A university lecturer has won a matrimonial property court battle against her ex-husband after the Court of Appeal allowed her prayer to split their marriage wealth equally.
The don had been awarded 30 per cent of their wealth by the High Court but she appealed insisting that she had made both monetary and non-monetary contributions during their marriage.
Court of Appeal judges Daniel Musinga and Fatuma Sichale unanimously agreed with the lecturer codenamed JKO that she gave her former husband code-named CKO money to purchase a home in Karen, cars and put up rental houses.
At the same time, the court found that she would give her ex-husband consultancy contracts to earn money as he was out of work before her.
The lecturer, a professor, teaches at the University of Nairobi while the man worked with an international agency.
The judges reversed the High Court verdict of 30:70 per cent and directed that the wealth should be shared equally on a 50:50 basis.
This comes a week after the Supreme Court ruled that marriage is not a guarantee to an automatic 50:50 matrimonial wealth sharing. The highest court in the land instead found that one should prove their contribution to the marriage.
In the case, CKO asked the court to review the percentage to 84 per cent in his favour and 16 per cent for his former wife.
At the heart of the case were an Sh82 million Karen house, an apartment at Kileleshwa worth Sh19 million, two vehicles worth Sh1.1 million and treasury bills.
At the High Court, Justice Aggrey Muchelule (now a Court of Appeal judge) found that the two had accumulated wealth worth Sh251 million. He ordered that the lecturer gets Sh75.3 million while her former husband was entitled to Sh175.8 million.
Aggrieved, JKO moved to the Court of Appeal. Her lawyer Judy Thongori faulted Muchelule for not acknowledging her monetary and non-monetary contributions.
According to Thongori, the properties at Karen and Kileleshwa were in joint names and therefore the High Court ought to have found that her client had a beneficial interest in the two.
There was also a parcel of land in Lubao. The court heard that the don used her salary, put up a pigsty, water tanks and some two rooms on the property.
In his response, CKO refuted all the claims by his former wife. In his argument in support of 84:16 per cent sharing, the man argued that his ex-wife's contribution was non-monetary.
According to CKO, he solely owned the Kileleshwa apartment as he built it and had been maintaining it despite being jointly registered.
On Lubao land, the man claimed that he purchased it using a loan from a Sacco. He claimed that he was not sure where she took her money to.
At the same time, CKO said the judge failed to consider that he had put $52,000 (Sh6.4 million) in their joint account and which they used to invest in treasury bills.
He argued that since they were both employed, they hired domestic workers, hence none of them should lay claim on non-monetary contribution.
While disagreeing with him, Court of Appeal judges found that it would be unfair to grant her 16 per cent knowing that the two married 35 years ago when he was 28 years while his wife was aged 26 years.
According to the judges, the woman’s career kept soaring and has always been in employment while her husband was fired from his first job and retired from his second one. According to the judges, the woman maintained their matrimonial home while he was working outside the country.
“Would anyone want us to believe that all the years of her hard work amounted to 16 per cent more so when it was never ever suggested that she had acquired properties in her name? The appellant and the respondent worked very hard to raise their family and to acquire property,” the bench headed by justice Daniel Musinga stated.
The judges also dismissed the man’s claim that he had injected his retirement money into the joint accounts. They found that although pension is not matrimonial property, the purpose of the account revealed it was for the family’s welfare.
On Lubao land, the court found that the man transferred the property to deny them to his former wife.