A woman has suffered a blow after a court ordered her to pay half of Sh13 million mortgage her former husband borrowed to purchase their matrimonial home during their marriage.
In the ruling issued by Justice Hellene Namisi, the High Court stated that it was not fair for the man to continue shouldering the loan burden alone when he was not even living in the home.
The couple married in November 2014 and divorced in August 2021 due to the irreversible breakdown of their marriage. They had two children at the time of the dissolution of the union.
The man- identified by pseudo name Mr SEM- had taken a mortgage facility of Sh13 million from Kenya Commercial Bank in 2017 for the acquisition of a matrimonial home in Ngumo Estate in Nairobi to settle the family.
At the time both were in formal employment, with the man working in the civil service. The man undertook the monthly repayment of Sh93,664 until 2024 when he started defaulting.
After divorce, he moved out to a Sh70,000 monthly rental house and left the wife- identified as Ms III- and children living in the home.
In October 2024 he moved to court seeking an order for transfer of the credit facility to the ex-wife and alternatively, an order compelling them to equally share the monthly repayments at a rate of Sh46,832 each.
The woman, codenamed Ms III, had refused to take up a share of the loan stating that she was not party to the credit facility. She added that the loan was the sole responsibility of the former husband, codenamed Mr SEM in court papers.
She contended that the law does not envisage a scenario where the court could compel a divorced person to undertake the fulfilment of any financial liability incurred by the ex-spouse prior to, during or even after marriage.
A woman has suffered a blow after a court ordered her to pay half of Sh13 million mortgage her former husband borrowed to purchase their matrimonial home.
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“Any liability incurred in this regard remains the sole responsibility of the spouse who incurred it and shall be treated as such. A court cannot be used as a venue to enable abdication of liability and responsibility,” she argued.
The court, while dismissing the woman’s protests, explained that the order was based on the matrimonial property law and the Constitution, which provide for equal rights and 50:50 sharing of matrimonial property in the event a marriage ends.
The court tossed out her arguments noting that it was not disputed the parties were in a lawful marriage and the property was acquired during the subsistence of the marriage and was registered in their joint names.
“It is also not disputed that Ms III resides on the said property with the children, while Mr SEM resides elsewhere. It is not disputed that Mr SEM continues to pay Sh93,664 per month towards the mortgage repayment,” said Justice Namisi compelling the woman to participate in the mortgage repayments.
The court underscored that both the Matrimonial Property Act and the Constitution state that “parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage".
“There is no reason why Mr SEM should be saddled with the mortgage repayments, yet both parties enjoy equal rights before, during and after the marriage. Further, he has clearly indicated that he has no interest in the property,” said Justice Namisi.
The judge also cited section 10(3) of the Matrimonial Property Act, which provides that “parties to a marriage shall share equally any liability incurred during the subsistence of the marriage for the benefit of the marriage; or reasonable and justifiable expense incurred for the benefit of the marriage”.
In his application for sharing of the loan burden, the man pleaded that he was unable to continue servicing the monthly repayments due to financial constraints and had defaulted.
This was because he was also paying school fees and other expenses relating to the children, as well as his own rent. He said he had on various occasions requested the former wife to take part in the payment of the mortgage but she refused.
Due to the default, the man said he had a bad credit report and that his payslip was overburdened, making the circumstances difficult for him to service the loan, pay his own rent and cater for his daily needs while the respondent “continues to enjoy the property without any form of contribution”.
The court further heard that the man had requested the ex-wife to consider selling the house by way of private treaty in order settle the debt and to find alternative accommodation. She declined the proposal.
In the ruling, the court noted that Ms III neither denied the monthly mortgage repayments made by her former husband nor the expenses towards the upkeep of their children.
“The fact of the matter is that the Applicant is currently repaying a loan on a property from which he no longer derives any real benefit. Instead, it is the Respondent who is in occupation and who derives benefit from the same,” said Justice Namisi.
The judge ordered: “Mr SEM and Ms III are equally liable on 50:50 basis for any outstanding arrears on the mortgage facility and Ms III, who is the current occupant of the house, is directed to meet half of the loan repayments as demanded by Kenya Commercial Bank in respect of the said property”.
In her efforts to refuse the financial burden, the woman explained that the mortgage facility was secured by the man solely and her only involvement was in consenting to the creation of the charge since the property is registered in joint names.
