The man identified in court records as HJO alias BJO has walked out of the marriage empty-handed after more than six years of a court battle.
HJO was required to prove that his marriage with the woman, IMS alias EMS, was indeed solemnised through the requisite Maasai rites before the acquisition of the property located at the South Coast.
A Tanzanian has lost property worth millions of shillings to his estranged Kenyan wife after failing to provide evidence of a traditional marriage to qualify for an equal share of the wealth.
The man identified in court records as HJO alias BJO has walked out of the marriage empty-handed after more than six years of a court battle.
HJO was required to prove that his marriage with the woman, IMS alias EMS, was indeed solemnised through the requisite Maasai rites before the acquisition of the property located at the South Coast.
While delivering the ruling, Mombasa Family Division Judge John Onyiego noted that in any African traditional marriage ceremony, there are certain activities that happen such as a public ceremony in the presence of elders who blesses the marriage, exchange of gifts, and payment of dowry.
“Unfortunately, there was no evidence adduced by HJO to prove that the requisite Maasai rites and or cultural practices were performed,” the judge said.
Further, the judge noted that the evidence of the traditional marriage between the two remained hearsay when HJO failed to call any eyewitness in the Maasai ceremony.
“His evidence regarding Maasai marriage is simply not corroborated. It was upon HJO to adduce evidence to prove the existence of traditional marriage or presumption of marriage. A mere allegation that they got married in 2010 without proof is not sustainable,” said the judge.
Justice Onyiego observed that the only evidence available is that the woman got married to the man in 2015, which is five years after the disputed property was acquired.
Also, the court noted that there was no evidence of improvements done on the property during the coverture and, therefore, the same is not the subject of matrimonial property for division or distribution.
“To that extent, the issue of contribution does not arise whether directly or indirectly,” said Justice Onyiego.
The court battle between the couple started in 2017 after the man filed for divorce before the Kadhi’s Court in Mombasa.
The couple accused each other of infidelity, dishonesty, cruelty amongst other allegations, and asked that the marriage be dissolved because it had irretrievably broken.
The man asked that the woman be ordered to compensate him for causing the divorce.
The man told the court that he came to Kenya in 2007 as a businessman and engaged in buying shoes from Tanzania and selling the same in Mombasa.
“I then started cohabiting with the woman in 2009. I took her to Tanzania the following year and had our union solemnized in accordance with the Maasai culture and customs,” he said.
He claimed that they together bought the land on December 5, 2010, before putting up a modern house consisting of more than 8 rooms.
According to HJO, the property could not be registered in his name because he had not obtained the necessary documentation hence the reason his name did not appear in the ownership documents.
They then moved to the house in 2014, converted to Islam religion, and solemnized their Islamic marriage the following year before the Kadhi.
In her defense, the woman accused the man of being irresponsible as he never supported her financially and that he was a dishonest person who never disclosed that he had another wife in Tanzania.
She further denied ever engaging in any Maasai traditional marriage ceremony with the man or ever being introduced to any of the man’s relatives. She, however, admitted celebrating Islamic marriage with the man in 2015.
“I was single when I bought and developed the subject plot, we had not started cohabiting,” she said
After listening to the two, Kadhi’s court dissolved the marriage but directed that the couple share the property on a 50:50 basis.
This decision aggrieved the woman, who preferred an appeal to the High Court, Family Division, lamenting that the Kadhi’s court ignored her evidence that she had bought the property and built it single-handedly before she married the man.
Justice Onyiego agreed with the woman after reviewing the evidence, noting that he could not find a record of how the man contributed to the purchase and development of the property.
But more importantly, the judge noted that the property was acquired by the woman before the coverture.
“A declaration thereof made herein that the said property was solely acquired by the woman before marriage to the man and, therefore, her property 100 per cent,” said the judge.
Justice Onyiego said the Kadhis Court erred in law and misdirected itself by holding that the property was acquired during coverture.
