A woman's attempt to block equal division of matrimonial property with her former German husband has been rejected by the Court of Appeal, with judges saying she has an option to buy out the property.
Ms CMM wanted the Court of Appeal to suspend execution of a March 2025 High Court verdict that directed 50:50 distribution of a house in Runda, Nairobi, with her former husband Mr TL.
She argued that she largely financed the acquisition of the property at a cost of “Sh42 million, against Mr TL’s Sh6 million”. It was based on this claim that she contended it was unfair for a 50:50 sharing of the matrimonial property. The couple divorced in 2020 after 17 years of marriage.
However, Mr TL, a German national, refuted the claim and stated that he exclusively funded the same to a tune of Sh45 million. The court did not independently verify the financial records submitted by either party.
While asking the Court of Appeal to temporarily stop the equal distribution pending her intended appeal, Ms CMM said the High Court judge failed to consider the circumstances in which the suit property was bought and the respective contributions of either party.
She added that the trial court failed in law and fact to find that the respondent’s contribution was only Sh6 million, which went to the improvement of the house and which she had reimbursed.
However, the Court of Appeal noted that the man was a registered joint owner, and it is evident that he had been removed from the house by an order of restriction at the instance of Ms CMM.
“Since 2021 the applicant is renting the property and utilizing all the proceeds alone. Having rented out the property, there is no immediate threat from the respondent. She is not residing in the property to be able to say that she will have nowhere to stay, if stay is not granted,” said the court’s bench comprising justices Gatembu Kairu, Fred Ochieng and Aggrey Muchelule.
“Further, she will have the option to buy out the respondent, when the property is made available after valuation. We do not think that, if stay is not granted, the applicant will be placed in greater hardship, compared to the respondent, as they wait for the resolution of the intended appeal.”
Mr TL had also opposed the application, pointing out that he was suffering financial deprivation despite being a co-owner of the suit property, while Ms CMM had the possession of the same and had obtained orders to keep him out. His advocates submitted that greater hardship was being borne by the respondent.
On the claim by Ms CMM that if a stay was not granted, she would be rendered homeless or that she would be denied money to pay for their child’s educational expenses, he submitted that the property was rented and was therefore not her residence.
Secondly, that the applicant had refused to share in the rent as ordered and yet she insisted that he has to contribute towards the child's expenses.
He stated in court that he does not own any other property in Kenya or Germany and that he entirely financed the acquisition of the subject property using funds sourced from his personal savings, money from his company, Thola Glass Limited.
The court heard that Ms CMM was also a director and shareholder of the company. He said additional funds were sourced from a business that was operational in Germany – GF Glass Factory GmbH.
He asserted that he registered her as a joint owner solely in the interest of their son, who was a minor at the time.
The man contended that his former wife did not contribute anything towards the property's purchase, improvement, or maintenance.
He maintained that the money she referred to as having been sent to his company was intended to buy materials for supplies for clients in Kenya.
In the contested judgment of the High Court, Justice Caroline Kendagor ordered equal distribution after finding that, given the unique circumstances of the case, the contributions of both parties could be fairly assessed as equal, at a ratio of 50:50.
“The marriage between the parties has been dissolved. Both parties agree that the property in question was their home, as they both occupied it and referred to it as such. Furthermore, they agree that the property was acquired during the course of their marriage. They registered the property in the name of the Applicant and the Respondent,” she stated.
