Wife stops her husband from selling Sh10M property to state official

The court ruled that the property constituted a “matrimonial home” that was being utilized by the spouses as their family home. [iStockphoto]

A woman has succeeded in reversing a Sh 10 million deal that involved selling off a prime parcel of land with posh houses they jointly acquired with her estranged husband who claimed to have moved on with his other two wives.

The mother of four put up a spirited seven-year fight through a case filed on January 31, 2017, to convince the High Court in Bungoma to nullify the lucrative deal that could have seen her unceremoniously evicted from the property purportedly bought by National Government Affirmative Action Fund (NGAF) CEO Roy Sasaka Telewa.

Victorina Nanjala pleaded with the court to set aside the deal saying should it be allowed, it would amount to her being denied the right to matrimonial property and rendered herself and children destitute.

She said that her husband, Cleophas Wanyonyi Waswa deserted their matrimonial home in 2015 and sometime on January 3, 2017, sold the parcel to the NGAF CEO, Telewa for Sh10 million in an “irregular, null and void deal that lacked spousal consent."

The argument caught the eye of the court which gave its judgment last week on March 7 canceling the deal and subsequently barring her husband whom she married in 1998 and the buyer from evicting her.

“From the pleadings, Nanjala sought a permanent injunction against Waswa and Telewa from evicting her from the property. Having found that she is a spouse to Waswa and that the suit property forms part of their matrimonial properties which cannot be disposed of without the consent of a spouse-which the court has found was not sought and obtained- it is therefore incumbent upon this court to issue a permanent injunction against the two from evicting her under the pretext of enforcing the purported sale agreement dated January 3, 2017,” said Justice Enock Cherono.

The Bungoma-based judge said that it would have ordered Waswa to cater for the cost of the case but given the relationship between him and Nanjala “and hoping that there would be no further friction, I order each party to bear their own costs.”

Waswa’s argument that his wife never contributed towards the purchase and construction of the houses on the suit property and that he had an alternative residence where he could settle their four children hit a snag.

The court reminded him that whichever the case, the property constituted a “matrimonial home” that was being utilized by the spouses as their family home.

“From the facts adduced in this case, it is clear to me that first, the property was acquired by the parties after they got married. Section 93 of the Land Registration Act, Act No. 3 of 2012 provides that property obtained during the subsistence of a marriage ought to be dealt with under the Matrimonial Property Act, Act No. 49 of 2013,” said Justice Cherono.

“An estate or interest in any matrimonial property shall not, during the subsistence of a monogamous marriage and without the consent of both spouses, be alienated in any form, whether by way of sale, gift, lease, mortgage or otherwise.”

It helped her course that Nanjala produced her marriage certificate to Waswa who had alleged he had other two wives to warrant the property to be co-owned by them but the court reminded that “Section 9 of the Marriage Act 2014 prohibits parties in a monogamous marriage from contracting another marriage.”

The purported property buyer’s (Telewa) argument could also not help get Nanjala evicted. He had averred that he legally purchased the property at Sh10 million after conducting due diligence.

He stated that being the bona fide purchaser for value, he was entitled to vacant possession of the land but it emerged he had not obtained consent from Nanjala before giving his Sh10 million for the purchase.

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