An attempt by a Kenyan woman to assume the ownership of an estate worth millions of shillings from her estranged German lover has hit a brick wall after a court declared it an unjust enrichment.
When Mr Thomas Schiering met Ms Nereah Michael Said several years ago, he was still married to one Meike Get Fricke Schiering, and the Kenyan woman was their financial advisor.
Court records show that a romantic relationship blossomed between Mr Schiering and Ms Said after the foreigner divorced his wife and the two moved in together as a couple.
For about eight years, the German national has been battling to get back the properties which Ms Said claimed possession of.
Ms Said also sold another property and kept all proceeds, claiming that she was the registered owner.
Following the court ruling, Mr Thomas has repossessed a piece of land, residential buildings and Sh14 million from the sale of another property.
In her ruling, Kwale Environment and Land Court Judge Addraya Dena said her court had established that the properties in question were only transferred to Ms Said on the basis of trust to hold for the foreigner for ease of the subdivisions for purposes of hiving off the portion for sale.
“Instead, Ms Said reneged and kept the sale proceeds to herself and then demanded that the rest of the subdivisions belong to her as the registered proprietor. Really? This is manifestly unjust enrichment on the part of the woman,” said the judge.
Justice Dena further ruled that Ms Said’s interest in the property known as plot numbers Kwale/Kinondo/2458, Kwale/Kinondo/2459 is extinguished and directed for the rectification of the registers for these two assets.
“To me, this is unconscionable conduct. It would be inequitable to let Ms Said go scot free. The court cannot fathom how someone could just wish their property away and be left with nothing. This court will not hesitate to impeach the titles and right the wrong,” she said.
Regarding another plot - Kwale/Kinondo/2460 - the judge said the foreigner did not appear to be much interested in it but noted that evidence show it was his intention to sell a portion of it and that his only problem is that he never received the 88 per cent of the proceeds of the sale.
“For me, based on the finding imposing a trust herein, Ms Said must remit the said 88 per cent of the price at which the property was sold based on the foreigner’s own testimony that he was to receive 88 per cent of the proceeds,” said the judge.
Court records show that the purchase price for this property was 122,000 Euro (Sh16.8 million currently) based on the agreement for sale between Ms Said and one Gerhard Heiduk and Wolfgang Ehgartner.
“Mr Schiering would therefore be entitled to the amount less 12 per cent. This shall be at the then applicable exchange rate,” added Justice Dena.
Ms Said is supposed to remit this money to the foreigner within a period of 90 days from the date of the judgment.
The two have been embroiled in ownership disputes of the prime properties located in Diani, Kwale County with each claiming to have purchased it for considerable reasons.
Following the dispute over the land where they have constructed residential flats, Ms Said threatened to evict the complainant and sell the plots prompting the man to seek court’s intervention
Mr Schiering claimed that he is the legal, registered and beneficial owner of the property having obtained the same as a lease from the government
Through his advocate Elaine Mukoya, the foreigner told the court that after obtaining the property, he registered a company with Ms Said known as Rising Eagle Ltd, where they were shareholders and directors and transferred the property to the company.
He explained that he further transferred the property to the woman to hold in trust and sell it and was entitled to 12 per cent of the purchase price in any sale.
“Ms Said sold one plot but failed to remit the purchase price, she also registered two other parcels of land in her name and has threatened to evict me,” he said.
The man further stated that he transferred the property to the woman in good faith and in the belief that she would hold in trust for him.
Court records show that together with Ms Said, the foreigner purchased the properties in question and developed four residential houses, a pool area, gazebo and store.
“Ms Said was a financial advisor to me and my ex-wife and she was known to both of us in that capacity,” he said.
According to the foreigner, after his divorce, he moved in with Ms Said with whom he got romantically involved and referred to her as his wife.
However, court records show that Ms Said strongly disputed these allegations.
The court heard that the two formed Rising Eagle Limited Company after developing a trust relationship before the properties in question were transferred to the company.
The court also heard that in 2012, the foreigner wanted to dispose of part of the suit property but was advised by Ms Said that the property would not be subdivided while in the name of the company and the same was therefore transferred to her for ease of the transaction.
The two would thereafter sign an agreement that the woman would hold the properties in trust for the foreigner and upon sale of the same, she would be entitled to 12 per cent of the purchase price.
But the woman in response claimed she purchased the land for valuable consideration and sub-divided it into three plots, where she sold one plot and retained the other two.
She maintained that the foreigner was neither the registered legal nor beneficial owner of the suit property before its subdivision.
“I purchased the property from Rising Eagle Limited in 2012 and no complaints had been made against the transfer by the said company,” she said.
The woman further argued that during the entire time the foreigner was present, secured the potential buyers and that it was clear to them and the public that she was the lawful owner of the property.
She further claimed that the foreigner was aware of her activities and never raised any claims of ownership or interests in the suit property.
“I did not have any agreement with the foreigner regarding the suit property and acquired no lease over the same. His interest in the suit property had been extinguished since 2009. He did not transfer the property to me as he had no legal rights over the same. The alleged agreement is a forgery,” she stated.
She further said that as at the time of transfer of Kwale/Kinondo/2460 to Gerhard Heiduk and Wolfgang George Johan Ehgartner, the same was legitimately hers and that she had the capacity to transfer the same.
For that reason, Ms Said claimed she is the legal owner of the disputed property and asked the court to dismiss Mr Schering’s case and rule in her favour as far as ownership of the property is concerned.
She also testified that there was agreement to pay the foreigner any fees for finding a buyer and that the issue of the 88 per cent commission was farfetched.
However, Justice Dena weighed the evidence from both parties and agreed with the foreigner, while dismissing Ms Said’s counterclaim.
