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Kenyan court cannot decide on matrimonial property in the US

Jacqueline Mack Damon during an interview in Nakuru on March 11, 2022. [Kipsang Joseph, Standard]

A row over the multi-million-shilling matrimonial property in the US and France between a retired World Bank employee and her French ex-husband cannot be handled by a local court.

The High Court ruled that making orders touching on the estate would amount to encroaching on an area that rightly belongs to the foreign countries.

Divorced in September 2018, Jacqueline Mack in February 2019 instituted a suit against Jean Francois Damon, seeking to have him restrained from interfering with matrimonial property.

The couple operated Sleeping Warrior Lodge under Mawe Mbili Company Ltd in Soysambu Conservancy. The lodge got burnt down in March 2017.

Jacqueline in the suit claims in the course of their marriage they acquired assets, including residences in France and the US.

The lovebirds got married in France on June 29, 1974, in accordance with French law in the town of Hall of Lassay Sur Croisne. They divorced following a suit filed by Jacqueline in a Naivasha court.

Jacqueline in her suit wanted the property secured and conserved, pending a hearing and determination of the suit. In the suit, she accused Damon of taking advantage of the legal void created by the Kenya Divorce process by selling and destroying jointly owned property in France before the dissolution of their marriage.

“Throughout the marriage with the defendant, my income supported our family and was used to acquire matrimonial property and extensively renovate inherited property at L’Ejumeau Lassay Sur Croisne which served as the family’s residence from December 2010 to the present,” she stated.

She claimed, Damon sold matrimonial assets for the exclusive purpose of financing questionable companies owned by him.

She claimed that although some of the properties are solely registered in the name of Damon, she was the major contributor to the development and improvement. 

She revealed that when she married Damon, she was a student and aged only 25. 

In the court documents, Jacqueline claimed prior to the marriage they entered into a prenuptial agreement on June 24, 1974, only five days to their wedding

The terms of the pre-nuptial agreement, she said, were oppressive to her as they did not allow her to manage joint property acquired with her earnings, instead she required Mr Damon’s approval for any action.

“At the time of entering into the prenuptial agreement, it is worthy to note that I was a naive American student aged 25 in a foreign land, deeply in love with the respondent and eager to do whatever it took to get married to him,” she stated.

She said she was deceived into entering the marriage in France by signing the prenuptial agreement, adding that she did not receive independent legal advice at the time.

She said Damon made contributions to the upkeep of the family only between 1983 and 1986 by sending his financial resources to a joint bank account.

Damon, she said, unilaterally sold the family home known as L’Ejumeau and located in Lassay sur Croisne 41230, France, and all the moveable matrimonial property, including antiques, artwork, jewellery, furnishings and antique carpets. “The respondent sold off the land surrounding the matrimonial house, L’Ejumeau about 200 hectares in several pieces between 2010 and 2018,” she said.

Damon, she said, has never accounted for the proceeds of the sale of the afore-mentioned property nor shared the same with her, despite her being justifiably entitled to the same on account of her monetary contribution to the acquisition, maintenance and improvement of the same.

Damon raised a preliminary objection, saying the court in Nairobi lacked jurisdiction to determine the suit as the property listed as the matrimonial property includes immovable property located in a foreign jurisdiction.

Kenyan courts, he said, do not have jurisdiction over immovable property in a foreign country.

The challenge on the prenuptial agreement dated June 1974 he said is time-barred.

“That under the prenuptial agreement dated June 24, 1974, the applicable law in case of distribution of matrimonial property is the French law, and this ousts the application of Kenyan law in this suit,” he stated.

High Court judge Lydia Achode in a ruling delivered on April 27 allowed a preliminary objection by Damon opposing the suit.

The judge in the ruling said the court lacked jurisdiction to make cross-border declaratory orders. The judge noted that making the orders would be to encroach on the jurisdiction that rightly belongs to the US and French courts.

“Courts ought not to make orders in vain. This court is not convinced the countries the properties are situated would enforce the orders of this court.

“In the premise, the preliminary objection dated October 16, 2021, is meritorious and succeeds. The application dated May 2021 is hereby dismissed,” ruled the judge.