Couple fighting
  • The Court of Appeal ruled that neither of the two parties has specific entitlement to commonly owned property
  • Benefits granted to those in lawful unions are not available to cohabitants

Do you have joint property with the man or woman you intend to marry? If so, you have reason to be worried.

A court has ruled that in such a relationship, neither of the two parties has specific entitlement to the jointly owned property.

According to Court of Appeal judges, one cannot stake a claim to property held by his/her former partner if they were never married formally.

The verdict was a blow to Majda Povoden from Yugoslavia, who had been awarded by the High Court part of the property she jointly acquired with Ondiek Kabonyo, a Kenyan.

Ms Povoden had managed to convince the High Court that Mr Kabonyo duped her into believing he was not married when they met at a university in Yugoslavia, where both were students in 1964.

Kenyan woman

The two were married and opened a joint account from which they grew their wealth. But on coming to Kenya, Povoden was stunned to discover that her spouse had a Kenyan wife.

The High Court gave her a share of the property but Kabonyo went to the Court of Appeal, arguing that Povoden knew all along that he was married.

The court ruled that neither of the two had specific entitlement to the jointly owned property.

This means that one owns a 50 per cent share that cannot be divided in favour of either partner no matter how little or much one has contributed.

The High Court had awarded Povoden 95 per cent of one property and 50 per cent of a second one. Kabonyo got 5 per cent and 50 per cent respectively.

But Court of Appeal judges William Ouko, Asike Makhandia and Agnes Murgor ruled that the High Court was wrong as the two were never husband and wife.

“All they did together while labouring under that mistake pointed to a clear intention of joint investment and joint ownership without assigning any portion to any one of them,” the judges found.

The Court of Appeal allowed each party to keep what they were holding and ordered that they should conduct transfers to each other, thus ending an 11-year legal battle.

“It follows therefore that the benefits granted to a lawful marriage are not available to cohabitees who are deemed never to have been married at all. As they would say in Latin in the days of old, "Nihil fit ex nihilo" (out of nothing, nothing comes), the judges found.

They observed that those interested in living together without marrying each other exposed themselves to legal hurdles.

“Such unions present many challenges for those involved and are fraught with legal uncertainties,” they said.

The two met at the University of Ljubljana, where Povoden was an architectural engineering student and Kabonyo studied agronomy.

Three children

They got married in September 1964 in the same country. Four years later, they both came to Kenya and lived as a husband and wife and had three children.

All this time, the woman told the court, she did not know that the man was married to one Christina Anyonyo. It took 15 years for Povoden to discover Kabonyo was someone else’s husband.

But Kabonyo told the court that when they got married, Povoden was aware that he had a wife back home.

Povoden filed a case in the High Court and the marriage was annulled although they continued to live together in the same house for one more year.

Povoden then went after two properties they had acquired during their union. Both were registered as joint properties.

According to her, they acquired the first property by virtue of her work as an architect with the National Housing Corporation.

The judges were told that she paid Sh17,200, being 10 per cent of the purchase price, from the joint account and that the remainder was settled through her savings in Yugoslavia, a gift from her mother and some direct deposit.

The second property was allocated to Kabonyo by the Government. He paid Sh16,035 to settle the purchase price from the joint account and had it registered under their joint names.