A Nairobi businessman who was kicked out by a woman he had cohabited with for 25 years, will finally enjoy the 30 per cent of the wealth they created.
The man known as POM to protect his identity will not only collect rent from 11 out of the 38 commercial and residential units comprising one and two-bedroom units and shops but will also benefit from the rent collected from the premises from the time he was kicked out in 2011.
High Court Judge Hillary Chemitei ordered compliance with a Supreme Court ruling that gave the man a 30 per cent share of the wealth.
“I do not think that what the POM is asking is out of his 30 per cent right in the suit property. He should be allowed to enjoy the same,” the judge said in his ruling.
The dispute stems from a case on division of the wealth, which was contested up to the Supreme Court.
The apex court which hit the last nail on this dispute had declared that there was no marriage between the two parties but still held that the man was entitled to 30 per cent and the woman 70 percent of the wealth after finding they both had a legal interest.
He argued that they began cohabiting as husband and wife in 1986 and that from joint savings, they purchased a property that later became the bone of contention after he was kicked out.
The man explained that the property was registered in the woman's name because its owner was not comfortable selling to him since he was not from the seller's tribe.
“The property was registered in the woman's name although we had both contributed to its acquisition," he said, adding that they took possession of the property between 1992 and 1993.
They, thereafter, developed and constructed rooms thereon, one of which they used as their matrimonial home, and rented out the others.
He claimed to have done all the legwork relating to the connection of electricity, sewerage, and water to the premises and operated a bar from the premises.
He, however, lamented that the woman evicted him despite his contribution towards the acquisition and development of the property. At the time, he said, the rentals fetched Sh258,100 per month.
"I allowed him to manage the property because we were friends," she said.
According to her, she was already married under customary law to one KM, now deceased, and although they were separated, she never divorced him.
She stated that she could not enter into another marriage while her first marriage was still subsisting.
She also claimed that after KM died in 2011, the man intensified harassment to coerce her into marriage, prompting her to file a civil suit to restrain the man from trespassing on her properties.
The High Court dismissed the man's case after finding that although there was long cohabitation between the parties, the principle of presumption of marriage was inapplicable since the woman was already married to KM.
The High Court held that the woman could not marry the man, noting that the relationship between them was adulterous, resulting in cohabitation which could not be deemed a marriage.
POM moved to the Court of Appeal which presumed the existence of a marriage, allowed the appeal and ordered the suit property to be divided into two halves, a share for each party.
The matter then moved to Apex court, which agreed with the woman that she was not capable of entering into another marriage with the man, thus the presumption of marriage could not be made in that circumstance.
But the man was lucky to get a share of the property, which the family Division of the High Court has now helped him to secure.
The man moved to the High Court on July 26, last year, to seek the implementation of the Apex court ruling that was delivered in January.
He asked the judge to allow him access to the property, collect rent and benefit from the rent that had been collected when he was out in the cold after being kicked out.
“Once the total amount of the rental income collected by the respondent from September 2011 until the end of June 2023 is ascertained, an order be issued that the defendant remits to me 30 per cent within thirty days of such ascertainment,” he submitted.
The woman had yet to file any response to the man’s application by the time the judge delivered the ruling on February 24.
The High Court judge noted that evidence shows the man has not enjoyed proceeds from the premises since he was kicked out in 2011.
Justice Chemitei further noted that POM is entitled to 30 per cent of the rental income that has accrued from the premises over the years.
“It appears that from the day he was kicked out of the premises in 2011, he has never benefited at all. There is no evidence to that effect. There is, therefore, no doubt that the woman has all along enjoyed the rent collected from the premises ever since,” said the judge.
The woman has also been directed to, within 30 days, render true accounts of the rent collected from the units to which POM is entitled from 2011 to the end of June 2023.
“Alternatively and without prejudice to this order and at their own costs, a valuer or estate agent either agreed upon or each party to appoint, carry out the rent so far collected by the respondent from September 2011 to date and the 30 per cent thereof be paid to the man by the woman,” said the judge.
Further, in the execution of the Supreme Court's judgment, Justice Chemitei directed that professionals be appointed to demarcate the undeveloped portions of the property in the best way possible. Their costs will be met in the ratio of 70:30 per cent respectively by the parties.
“The report and findings of the parties shall be filed in this court within 90 days from the date herein,” said the judge.
The officer in charge of Muthangari police station or any station within the jurisdiction of the premises to ensure compliance with the directives.
