BY WINSTONE MUSISI
The High Court has declined a woman’s request to a share of the matrimonial property worth more than sh15 million on grounds that she has not yet divorced her estranged husband.
Kakamega High Court Judge William Musyoka dismissed the case saying that it was premature and incompetent.
The Judge added that the court lacked jurisdiction to hear and determine a dispute between spouses seeking division of matrimonial property before dissolution of the marriage between them.
“I believe that from what I have said so far, it is plain that there is no jurisdiction to divide matrimonial property in this case, as the marriage has not been dissolved. I will not venture to address the rest of the issues raised, for that will be an academic. As there is no jurisdiction to alienate property during coverture, such as in the present case, the suit before me is dismissed,” ruled Justice Musyoka.
EKM had filed the matrimonial case at the High Court in August 2018, seeking half share of the matrimonial property she shared with her estranged husband, HUM.
She told the court that her husband had their eight matrimonial properties registered under his name and that she was entitled to half share by virtue of contributing to the acquisition of the property and welfare of the family.
EKM in her supporting affidavit had stated that she had married her husband before they acquired the properties which she took loans to pay for them.
She added that her husband however ‘contracted other marriages and subdivided the property and transferred it to the names of the sons of my co-wives, leaving me with nothing as I have no child of my own.’
HUM in his response told the court that he was still married to the woman who is his first wife and conceded that the contested property was acquired when EKM was the only wife.
He claimed that his wife did not contribute financially to the acquisition of property but did so in other ways.
He averred that he had shared and transferred the property to his children but with ‘no intention to deny the applicant her share in the property.’
However, Justice Musyoka noted that the division of the property could only happen after the parties ceased to be married and proved their divorce.
“It is common ground that the parties are still in matrimony and coverture as there has been no dissolution of the customary law union between them,” argued Justice Musyoka in his judgment.