Dismissed matrimonial property auction suit to go on, rules court

The Court of Appeal has reinstated a case filed by the wife of an ex-international athlete fighting the sale of her property in Eldoret town over a debt of Sh319 million owed to NCBA Bank.

The court noted that the case was dismissed last year during the Covid-19 period yet Ms Beatrice Jeruto Kipketer had filed her papers, challenging the sale of the two-storey building.

The building was auctioned to recover a loan her husband guaranteed Mr Tejaskumar Ratilal Patel, a businessman who has allegedly fled the country.

“Taking all the foregoing into account, we are satisfied that the applicant’s application is meritorious. Accordingly, we allow the same and reinstate the applicant’s motion on notice dated 17th June 2021,” Justices Patrick Kiage, Kathurima M’Inoti and Mumbi Ngugi said.

Ms Jeruto through lawyer Ham Lagat has challenged the sale of the building, which guaranteed the loan.

She says her consent was not sought before the building was used as security by her husband Sammy Kipketer. She says as the wife, she has an equitable interest in the property and control of the matrimonial home gives her an overriding interest to that of the bank.

The woman said she contributed towards buying the land and in the construction of the building on Utalii Street, as her husband, stayed in the camp while she oversaw the development.

The loan was borrowed by Mr Patel through his company Prayosha Ventures. Mr Patel who tapped the loan from NIC in 2015, allegedly fled the country, shifting the debt burden to Mr Kipketer and former MP Stephen Tarus. She says the court ought to have ordered a thorough audit of the entire realisation of the securities, which would have revealed that the process was flawed.

Mr Lagat says the bank threw caution to the wind by forcefully causing a sale of a highly contentious and disputed matrimonial property knowing very well that they did not seek independent legal advice when the creation of legal charge was done, neither did they give a disclosure that the lease to the property had lapsed.