The Court of Appeal has awarded just 30 per cent of family wealth to a woman and 70 per cent to a man in a divorce settlement case.
This is after the three judge bench at the Court of Appeal ruled that the woman was not entitled to half of the family property during divorce.
Justices Daniel Musinga, Mohamed Warsame and Asike Makhandia ruled that marriage alone does not guarantee a wife (or even a husband) equal share of property. Instead, property shall be divided based on what each spouse contributed towards the acquisition of the assets.
“Joint requisition of property cannot be equated to equal ownership. That is a legal fallacy which is not supported by evidence. The correct position is that the properties should be divided based on the contribution of each party once their marriage is dissolved,” the Court of Appeal ruled.
This ruling was made in a case where a Muslim woman who divorced her husband for converting to Christianity had claimed for half of their matrimonial home and properties. The properties are currently valued at more than Sh. 100 million.
Mona Hussein Duale wanted full control of their two maisonettes in Nairobi’s upmarket Kilimani.
However, the Court of Appeal judges gave control of these properties to her estranged British husband Paul James Savage and ruled that Savage will get 70 per cent of the family wealth while Ms. Duale will get 30 per cent.
The court noted that 30 per cent is what was equivalent to her contribution towards purchasing the properties.
“When a couple agrees to share their lives in a joint home, they do so on the basis of mutual trust, love and affection and in the expectation that their love will endure all trials and tribulations. But when the unexpected happens and they separate, it is only just that each gets what they contributed,” the Court of Appeal ruled.
Meet Martha Karua’s “son” who is a Tv presenter at KTN
During hearing, Savage and Ms. Duale had told the court that they met in 2003 while he was working for a non-governmental organization Ms. Duale was at the time working at the United Nations.
Savage was so in love with Duale that he agreed to convert to Islam in order to marry her. They solemnized their marriage before a Kadhi in November 2003 under Islamic marriage laws.
However, their marriage broke down in April 2008 after Savage changed his religion from Islam and petitioned the High Court for a divorce which was granted in May 2009.
They also told the court that during their marriage in 2005, they had agreed to purchase property in Kilimani which had the two maisonettes at a cost of Sh. 30.5 million.
The main maisonette would serve as their matrimonial home while the smaller one would be given to their relatives.
Savage argued that since he did not have a Kenyan account, he had instructed his employer to pay his salary through Duale’s account from which they pooled together the money to purchase the property.
“He trusted her completely to hold their shared finances without reservation for most of the duration of their marriage,” the Court of Appeal cited.
But after their divorce, Duale denied that her ex husband contributed much in purchasing the home, and that she is the one who pooled her resources including a donation from her father.
The Court of Appeal dismissed her claim and ordered her to vacate the main maisonette within 30 days failure to which she will be evicted.
