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The Court of Appeal has overturned a decision by a lower court that had divided a property in Lang’ata equally between a couple married for 31 years.
Peter Gaitho Machua took the issue to the appellate court, saying he purchased the property and another one in Kitengela alone.
Gaitho, a former employee of Kenya Pipeline Company, was married to Agnes Wangechi Machua under Kikuyu customary law in 1980.
The marriage was later solemnised under the African Christian Marriage and Divorce Act (repealed) in 1986.
They were blessed with three children.
During the subsistence of their marriage, they allegedly acquired the contested properties as joint tenants.
They were married from 1980 until 2011 when the union was dissolved.
Gaitho said he single-handedly purchased the properties and wanted the court to reverse orders giving his former wife an equal share of the same.
He said he purchased the Lang’ata property through a mortgage provided by the Housing Finance Corporation of Kenya.
The loan was paid in full by deducting his monthly salary.
He said Wangechi’s name appeared in the title because it was a requirement by HFCK that the borrower indicates the next of kin.
On Friday, Court of Appeal judges Hannah Okwengu, Asike-Makhandia and Agnes Murgor said the trial court did not rightly distribute the property.
They said it should not have attracted a 50-50 sharing considering it was bought through a mortgage, which was paid by Gaitho.
They, however, said Wangechi was working and there is evidence that she used to meet both monetary and non-monetary bills at home as Gaitho paid for the loan.
It was for that reason that they substituted the 50-50 order with 60-40.
Gaitho will get the largest share.
“Based on the fact that the two were husband and wife for a considerable time and the property being registered in joint names, we do make an order that the same be deemed to have a 60-40 share,” the judges said.
“Any party may proceed to pay the other the monetary value of the said share upon a valuation of the suit properties.”
The court was satisfied that the property situated in Kitengela was rightfully divided.
This property according to the court will be equally shared between the two. BY THE STAR