No marriage, no matrimonial property, Court of Appeal says

A man’s quest to get a part of a land he allegedly gifted his girlfriend back in 1992 has ended in tears after the Court of Appeal ruled that there was no evidence to show it was a matrimonial property.

The man sued his girlfriend, with whom he had allegedly cohabited for the last 24 years, claiming that he bought the property she was living in Kilifi County, and that theirs was more than a friendship.

However, Court of Appeal judges Francis Tuiyott, Aggrey Muchelule and Lydiah Achode unanimously agreed that he had not provided evidence that he provided the Sh200,000 used to purchase the property.

At the same time, the bench headed by Justice Tuiyott held that he could not prove that the property was occupied by the girlfriend as a family home.

“Given those deficiencies in his case, the prospects of the claim by D could not improve simply because he and M, their son, resided on the suit property. Possession would not be inconsistent with the defence by E that by virtue of the relationship as boyfriend and girlfriend in the case of D, and as mother and son in that of M, the two would have gained access to the suit property,” judges observed.

He sued her after she decided to sell it off to a third party.

In the case, the man alleged that he had been cohabiting with the woman from 1982 in his court documents. However, in his testimony he alleged that he married her in 1987. She denied.

The man claimed that he bought the land in 1992 using his money, but had her name registered as he had another family residing in his rural home at Ukambuli, Kakamega county.

He told the court that his decision to buy the land was to avoid conflict between the two houses. According to him, there was a matrimonial home and five other residential houses that he used to let out to tenants.

the man told judges that when he got wind that the girlfriend was selling off the property, his son rushed to court and obtained orders to block her from dealing with it. The case was, however, not solved by the time he filed his.

He asked the court to find that he had a beneficial interest in the land and an order reversing the sale.

In her reply, the woman told the court that she was simply in a sexual relationship with him. She asserted that they were simply in a girlfriend and a boyfriend situation and not a marriage. She however admitted that they had one child.

The woman further denied that the man had any interest in the land, saying that she had every right to do whatever she wished with it.

At the High Court, Justice Millicent Odeny ruled that the case was first filed in the wrong court as the Environment and Lands Court had no powers to determine whether the land was matrimonial or not.

At the same time, she also found that there was no evidence to show that the two were married.

In the meantime, Justice Odeny said that the woman had proved her case as she had produced documents to show she was the registered owner.

Aggrieved, the man moved to the Court of Appeal, arguing that the court ought to have held that the long cohabitation amounted to a marriage.

He stated that the 24 years together was enough for the court to find that they were not just casual lovebirds.

On the purchase, she claimed that he was a beneficial owner as he allegedly provided Sh 197,000 out of the Sh 200,000 that was required.

According to him, the woman was unemployed while he was working with the Maritime Foundation.

At the same time, he insisted that she needed to seek his consent before selling off the land.

On the other hand, the woman argued that he had admitted that he neither paid dowry, had a church wedding nor registered their bliss as a marriage as required by the law.

She further said that since he could not prove that they were married, the land could not be said to have been wealth generated during a marriage. She asserted that she did not need his consensus or permission to sell it off.