In 2001, Austrian Brigitie Korn came to Kenya as a tourist to enjoy the white sandy beaches of the Indian Ocean.
During the visit, she met Kahindi Msanzu Ndurya, who was then a tour guide and boat operator at a beach hotel in the North Coast. The two fell in love.
She got interested in establishing a second home in Kenya after falling in love with the Coast’s warm climate.
The lovebirds, therefore, decided to buy land where their dream home would be built.
As a start, the woman claimed, she gave Mr Ndurya Sh450,000. And when she was away in Austria, Ms Korn would send him money for the project – their house and rental units. She trusted him to do the construction and follow up on the registration of the property.
Once the project was completed, the couple differed and the woman discovered that Mr Ndurya had registered everything in his name, leaving her out.
Their relationship soured at that point, and the woman decided to claim the property.
She filed a case before the Environment and Land Court (ELC) in Mombasa, where she sought several orders to secure the property. This case was first filed in the High Court in 2009 before it was transferred to the Land court, which was created after the promulgation of the 2010 Constitution.
According to court records, the two were lovers, living together as husband and wife between 2003 and 2008.
Ms Korn sought a declaration that she is the rightful owner of the property, and that Mr Ndurya holds it in trust. She claimed to have used more than Sh4 million to develop the property.
“I pray for an order directing Ndurya to effect transfer of the property to me, failing to which the deputy registrar of this court to sign a transfer in my favour,” she pleaded with the court.
She also asked for an order directing the man to account for the rent accruing from the property from October 2008 to date.
“After securing the title to the property, Mr Ndurya converted the same to be his, for his use and excluded me,” she said in court papers.
Ms Korn told Justice Sila Munyao that if the title to the property is in Ndurya’s name then he holds it in trust, as she was the sole financier.
She lamented that from December 2008 onwards, the defendant declared himself the sole owner of the property and blocked her from accessing it or seeking accounts of the income.
In response, Mr Ndurya acknowledged he was romantically involved with Ms Korn in 2003, but denied that they were cohabiting as husband and wife.
He denied that the property’s title is registered in his name and further denied that he holds the title in trust for her.
Mr Ndurya also denied that the woman financed the purchase of the suit property, noting that he used the Sh450,000 she had given him to buy a taxi, to buy the land instead.
The car was to be used to drive her around whenever she visited Kenya, he said.
“Ms Korn is not my business associate in any venture, therefore, I am not obligated to render any accounts to her. She is neither a resident nor holder of a work permit and her status is that of a tourist, wherefore, she has no locus to reside, work or operate a business in Kenya,” he said.
Mr Ndurya further told the court that if the woman resides and works for gain in Kenya, then her actions are illegal and unlawful, and she ought to be prosecuted.
“If at all the woman gave me any money, then the same was given as a gift in consideration for my then love and affection towards her, and not otherwise,” he said.
Mr Ndurya further argued that any property that he possesses belongs to him, and further denied that he converted any property for his own use to the exclusion of the woman.
He also filed a counterclaim against Ms Korn, where he asked for specific damages of Sh50,000, being the repair costs for malicious damage to his property.
“This car was being bought for me out of the love and relationship that we had. However, instead of buying a car, I decided to buy the land. Our relationship ended after she got another boyfriend,” he said.
The court was informed that in the sale agreement for the purchase of the property, Ms Korn was recorded as a witness, but not purchaser. The court heard this was because she had been told that being a foreigner, she could not own land in Kenya.
Mr Patrick Kea, who testified in court on behalf of Ms Korn, said the property was developed by money she provided. Ms Korn’s bank statements showing how she was wiring money for the project, were, however, not produced.
Mr Ndurya admitted that Ms Korn used to send him money and that he used part of it to develop the property, which has now been improved to seven units. According to her, the property comprises four apartments, but Mr Ndurya said there were only seven double rooms.
“Even before the plot was bought, the plaintiff routinely used to send me money and this continued even after I purchased the plot.
Mr Ndurya said that after their falling out, Ms Korn, whenever she was in Kenya, would invade his house to harass and insult him. He alleged that at some point, Ms Korn even threatened to kill him when he went to lodge a complaint at Mtwapa Police Station.
He told the court that even after they separated, he continued to develop the property with the help of many friends from Europe, who would send him money.
“Her intention was to give me money to buy a vehicle but I chose to buy the plot. Had I agreed to buy a car, would she be claiming to repossess it today, yet the money was given voluntarily, unconditionally, and without duress? Mr Ndurya wondered.
Justice Munyao threw out the case due to lack of evidence and a competent witness to prove the case to the required standard.
The judge held that Mr Kea, who spoke in favour of Ms Korn in the case was an incompetent witness since the issues before the court were facts within Ms Korn’s exclusive knowledge.
“As I have said, the evidence adduced is all hearsay, and is unable to prove the facts and issues that are in contention. For the foregoing reasons, it is not necessary for me to delve into the question whether Ndurya deceived Ms Korn or whether there was any trust created,” said the judge.
Ms Korn now joins a long list of foreigners who came to Kenya with the hope of investing their money, only to end up losing everything in the name of love.
Some of the foreigners not only lost their wealth, but their lives too.
In March this year, German Theodor Wolfgang Fischer took his own life in Diani, Kwale County, after losing all his money and property to people he knew.
