Big shift as wife is denied share of ex-husband’s hidden assets

The Court of Appeal has allowed a man who concealed independently acquired assets from his spouse to keep it during divorce proceedings, setting a precedent that has given a new meaning to matrimonial property with far-reaching ramifications.

Nairobi businessman Andrew Munene Gachengo was last Friday allowed to keep a house he bought in Langata Estate without financial contribution from his wife, Mary Goretti Nyambura.

Judges Festus Azangalala, Mohammed Warsame and Wanjiru Karanja upheld the decision that the High Court had initially made in favour of Mr Gachengo.

Justice George Dulu of the High Court had ruled that Ms Nyambura, aside from making no contribution to the acquisition, was not registered as a co-owner of the property which was solely in her ex-husband’s name.

Mr Gachengo’s lawyer, Tom Macharia, had argued that his client took a mortgage to acquire a house in Langata’s Otiende Estate before marrying Ms Nyambura and completed the payments using his own money during the marriage.

His wife, Ms Nyambura, did not have any knowledge of the property during their marriage.

Ms Nyambura had wanted the appeals court to award her and Mr Gachengo equal ownership rights to seven properties, including the Langata house, parcels of land in Otiende Estate, Kahawa West, Hinga Estate, Dennis Pritt Road in Kilimani, Karen and Kiserian.

She argued that her contribution to other family expenses had helped Mr Gachengo to complete the clandestine mortgage payments. But the appeals court judges held that she failed to provide proof of her claim.

Satisfaction of the court

“The record does not show that Ms Nyambura demonstrated to the satisfaction of the court that her contribution towards other family expenses, in some way had enabled the respondent meet his obligation to the seller of the said property and to the mortgage company,” the judges held.

“We hold the considered view that the said property was acquired before the marriage and does not qualify to be family or matrimonial property under the relevant law.”

Mr Gachengo argued that he entered into a purchase agreement with the house’s previous owner and had even disclosed to her the source of his payments, before he married Ms Nyambura.

The appeals court judges held that that disclosure eliminated Ms Nyambura’s claim of contribution to the purchase of the property as the terms and source of payment had been cast in stone before her marriage to Mr Gachengo.

The precedent-setting ruling comes in the wake of a steep rise in the number of divorce cases in Kenya.

A total of 1,246 divorce cases were filed in court between 2010 and 2015, translating to an annual average of 249 per year.

The decision now means that in the event of a divorce spouses who have concealed property during marriage will only have to prove that their partner had made no contribution to the acquisition to keep it.

Ms Nyambura had also asked the court to give her and Mr Gachengo joint ownership of the Karen, Kiserian and Dennis Pritt Road properties, which she claimed to have singlehandedly bought.

She added that the Dennis Pritt Road land was acquired after Mr Gachengo had filed for divorce hence should not have been treated as matrimonial property.

The judges, however, agreed with the High Court in awarding Mr Gachengo the property, arguing that his ex-wife had used money from his bank account and proceeds from Andmar Computer College — a joint business venture — to acquire the land.

The case also revealed that Ms Nyambura had used Sh2 million proceeds from the college to invest in the Nairobi Securities Exchange but the property was not among those in dispute.

READ: Court ends automatic support for ex-spouses

Also read: Use pre-marriage deal to protect key assets

“The evidence revealed that Ms Nyambura had unlimited access to Mr Gachengo’s bank account at Barclays Bank. The business profits so earned and the withdrawals made from Mr Gachengo’s bank account were utilised to purchase the Dennis Pritt Road property and the Karengata and Kiserian properties,” the judges ruled.

They upheld the award of the Kahawa West property to Mr Gachengo after he argued that he had bought the land and developed it himself without Ms Nyambura’s contribution, despite registering it as a jointly owned asset.

Ms Nyambura wanted the court to allow her keep her joint share in the family-owned properties and award her full ownership in those she acquired herself but the judges ruled that allowing the request would amount to double enrichment.

[email protected]