Our hands are tied, court tells Kenyan woman over 'prenup' with Austrian lover
A pre-nuptial agreement, commonly referred to as a 'prenup', is an agreement entered into by couples before marriage.
A Kenyan woman has been dealt a blow after the High Court refused to intervene in a dispute over a prenuptial agreement between her and her estranged Austrian spouse.
Malindi High Court judge Stephen Githinji said Kenyan courts were mere bystanders in the situation because the prenuptial agreement had been executed in Austria.
According to the judgement, the mere fact that the petitioner is of Kenyan origin and may still be a Kenyan and that the properties she is claiming are in Kenya does not in itself give the court jurisdiction over the matter nor does it entitle her to ownership of the said properties.
"The rightful court of jurisdiction made its decision and the issue cannot be revisited afresh here or even appealed. The run is in Austria and the courts in Kenya are mere spectators," said Justice Githinji.
As a result, the woman, identified in court proceedings as DNK, lost a matrimonial case against her ex-husband GS.
A pre-nuptial agreement, commonly referred to as a 'prenup', is an agreement entered into by couples before marriage.
It is a legally binding agreement between a couple to determine how matrimonial property will be divided if the marriage collapses.
Under Kenyan law, Section 6(3) of the Matrimonial Property Act, 2013 recognises agreements entered into by couples intending to marry.
It provides that parties to a proposed marriage may enter into an agreement before their marriage to determine their property rights.
Subsection 4 of the Act gives the court the power to set aside the agreement if it finds that the agreement was influenced by fraud or coercion or is manifestly unjust.
In this particular case, the court was informed that DNK and GS signed the in 2012 before their marriage took place on June 12, 2022.
Same year of their marriage
In 2022, the same year of their marriage, DNK moved to court seeking to renege on the agreement saying she signed the document without properly understanding its content, which was written in a foreign language she was not familiar with.
"GS made me sign a prenuptial agreement that he had authored without my involvement. The content was written in a foreign language that I was not conversant with at the time," she said in her court documents.
She therefore stated that she wished to repudiate and rescind the said agreement entered into between them on May 25, 2012, as it was one-sided, unfair and manifestly unjust as she was not in a position of power and the said agreement was entered into contrary to the provisions of the law.
She further stated that GS acquired a piece of land and established a lodge in Kilifi County which she was instrumental in setting up and once the business took off, she quit her job and concentrated on the lodge business as she was one of the directors.
The woman added that GS, with her help, used the profit from the lodge to buy three more prime properties in the same county, with the agreement that the properties would be registered in GS's name and held in trust for her.
Court records show that the couple also built their matrimonial home in 2013.
"We lived in this matrimonial home until mid-2019 when I had to leave due to GS's cruelty. GS has been pushing to sell the properties without involving me," she alleged.
The woman asked the court for a declaration setting aside the prenuptial agreement concluded in Austria in 2012 and for a declaration that all the properties she had attached to the court papers, which were registered in the name of GS, were held beneficially and/or in trust for her.
She also sought a declaration that the three properties were jointly purchased but registered in the husband's name and are also partly held in trust and for her beneficial interest and that she is entitled to the said properties as GS maintains the properties in Austria.
Award her two of the properties
Alternatively, the wife asked the court to find that GS held the income from one of the properties and to award her two of the properties.
"An order do issue declaring that the defendant is accountable to the plaintiff in respect to all income derived from the said properties," she said.
DNK also sought an injunction restraining the defendant from selling or disposing of the properties, as well as an injunction requiring GS to provide a comprehensive list of all properties, shares and bank accounts owned and held by him, both locally and abroad, to be divided equally between them.
"An order do issue that the properties and the income from the same be settled in proportions aforesaid or as the court may order," she said.
In response, GS argued that the case was frivolous, lacked merit, failed to meet the legal and evidentiary threshold for the relief sought and constituted an abuse of process.
He said their marriage was dissolved by the Austrian court in March 2022, following a petition he filed in that court.
"The allegation that the prenuptial agreement between us is one-sided, unfair or manifestly unjust or was made without the plaintiff’s involvement or understanding is an afterthought as the same was voluntarily executed upon full understanding of the terms therein," he said.
According to GS, the agreement was executed in the presence of their respective witnesses, a notary and an interpreter who signed the said agreement to certify that the contents and terms were translated and interpreted to the plaintiff as shown on the contract in the German and English versions.
He added that on May 24, 2022, the Regional Court Dornbin, Department 13 of Austria, ruled that the Prenuptial Agreement was valid and legally effective and that no appeal had been lodged against the said ruling.
GS said that the court has no jurisdiction over the validity of the said contract as it is governed by Austrian law, where they both reside, were married, divorced and currently live.
"The woman did not contribute directly or indirectly to the acquisition, improvement and or maintenance of the properties nor were the same registered in my name to hold in trust for the petitioner or at any time matrimonial property," said GS.
In a rejoinder, the woman reiterated that what was translated to her at the time of the execution of the agreement was not what was contained in the translated copy of the agreement presented to her in 2018 during the divorce proceedings.
Vitiating factors
"The threshold of setting aside a contract on equitable ground is the existence of any or all of the vitiating factors including mistake, misrepresentation, coercion and or undue influence," she submitted, adding that she was coerced and did not get independent advice thus the same should be held invalid and set aside.
She rebutted GS's claims, saying that the properties had been bought through joint efforts.
GS said the prenuptial agreement was governed by Austrian law, so the parties intended that questions of its validity should be decided by the Austrian court.
"The wife is bound by the terms of the contract and cannot seek to amend it or walk away from it," he said.
Justice Githinji noted that prenuptial agreements are contractual in nature and are subject to the scrutiny of the court if allegations of fraud, duress or manifest injustice are made by a party to the agreement.
However, the judge noted that the court would not intervene simply because the terms of the agreement are not balanced and were more favourable to one party than the other.
Before reaching a decision on the merits of the case, the judge first questioned whether his court had jurisdiction to set aside the prenuptial agreement, given that it had been concluded by the parties in Austria.
"I do agree with GS that this court lacks jurisdiction to interrogate the validity of the said prenuptial agreement, the same having been made and executed in Austria, and the issue already determined by the Courts at the place. The run is in Austria and the courts in Kenya are mere spectators," said Justice Githinji.
The judge concluded that the right court in Austria had made its decision and that the matter could not be reopened or even appealed here in Kenya.
