Same sex, too can co-own property

By Harold Ayodo

In the western world, same sex couples are not as frowned upon as in Africa. They are part and parcel of the society. Here in Kenya, this constituency has been agitating for their rights complaining about the discriminations — real or perceived.

For Tim and Peter who sent an email to this column, their concern was whether property laws would bar them from buying a ‘matrimonial’ home as gays.

“We both have well paying jobs in leading corporate firms and have dated for five years...we live separately but want to buy a home and move together,” Tim says.

According to Tim, it is more costly for them to live in separate apartments and spend weekends for sleepovers.

“Each of us pays rent of Sh45, 000 per month...it would be cheaper to buy an apartment from our savings and move in together,” Tony says.

However, their worry is whether the law would stop them from buying the house they have already identified in Kilimani area.

Separately, Ann and Purity say they are living together as a couple but wonder whether they would write Wills on how their house would be inherited upon death.

Joint ownership

“We have property that we bought together and are registered as joint owners...can we write Wills naming our heirs?” Ann asks.

She also says that they both have plots in Kitengela and Syokimau respectively, registered under their separate names.

Article 40 of the Constitution envisages protection of right to property and any citizen can individually or in association with others acquire and own property.

And property laws — Acts of Parliament — do not bar people in same sex relationships from owning homes or plots.

Moreover, transfer forms, which are filled during property transfer transactions by lawyers, have no details on sexual orientation of buyers and sellers.

The transfer forms basically require passport size photographs of the buyer and seller, their signatures and attestation by their lawyers.

Other requirements are certified photocopies of national identity cards and Kenya Revenue Authority (KRA) Personal Identification Numbers (PINs).

Lawyers never probe bedroom matters of clients as everyone is entitled to legal representation as the Constitution provides for equality and freedom from discrimination.

According to the Bill of Rights, every person is equal before law and has the right to equal protection and benefit of the law.

Constitutionally, women and men have the right to equal treatment and the State shall not discriminate directly or indirectly on gender.

Under the Bill of Rights, every person has inherent dignity and the right to have that dignity respected and protected.

However, for Tim and Peter who intend to buy a ‘matrimonial’ home as gays, they can buy the property, but cannot be recognised in law as married.

The Constitution does not expressly outlaw same sex unions but says marriage shall only be between a biological man and woman.

However, the situation is different in some countries in Europe that expressly allow same sex unions where the couples even own property as a legal family.

Take the case of two Kenyan men who became the first gay couple to wed in London.

Charles Ngengi, 40 and his bride, Daniel Chege Gichia, 39, became civil partners under the Civil Partnership Act in the United Kingdom.

Music legend Elton John and his partner David Furnish are also living officially as a family complete with their 22-month old son Zachary.

The family recently sold their multi-billion shilling home at West Hollywood’s Sierra Tower following concerns of their child’s safety.

Rights uproar

In the United States, President Barack Obama recently caused a storm when he said he believed same-sex couples should be allowed to marry.

But in Kenya, Justice and Constitutional Affairs Minister Eugene Wamalwa recently told the United Nations Commission on Human Rights that gay marriages were illegal.

But the illegality of same sex marriage locally does not stop gays from owning property despite the Penal Act criminalising unnatural acts.

Therefore, Tim and Peter can buy their desired dream home and registered themselves as joint owners. Gays can even write Wills naming their partners as their heirs.

For Ann and Purity who are registered as joint owners of the house they are living in together the law guides jointly owned property.

What would transpire upon the unfortunate death of one of the registered joint owners is that the surviving one automatically becomes the legal owner.

The two women are also at liberty to write Wills detailing how the plots they separately own in Kitengela and Syokimau respectively, will be inherited upon their death.

The writer is an Advocate of the High Court of Kenya

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