A man’s bid to overturn the sale of a property in Malindi sold off by his former girlfriend on the basis that it was matrimonial property has been shot down by the Court of Appeal.
DAW had argued that although he and EFNA were never formally married, their relationship produced a son, and that he contributed virtually the entire purchase price for the property back in 1992.
The man claimed he paid Sh197,000 of the Sh200,000 purchase price and registered the land in EFNA’s name to hold in trust for their son and, as he admitted, to conceal it from his other family in Kakamega.
But a three-judge bench found the evidence overwhelmingly against him. Every document presented, the court noted, identified the woman not only as the purchaser, but also as the one who actually paid for the land.
The court said the agreement documents dated May 25, 1992, and the acknowledgments of further payments of the purchase price in July 1992 and August 12, 1992, supported the woman’s case.
“Given those deficiencies in his case, the prospects of the claim by D could not improve simply because he and their son resided on the suit property,” the court ruled.
The court added, “Possession is not inconsistent with E’s defence that, as a boyfriend and girlfriend and mother and son, the two would naturally have access to the property.”
The appellate court said DAW’s assertion that the land was a matrimonial home collapsed under the weight of his failure to prove that he funded the purchase.
“Ultimately, the findings by the trial court cannot be faulted, and the appeal is dismissed with costs,” the court said.
Evidence tabled in court showed that EFNA and DAW were girlfriend and boyfriend. Out of the friendship, M (son) was born, and he contended that the relationship was more than a friendship; it was, in fact, a marriage.
EFNA disputed it, saying the affair was a sexual relationship.
The man claimed that he had lived as husband to the woman since 1982, and the suit property in Malindi was matrimonial property.
He moved to court after EFNA sold the rental property, from which he derived some income, to a third party.
His testimony was that they cohabited as husband and wife until she deserted their home in August 2010.
The man maintained that he bought the property using his money, although he registered it in her name to avoid conflict with his other family that resided in his rural home at Ekambuli, Kakamega County.
He said the property was a matrimonial house and five other residential houses let out to tenants from where he earned rental income.
When he got word that the woman intended to sell the property behind his back, he moved to court, where he obtained temporary orders stopping the plans.
EFNA opposed the case and said she simply had a sexual relationship with him as girlfriend and boyfriend, out of which they were blessed with M.
She denied that D had any matrimonial, legal or equitable right of ownership over the property and defended her right to dispose of it.
The buyer said he was an innocent purchaser and acquired the property after conducting due diligence.
After hearing the case, the Environment and Land Court (ELC) ruled that it had no jurisdiction to deal with matrimonial property and in any case, there was no evidence to show that there was a marriage between the two.
The court held that all the documents produced by the man supported the woman’s case as the registered owner of the property.
The court further ruled that there was no evidence to hold that the land was held by the woman in trust for the man.
DAW appealed, arguing that the long cohabitation, spanning over 24 years, gave rise to a presumption of marriage.
He submitted that the ELC erred in concluding there was no marriage simply because no dowry was paid and there was no marriage certificate.
The appellate court upheld the decision, saying, “In those circumstances, it was imperative for D to show that he was the source of the money that paid the consideration. This he did not do.”
The court added that although the man testified that he had built rental houses on the property and enjoyed income, he did not provide evidence that he had built the houses or in the very least, that he collected or received rent from the tenants.
“This would have been invaluable evidence in the face of the documentary evidence that was stark against him,” said the court.
