The High Court has ruled that it is upon couples in a dispute to prove their individual contribution towards the acquisition of properties in a case where both of them claim absolute ownership.
Justice John Onyiego further ruled that it is not enough to allege a right yet offer no proof of entitlement through contribution whether direct or indirect.
He was delivering judgment in a case where American national James Oliver has sued his ex-wife Agnes Karimi and sought to be declared sole owner of marital properties.
Justice Onyiego noted that, under Section 7 of the Matrimonial Property Act, ownership is vested upon a person according to their contribution towards its acquisition and the property is shared between them if they divorce or their marriage is dissolved.
The judge added that a spouse should not be disqualified from getting his or her rightful share on the grounds that he or she was not contributing directly to the acquisition of the property.
Mr Oliver had told the court that he bought the properties on his own without any financial help from Ms Karimi.
The applicant said that despite having a parcel of land in Kilifi registered under Ms Karimi’s name as the sole proprietor and two plots in Kiembeni, Mombasa, registered as joint owners, she did not contribute a single cent towards their acquisition.
He added that, in 2014, they travelled to the US together and left the land ownership documents to Ms Karimi’s sister for safekeeping.
The court heard that after his divorce from the respondent before a court in the US in 2018, he demanded for the documents from Ms Karimi’s sister in vain.
"Leased out to strangers"
Mr Oliver claimed Ms Karimi leased out the two properties in Kiembeni to strangers who are paying rent to her. He said he single-handedly built houses that he stays in whenever he is in the country and was intending to use as his retirement home.
On her part, Ms Karimi claimed that she solely acquired the properties and that out of love and compassion, she decided to include Mr Oliver as a co-owner and termed the case by the American as part of his scheme to take them away from her.
She denied leasing the Kiembeni properties as alleged, claiming, instead, that the two properties have been invaded by squatters and a portion turned into a dump site. Ms Karimi told the court that she voluntarily allowed the applicant to stay on the property in Kilifi, a fact she does not intend to change any time soon.
She told the court that after she got married to Mr Oliver, they relocated to the US where she got a job whose earnings she used to take care of her family.
Ms Karimi further stated that, besides the property in Kenya, she single-handedly serviced a house mortgage in the US, which was given to her after their divorce.
Justice Onyiego noted that neither Mr Oliver nor Ms Karimi tabled evidence of financial contribution for the two parcels of land in Kiembeni and that there was no sale agreement produced to show who bought the land, from whom and for how much.
Justice Onyiego ruled that the plots in Kiembeni be shared out equally and that the value of the plot in Kilifi minus the structures is awarded to Mr Oliver.
The judge added that the value of developments done on the plot in Kilifi is valued and shared out equally between the parties.
“In the event the properties are not physically divisible, the same can be valued by a mutually agreed valuer, sold and the sale proceeds shared out and either party shall be at liberty to buy out the beneficial interest of the other on those properties,” ruled Justice Onyiego.