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

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. PHOTO | FILE 

By BRIAN WASUNA, bwasuna@ke.nationmedia.com

In Summary

• “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.
• 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 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.