Same-sex couples can own property

By HAROLD AYODO

It is not strange for same-sex couples to jointly own property in the real estate sector. Some readers who say they are gay want to know whether they can buy apartments, homes and plots together. Several emails were sent to this column after renowned author Binyavanga Wainaina recently announced that he was gay.

Tony and Leo, who want to jointly buy an apartment off Ngong’ Road, Nairobi, contend that it is becoming normal for gay couples to wed and own property globally.

A while back, two Kenyan men — Charles Ngengi and his Daniel Chege Gichia — became the first Kenyan gay couple to wed in London under the Civil Partnership Act.

“Music legend Sir Elton John and his partner David Furnish are also living officially as a family complete with their son Zachary,” Tony and Leo say via email.

As proof that they jointly owned property, Sir John and Furnish made media fodder when they recently sold their multi-billion-shilling home at West Hollywood’s Sierra Tower following concern over their child’s safety.

Tony and Leo ask whether they too, can buy a ‘matrimonial’ home, arguing that Kenya borrows most of its laws (Common Law) from England.

“We both have well-paying jobs and have dated for six successive years. We live separately, but want to buy a home and move in together,” Tony says.

Leo says it is costly for them to live in separate apartments and spend weekends for sleepovers. “Each of us pays rent of Sh65,000 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 identified in Kilimani area.

Separately, Laila and Becky say they are living together as a couple but wonder whether they would write Wills on how their house would be inherited upon death. “We bought property together and are registered as joint owners. Can we write Wills naming our heirs?” Laila asks.

They say they both have plots in Kitengela and Syokimau registered under their separate names.

Constitutional guarantee

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

Moreover, property laws do not bar people in same-sex relationships from owning homes or plots.

And 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).

In daily practice, lawyers never probe bedroom matters of clients as everyone is entitled to legal representation — the Constitution provides for equality and freedom from discrimination.

According to the Bill of Rights, every person is equal before the 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.

Back to Tony and Leo, they can jointly buy property, but it will not be matrimonial property, as the Constitution does not recognise same-sex marriages.

The Constitution does not expressly outlaw same-sex unions but says marriage shall only be between a “biological” man and woman. The situation is different in some Europe countries that expressly allow same-sex unions where the couples even own property as a legal family.

Locally, property and succession laws do not expressly bar gays from writing Wills naming their partners as their heirs.