court seeking a variety of orders, key being that her interest be noted on the title to protect her investment in the property and her contribution.
Her husband did not respond to the case, but Kenya Commercial Bank, the financier that had advanced the loan to the husband, defended the case all the way to a full hearing.
During the trial, the bank distanced itself from the woman's predicament, referring to her as a "stranger". It insisted that it had no obligation to disclose anything to the plaintiff in respect of the loan status and repayments or agree to redeem and discharge the property to her, as she was not the account holder.
The bank said the only person it knew and could interact with was her husband. The bank also said that if he failed to appear to apply for a discharge of the property, it would transfer the same to the Unclaimed Financial Assets Authority.
The plaintiff's husband did not participate in the case, even though he had been served. He also did not go to Kenya Commercial Bank to discharge the property.
The plaintiff, who was represented by lawyer Samuel Makori, argued that she was protected under the Constitution, the Matrimonial Causes Act, the Land Act and the Land Registration Act.
While citing Article 45 of the Constitution in support of the plaintiff, Makori argued that parties to a marriage were entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.
He further argued that since the plaintiff made payments in respect of the mortgage for more than 81 months amounting to more than Sh21 million, Kenya Commercial Bank owed her a duty of care.
Makori submitted that the rights of the plaintiff, both as a spouse and as a majority contributor to the acquisition of the suit property, conferred on her an equitable and beneficial interest.
A judgment delivered on November 11 by Justice Loise Komingoi concurred with the plaintiff's argument that it was a matrimonial property.
The judge further agreed that the registration of the property in the name of the husband only was contrary to the agreement by the parties. Komingoi said that the Land Act, 2012, provided for sufficient safeguards for the plaintiff to protect her investment in the property.
The judge said although the property was registered before the Land Act was passed, the beneficial interests of the plaintiff were protected under common law.
Komingoi ruled that since the payments the plaintiff made were clearly for purposes of the mortgage, Kenya Commercial Bank could not term her as a stranger.
“In conclusion, I find that the plaintiff has proved her case as against the defendants on a balance of probabilities. That a declaration is hereby issued that the plaintiff has an equitable and registrable interest in the suit property and is entitled to have her interest noted in the property”, the judge ruled.
The court also issued a declaration that the woman is entitled to redeem the suit property.
Edited by A.N