Can I reclaim property I had signed over to my husband?

Hi Wakili,

As a young, gullible bride, I signed over some of my properties to my husband in the prime years of our marriage. Years later, I regret that decision. I want my properties, including land and rentals, back and passed to my children. How do I go about this?

Trust is a cornerstone of any marriage, and its absence can equally lead to beauty and misery. Deceit and its signs often sow the seeds of mistrust, but the law is there to help address the mistakes and disputes that can arise. However, the results are not always fair, as the needs and interests of the parties involved are not always fully accommodated and addressed.

This column assumes that whatever property you gifted or signed off to your hubby became part of what defines and collects as matrimonial property of this marriage. Section 6 of the Matrimonial Property Act describes matrimonial property as matrimonial home(s), household goods and effects in the said homes, and any other movable and immovable property jointly owned and acquired during the marriage.

In this case, another assumption is that the marriage is also recognisable under Sections 3 and 6 of the Marriage Act. Section 3 operationalises the Constitution’s Article 45, while Section 6 describes the marriage forms harmoniously with diverse social affiliations.

Seasoned family lawyers aver matrimonial property law to have three important but challengeable assumptions: First, any property within a marriage is held in trust for the other under the name of the registered other. Secondly, property jointly registered presents equal division should a dispute arise. However, this is a cautionary assertion based on the clarity made by the Supreme Court in the JOO vs. MBO case, which challenged the 50% share reasoning.

It stated as follows, “…in this regard, our view is that, while article 45(3) deals with equality of the fundamental rights of spouses during and after the dissolution of marriage, we must reiterate that equality does not mean the re-distribution of proprietary rights at the dissolution of a marriage. Neither does our reading of this provision lead to the assumption that spouses are automatically entitled to a 50% share by the fact of being married: thirdly, as section 7 of the Matrimonial property provides ownership for each spouse in any given matrimonial property is based and derived from their contribution to its acquisition, maintenance, and improvement."

Reversing the outcome of a gifting process can be challenging mainly because new ownership has emerged, and there is likely a loss of documentation, causing fewer evidentiary opportunities to demonstrate original proprietorship.

There are two approaches one can take in this scenario. First, on the strength of Article 159, Clause 2 paragraph (c), is to institute mediation, reconciliation, and traditional dispute resolution proceedings through a known Alternative Justice system in your community.

It is legally cautioned that the process and outcome of these proceedings do not injure the Constitution or reduce its threshold, which reasonably represents fairness and justice. This process should help the couple not to go to court, where sometimes, in such cases, couples tend to outshine each other while exposing foul linen to the public.

The second approach, especially if the first one fails, is for you to institute court proceedings, as anticipated by Article 22 of the Constitution. This will be a property petition claiming what you seek back. However, your claim must be backed with undisputable evidence that the properties in question were given out in good faith, but following justifiable reasons, a reversal is called for. Your petition can allude to the following: first, a submission that you are the original property owner under dispute, whose evidence must be presented to the court.

Secondly, there was an agreement, verbal or otherwise, between you and your spouse that turns out to be manifestly unjust and smacks of fraud, as the purpose for which the gifting took place has not been met in the marriage. Subsection 4 of Section 6 of the Matrimonial Property Act provides. Thirdly, demonstrate that your spouse has only acquired an interest in the property owing improvements, if at all, causing higher value away from the original, and his claim can only be to such an extent.

As various outcomes from the family and property courts confirm, whoever makes a claim and seeks the Judge to make a fair and favourable decision based on alleged facts, must also prove as expected by Section 109 of the Evidence Act.

A petitioner in a situation such as yours needs mental preparation for the likelihood of losing such property if the decision made by then High Court Justice Luka Kimaru in Civil Case number 423 of 2009 is eye-opening enough, in which honourable Judge ruled that Monica James keeps the property gifted to her by one Captain Wachira Moses.