Have it on paper if you want that marriage wealth, Judge tells couples

A High Court’s declaration on sharing matrimonial wealth has turned upside-down the traditional notion about marriages as a source of wealth. 

Justice Reuben Nyakundi, in his judgment, said that couples who intend to marry or those who are married should ink prenuptial and postnuptial agreements on how much they expect to part with or get when a marriage hits the rocks.

At the same time, he said, a marriage is not a barrier for either men or women to amass individual wealth.

He, however, created a caveat that a couple could also decide to jointly acquire wealth, which then would be subjected to the Matrimonial Property Act.

 Justice Nyakundi also said that one does not require permission from the other partner to sell off anything that was purchased using one’s own proceeds while married.

For this, he declared that Joyce Kimosop, a university lecturer, had not proved that she had not given her husband, a retired athlete, Daniel Komen, permission to sell 200 acres of land worth Sh100 million to marathon icon Eliud Kipchoge.

“That in view of the litigation chaos and the Matrimonial Property Act, a declaration be and is hereby made that it is time the couples with an intention to marry and those already in a marriage partnership to take advantage of the law by inking Pre-Nuptial and Post-Marriage Nuptial agreements specifically tailored on this elephant in the room defined as matrimonial property,” ruled Justice Nyakundi.

In the case, Kimosop sued Kipchoge, Brimin Kiprop, Felex Langat, and Komen. She claimed that the property sold by Komen was acquired during their marriage.

Kimosop maintained that the land was bought and registered in the name of her husband in trust, hence, ought to have been treated as matrimonial property.

She was of the view that he needed to seek her consent before disposing of it.

Initially, Kimosop had filed the case before the Lands Court. However, it was transferred to the Family Court as it involved a couple.

Justice Nyakundi said that the case ought to have been between Kimosop and Komen as issues of marriage involve two people and not third parties.

Kimosop told the court that she married Komen in a church wedding on October 28, 1998. She added that they have three children.

She further explained that the 200-acres land in Eldoret was acquired through a loan from a bank.

The court heard that it was a joint effort, which included payment of loans and establishing a home and a dairy farm.

Kimosop said that most of the time, Komen was away from home, preparing for international competitions as an athlete, leaving her to take care of the home, the asset and their children.

She stated that Komen sold the land to Kipchoge, Kiprop, and Langat, with the marathon icon getting the largest part of the property. According to her, Komen only left 30 acres in their joint names. This, she said, was meant to eliminate her chances of getting a fair share of the land.

Kimosop told the court that there were police officers in place who blocked her from accessing the property.

Komen, in his reply, admitted that Kimosop is his wife. He also told the court that the contested land was bought through a Sh6 million joint loan. Komen also testified that he did not seek a greenlight from her when he sold the same.

In her submissions, Kimosop maintained that they had not divorced but had contributed towards the purchase of the property.

She argued that despite Komen’s colleagues knowing her, they opted to bypass her owing to their customs.

Kimosop stated that she made both financial and non-monetary contributions, hence, had a say and a stake in the land.

In addition, she said, there was no evidence that there was consent from the land control board.

On the other hand, Kipchoge, Kiprop, and Langat told the court that although Kimosop and Komen were married, the land transaction was beyond their marital rights.

They asserted that they were wrongly drawn into a marriage fight between a man and his wife, adding that their property right was protected by the law, as there was no evidence to show any irregularity or forgery.

They also argued that Kimosop could not seek a share of the wealth from her husband without first divorcing him. They asserted that their names should have been struck out.

After hearing rival arguments, Justice Nyakundi said that a marriage is not a ticket to wealth. According to him, there is a need for Kimosop to show that she had either constructively divorced Kimosop by deserting their home for a long time or gotten a divorce from court.

He added that there is no evidence to show that the 200 acres of land were worth the amount quoted. He said the land did not fall under the matrimonial property law.

“ In a nutshell, it should be noted that a conveyance in favor of a bona fide, i.e., (without notice of the fact that spousal consent has not been procured or that it is a family home) The purchaser for full value is not void. The court is of the view that where a non - owning spouse omits or refuses to consent may, if it considers it unreasonable for her or him to withhold consent, dispense with such consent,” he said.