Why court can’t divide property of married couple

Justice William Musyoka made decision at High Court. [Photo:File/Standard]

By WAHOME THUKU

KENYA: Can a court order for division of matrimonial properties between a husband and wife, who are still happily married?

That has been the question of a protracted legal dispute between former Githunguri MP Njehu Gatabaki and his wife Rachael. The two are still married and have no separation or divorce proceedings pending in any court.

Sometime back, the former MP decided to buy land worth millions of shillings from Muga Developers Ltd. The deal also involved another real-estate dealer, Suraya Properties Ltd.

On August 6, 2009, his wife filed a suit at the High Court in Nairobi asking the court to alienate that property and determine her share in the same. That was case number 29 of 2009.

Ms Gatabaki sought a declaration that the land, which the husband was in the process of buying, should be owned jointly between them.

She asked the court to declare that 50 per cent of the land was held in trust for her by the husband. She sought an order stating that a wife was entitled to half of the property of the proceeds of the sale of the land or any other portion the court would find fit. She also prayed for an injunction to restrain the husband from alienating the said property before the case had been determined.

Later, Suraya Properties Ltd and Muga Developers Ltd were joined as interested parties.

On October 28, 2010, Muga Ltd filed another suit at the High Court against Gatabaki and his wife. That suit, which is still pending in court, is number 719 of 2010.

The company claims that the land belongs to them since the sale transaction had not been completed and that the Gatabakis should be restrained from having anything to do with it or else they would be guilty of trespassing and damaging the property.

On November 14, 2012, Mr Gatabaki filed an application through his lawyer Ashford Muriuki to have the proceedings on the 2009 case temporarily stopped. Alternatively, he asked the case be dismissed or struck out. The application was heard by High Court Judge William Musyoka.

The former MP argued the land LR No 28223/2 was not matrimonial property hence could not be part of the proceedings under Section 17 of the Married Women’s Property Act of 1882.

Matrimonial proceedings

He said his wife was not the registered owner of the land hence she had no legal standing to sue over it.

Gatabaki said there was no pending divorce or separation suit between him and the wife hence the court had no jurisdiction to entertain the suit for division of matrimonial property when the two were still together.

Lawyer Muriuki argued the 2009 case should be put on hold to allow for determination of the 2010 case by Muga Developers to avoid getting conflicting decisions.

He claimed the property was mortgaged to persons who were not parties to the suit and whose interest would be affected by the decision of the court. The property was leased to Equity Bank hence could not be subject of matrimonial proceedings under the law, he submitted. Rachael filed a response to the application on January 22. Through her lawyer Judy Thongori, she argued that the land was a matrimonial property although it was not registered in her name. She had contributed to its acquisition, had occupied it for a time and developed it.

She claimed her husband had acted on his and her behalf in the transaction when they acquired the property. A dispute had arisen between them and the seller and the transaction was not finalised.

She said Gatabaki had entered into a commercial arrangement with third parties for development of the property without consulting her. He had received some money under that commercial deal and the balance was being held by a bank to await the outcome of the case.

Rachael said she filed the suit out of apprehension that she could lose her right over the property. She was asking the court to determine and safeguard her share.

She submitted of the existence of the marriage and the fact that there were no divorce or separation proceedings between her and the husband could not stop her from bringing the proceedings under the Married Women’s Property Act.

Further, she argued that her entitlement to a share of the property was not dependant on the outcome of the 2010 case.

She dismissed the application as baseless, saying it sought to suspend the proceedings of the 2009 case, which was filed before the 2010 one.

Lawyer Thongori submitted that the property was still charged when Gatabaki consented to a lease being deposited in court.

“It would be selective to use the argument that the property is leased, to defeat the wife’s claim,” she told the court. Thongori argued that under the law, the action must be filed while the wife and husband are still in marriage.

Lawyer Muriuki maintained that the main issue was whether the court could entertain such a case. He argued that according to the law, there could be no suit for division of matrimonial properties when the couple are still happily married.

“The court has no jurisdiction to alienate matrimonial property of couples, who are at peace,” Muriuki submitted.

He said Section 17 of the Married Women’s Property Act of 1882 only applies to cases of breakdown in marriage. “It has to be demonstrated that there are divorce or separation proceedings or some other cause relating to the marriage, for that is when a party to a marriage may lose out. The law comes to protect the interests of such a spouse,” the lawyer said.

Unbroken coverture

He cited a Court of Appeal decision in a case between Peter Njenga vs Sophia Ndungu where the judges held that if the parties are married, a court has no jurisdiction to alienate land suits between them during their lifetime of unbroken coverture.

The application by Gatabaki was supported by both Suraya Properties and Muga Developers.

Justice Musyoka identified three issues for determination, but generally addressing the question as to whether the suit filed by Rachael could be dismissed or struck out.

But the critical issue was to determine whether the court could agree to decide the wife’s share in a property bought by her husband.

First, the judge looked at the two suits of 2009 and 2010 and concluded that they were different on the questions of law and the determination of one would not conflict with the other.

Musyoka ruled that he could not suspend the proceedings of the 2009 case to await the determination of the 2010 case filed by Muga Developers. That gave Rachael a temporary reprieve, before the big blow came.

The judge looked at the Court of Appeal judgement in the Njenga case. “The language of the judgement is clear beyond peradventure. The High Court has no jurisdiction to alienate lands between spouses during their lifetime or unbroken covertures and that a judge faced with a suit of such nature ought to dismiss it,” he said, adding that the decision was binding on him.

Family unit

He added the law requires a suit for division of properties be filed during the time of separation or when there are matrimonial proceedings pending in court.

“It’s common ground that the parties to this dispute (Gatabaki and wife) are still married and together. There is no separation nor are there any pending matrimonial proceedings,” Justice Musyoka noted. “I, sitting as a judge of the High Court, have no jurisdiction to alienate the land between them.”

Musyoka said as a matter of public policy, the law ought not to advance a position whose effect would be to undermine the institution of marriage and the stability of the family unit.

“Alienating lands between spouses during the lifetime or unbroken coverture clearly weakens the marital bond of friendship and common understanding, undermines the marriage union and destabilises the family unit. This is against public policy as the family is the foundation of society and its basic unit. Its destabilisation makes the family dysfunctional and exposes society to the ills of insecurity, chaos and anarchy,” Justice Musyoka summed it up in his judgement last week.

The application filed by Gatabaki was allowed with effect that the 2009 suit filed by his wife was dismissed. Since this was a case between a married couple, the judge ordered each party to bear.

The writer is a court reporter with the Standard Group
Email: [email protected]