divorce

Court rules that there was no evidence of improvements done on the property during the couple's marriage.

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Tanzanian man loses prime property to estranged Kenyan wife

What you need to know:

  • The couple’s dispute started in 2017 after the man filed for divorce in the Kadhi’s Court in Mombasa.
  • The couple accused each other of infidelity, dishonesty, cruelty and other allegations.

A Tanzanian national has lost property worth millions of shillings to his estranged Kenyan wife after failing to provide evidence of their traditional marriage to qualify for an equal share of the wealth.

The man, identified in court records as HJO, alias BJO, has walked out of the marriage empty-handed after more than six years of court battles.

HJO was required to prove that his marriage with the woman, IMS alias EMS, was solemnised under Maasai rites before the property on the South Coast was acquired.  

Mombasa Family Division Judge John Onyiego noted that in African traditional marriages, there is a public ceremony in the presence of elders, who bless the marriage, an exchange of gifts and payment of dowry.

“Unfortunately, there was no evidence adduced by HJO to prove that the requisite Maasai rites and or cultural practices were performed,” the judge said when he ruled on the matter.

Claims of marriage between the two amounted to hearsay, he said, because HJO failed to call anyone who witnessed the ceremony.

“His evidence regarding Maasai marriage is simply not corroborated. It was upon HJO to adduce evidence to prove the existence of traditional marriage or presumption of marriage. A mere allegation that they got married in 2010 without proof is not sustainable,” the judge said.

The only evidence available was that the woman was married to the man in 2015, five years after the disputed property was acquired.

Infidelity, dishonesty and cruelty

The court also noted that there was no evidence of improvements done on the property during the marriage and, therefore, it was not matrimonial property for division or distribution.

“To that extent, the issue of contribution does not arise whether directly or indirectly,” Justice Onyiego said.

The couple’s dispute started in 2017 after the man filed for divorce in the Kadhi’s Court in Mombasa.

The couple accused each other of infidelity, dishonesty, cruelty and other allegations and asked that the marriage be dissolved because it had been irretrievably broken.

The man asked that the woman be ordered to compensate him for causing the divorce.

The man told the court that he came to Kenya in 2007 as a businessman and engaged in buying shoes from Tanzania and selling them in Mombasa.

“I then started cohabiting with the woman in 2009. I took her to Tanzania the following year and had our union solemnised in accordance with the Maasai culture and customs,” he said.

He claimed that they together bought land on December 5, 2010 before building an eight-room modern house.

According to HJO, the property could not be registered in his name because he had not obtained the necessary documentation and that is why his name did not appear in the ownership documents.

Dissolved the marriage

They then moved to the house in 2014, converted to Islam, and solemnised their Islamic marriage the following year before the Kadhi.

In her defence, the woman accused the man of being irresponsible as he never supported her financially and that he was a dishonest person who never disclosed that he had another wife in Tanzania.

She further denied ever engaging in any Maasai traditional marriage ceremony with the man or ever being introduced to any of the man’s relatives. She, however, admitted celebrating Islamic marriage with the man in 2015.

“I was single when I bought and developed the subject plot, we had not started cohabiting,” she said.

The Kadhi’s court dissolved the marriage but directed that the couple share the property on a 50:50 basis.

This decision aggrieved the woman, who appealed to the High Court.

Justice Onyiego agreed with the woman after reviewing the evidence, noting that he could not find a record of how the man contributed to the purchase and development of the property.

“A declaration thereof made herein that the said property was solely acquired by the woman before marriage to the man and, therefore, her property 100 per cent,” the judge said.

Justice Onyiego said the Kadhi’s Court erred in law and misdirected itself.

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