A man has been ordered to vacate a multi-million shillings matrimonial home in Nairobi's Karen Estate once his estranged wife purchases a 25 per cent share that the court awarded him in a divorce case.
Ms Joan Abila moved to court seeking orders to evict the ex-husband from the house, saying it was a gift from her mother. She told the court that her mother gifted her Sh10.3 million to purchase her dream home.
Abiba told Justice Helene Namisi that she exclusively bought the said house in 2005 at Sh18.2 million while they were separated with the estranged husband, George Obala.
She said the house was bought using her mother’s cash gift of Sh10,330,000, proceeds from the sale of her late father’s home and mortgage loans.
Abila said that the ex-husband diverted his income into expensive, unsuccessful political campaigns for the Rarieda parliamentary constituency, leaving her to provide for the domestic upkeep and shelter of the family.
Abila said she is ready to refund any funds that Oballa contributed towards the house in Karen.
It was established in court that the ex-husband only contributed sh3,115,000 towards the house, which earned him a 25 per cent share of interest in the matrimonial home.
Abila, who received 75 per cent of the matrimonial house, is expected to purchase Obala’s shares before evicting him, failure of which the house will be sold off and the proceeds shared at the ratio of 75:25 percent.
According to the court, the estranged couple celebrated a statutory marriage in November 1996, which was blessed with three children.
However, after 20 years of marriage marred by acrimony, Abila parted ways with his husband Obala.
Serious matrimonial disharmony led to an initial separation between 2000 and 2002, followed by a reconciliation that endured until 2014, when the marriage disintegrated irretrievably.
Abila asserted that the Karen Property was purchased in between 2005 and 2006 for an agreed consideration of sh.17 million, which escalated to sh.18,200,000 due to completion delays and contractual interest penalties.
She said the suburb home was bought partly from the sale of a residential house in KMA Estate, Langata, which was a personal parental gift from her parents, the late Dr Peter Ochola and Mrs Sylvia Arende.
She also used the substantial direct cash advancements amounting to sh. 10,335,000 gifted exclusively to her by her mother.
She also added independent borrowing comprising a commercial mortgage of sh.6,165,000 from CFC Stanbic Bank, a loan of sh.1,500,000 from Utafiti Sacco, and a corporate facility of sh.3,000,000 from Kimisitu Sacco, all serviced through payroll check-off deductions from her salary.
Abila said that she was stably employed, serving in executive roles with international agricultural organisations, including the Alliance for a Green Revolution in Africa (AGRA) and ABI Trust.
She showed monthly check-offs of sh.82,000 to Kimisitu Sacco deducted from her official salary from AGRA.
In her testimony, Abila’s mother, Sylvia Arende, said that following the death of her husband Dr Ochola in early 2002, the family transferred the Langata property to her daughter as an advancement to secure her future during an acute period of marital separation.
Arende said that when Abila resolved to acquire the Karen Property, she consented to the sale of the Langata residence to her other daughter, Florence Siage for Sh5,200,000 so that the proceeds could fund the Karen deposit.
Arende further confirmed that she advanced financial assistance exceeding sh.10,330,000 directly from her personal accounts to safeguard her daughter and grandchildren, stressing that these funds were never intended as a gift or advancement to Obala.
However, in his defence, Obala said that between 1991 and 2021, he held senior corporate positions across multinational corporations and financial bodies, including Trade Bank, Caltex Oil Kenya, Agip Oil, Shell & BP, Oryx Energies, Fore Finance, and Scope Insight, that enabled him to finance the said property.
He claimed that between 2003 and 2012, while stationed in Dar es Salaam, Tanzania, as a regional executive, he remitted funds to Abila’s accounts to service debts, maintain the household, and invest in real estate.
Obala said that Dr Abila had only paid sh1,800,000 for the Langata house before his demise, after which he personally financed the remaining sh3,500,000 balance through cash and personal cheques and proceeded to exhibit receipts issued in his name.
He said that the subsequent disposal of the Langata house to his estranged wife's sister for sh. 5.2 million represented an undervaluation of an asset worth sh.12 million, causing him a direct capital loss.
Regarding the Karen acquisition, Obala maintained that on March 13, 2006, he deposited sh1.5 million in cash into the Abila’s account at Commercial Bank of Africa (CBA), Village Market Branch, to avert the dishonour of an acquisition cheque.
He further asserted that he contributed sh. 2,535,000 from joint savings, remitted USD currency equivalent to sh. 732,350, provided sh. 1,200,000 from the insurance salvage of a motor vehicle, and paid mortgage installments, including a specific deposit of sh. 415,000 on November 18, 2012.
However, in the judgment, Justice Namisi said that despite Obala presenting an extensive professional profile across regional organisations, high earning capacity does not constitute evidence of property acquisition.
The judge said that a spouse's earning potential cannot substitute for proof of actual investment into the property in dispute.
“The Defendant/Respondent (Obala) failed to produce primary bank statements from his accounts in Kenya or Tanzania demonstrating recurring transfers into the vendor's or chargee's accounts,” said Justice Namisi.
The judge noted that Obala only provided a cash contribution of sh.3.115,000 towards the purchase of the said property.
Justice Namisi held that where parents provide funds to assist their married child in acquiring property, there is a legal presumption that the contribution is a gift or advancement solely to their child, rather than an intention to confer a proprietary interest on the son-in-law or daughter-in-law, unless clear evidence demonstrates otherwise.
The judge said that there was no evidence presented showing that Mrs Arende intended to create a beneficial interest for Obala.
“As a result, the financial contributions from the Langata property and parental assistance belong to the Plaintiff/Applicant (Abila),” said Justice Namisi.
The judge proceeded to allocate Abila 75 per cent of the said matrimonial property, while Obala received 25 per cent shares, which are to be bought off from him.
The judge said that where a marriage has been dissolved and beneficial shares of the parties determined, the court retains equitable jurisdiction to order one spouse to vacate the property upon the settlement of their beneficial share.
Justice Namisi directed that Obala’s 25 per cent interest be valued and bought out within 90 days or the property sold on the open market within 120 days and the proceeds distributed accordingly.
“Because the Plaintiff/Applicant holds a 75 per cent majority beneficial interest, she is entitled to exclusive possession of the property, subject to buying out the Respondent's 25 per cent beneficial interest,” said Justice Namisi.
The judge also issued orders stopping Obala from selling or leasing the said property.
