The High Court in Nakuru has awarded a woman full ownership rights to a commercial property she acquired during her marriage.
Justice Samuel Mohochi ruled in favor of Susan Nkatha granting her sole ownership of the property known as Kiambogo Block 2/18491, measuring 1 acre in Gilgil sub-county, Nakuru county.
The court found that while the property was acquired during Ms Nkatha’s marriage to David Jotham Gakuo, it was purchased solely through her efforts and funds.
“The Applicant having proved her case that she is indeed entitled to the subject property by being virtue of her sole acquisition and development, this Honorable Court has jurisdiction under the Matrimonial Property Act and the rules made thereunder and particularly Rule 30(1), to vest the property exclusively to the Applicant,” ruled Justice Mohochi in his October 8 judgment.
Ms Nkatha filed the case on October 24, 2023, accusing her estranged husband of interfering with the construction she was undertaking on the property.
She sought a court order to restrain him from interfering or dealing with the land in any way.
According to Ms Nkatha, she met Mr Gakuo in 2004 and they lived together as husband and wife, later having two children in 2006 and 2011.
The court was informed that during their marriage, Ms Nkatha and Mr Gakuo had agreed to acquire properties separately.
While Mr Gakuo purchased properties in Kamulu, Malindi and built a house in Ol-Kalou, Ms Nkatha acquired the Kiambogo property.
The couple separated in 2015 but rekindled their relationship briefly living together in Australia until 2022.
However, she told the court that Mr Gakuo later became violent prompting her to obtain a Domestic Violence Order from an Australian court, barring him from contacting her.
The order is valid until 2027.
She claimed to have solely funded the purchase of the land in Gilgil, Nakuru, and undertaken all the relevant approvals and construction work without any assistance from Mr Gakuo.
Following their final separation, Mr Gakuo began claiming a share of the Kiambogo property, alleging that it was matrimonial property to which he was entitled.
In its ruling, the court acknowledged that the property was matrimonial as it was acquired while the couple lived together as husband and wife.
"The fact that the property, whether acquired individually or not, was acquired when the Applicant and the Respondent lived together as husband and wife, qualifies the subject property as matrimonial property,” ruled Justice Mohochi ," said Justice Mohochi.
However, the judge noted in law, couples could enter into agreements to define their property rights.
Despite the property being considered matrimonial, Justice Mohochi emphasized that Ms Nkatha had provided sufficient evidence of her sole contribution to its acquisition and development.
Mr Gakuo did not respond to Ms Nkatha’s application.
"It is without a doubt that the applicant has demonstrated her 100 percent contribution to the acquisition and construction of the property.
As such, it is only fair that she is not denied what she is deserving of," the judge ruled.
