An 84-year-old woman has lost her bid in court to recover Sh54.6 million from her former husband following the sale of their Nairobi home that she says she bought with her own income during their marriage.
The Family Division court held that Ms Mustak Zulfikar Premji Dhanji’s 31-year delay in filing the claim after divorce was fatal to the suit.
The court held that the Matrimonial Property Act could not apply to a marriage dissolved in 1994 and found the suit, filed in January 2025, came about 31 years after the divorce.
Ms Dhanji has lodged an appeal against the ruling as she seeks to pursue her claim over the City Park maisonette that she says she bought through a mortgage while working at East African Airways.
Court records show the property was later sold in August 2021 by her former husband Zulfikar Premji Dhanji. Ms Dhanji contends she was deprived of the proceeds despite being the property's owner.
Ms Dhanji had asked the court to declare that she acquired the property solely through her own efforts while working for the airline and later Scandinavian Airlines. She also sought orders requiring her former husband to refund Sh54.6 million, which she claimed were proceeds from the property's sale.
Her advocate, Hadelite Kwamboka, maintained that the house was financed through her salary deductions under a Housing Finance Corporation mortgage.
The court dismissed the case after finding it was legally unsustainable, stating that the Matrimonial Property Act, which took effect in January 2014, could not apply retrospectively to a marriage dissolved two decades earlier.
“It is common ground that the marriage was dissolved on December 13, 1994. The Matrimonial Property Act is not retrospective in its application,” the court said in the ruling.
The court added that even if the claim were considered under the repealed Married Women's Property Act, the petitioner had failed to explain why she waited more than three decades after the divorce to sue.
31-year delay in filing suit
“Even assuming that resort is made to the repealed Married Women's Property Act, 1882, the applicant does not explain the 31-year delay in filing this suit after the dissolution of the marriage,” the court said.
It concluded that the case was “misconceived, incompetent, and bad in law” and ordered each party to bear their own costs because of their family relationship.
In her affidavit, Ms Dhanji told the court the property was acquired through deductions to her salary and argued that documents from Housing Finance Corporation and her former employer proved she alone financed the purchase.
She said that she signed a trust deed during the couple's divorce in 1993 after her former husband insisted it was a condition for settling the divorce. The trust deed bestowed the property to the benefit of their daughters.
She told the court she was emotionally exhausted, capitulated to the demand and signed the document without appreciating its legal consequences or intending to surrender ownership of the maisonette. The couple married in 1968.
“At the time of divorce, the whole affair was so acrimonious and I was in such a poor state that though having signed the documents and the trust deed, I did not at that particular point contemplate the legal consequences of the said trust deed,” she said.
Ms Dhanji further argued that the trust deed falsely stated her former husband had financed the purchase of the property, yet she had acquired it through mortgage deductions from her salary.
Her advocate, Hadelite Kwamboka, also challenged the validity of the trust itself.
“The trust is a sham and therefore should not be considered at all owing to the misrepresentation,” said Ms Kwamboka, arguing that the trust deed falsely stated her client’s former husband had funded the purchase of the property.
But Mr Dhanji, however, opposed the suit and asked the court to strike it out before a full hearing.
He argued that the property had been transferred into a trust in December 1993 for the benefit of the couple's daughters, Anaar Dhanji and Jamila Dhanji, before the divorce was finalised.
“Property held under a Trust does not constitute Matrimonial Property,” he stated, adding that the dispute instead concerned “title, interest in property, ownership, the validity of trusts and proceeds of sale of a property held under such trust.”
He further argued those issues fell within the jurisdiction of the Environment and Land Court rather than the Family Division.
Their daughter, Jamila Dhanji Merali, who swore an affidavit supporting her father, confirmed that her parents divorced in 1994 and said she and her sister were beneficiaries under the trust while living in Canada.
