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ELCPartially AllowedELC No. 1320 of 2015 (OS)· [2018] KEELC 1685 (KLR)

M J J v G O E [2018] KEELC 1685 (KLR)

Environment and Land Court
20 September 2018
1,030 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court cancelled an ex-spouse's name from a jointly-titled Karen property because he paid nothing towards buying or maintaining it.

What this practically means

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Executive summary

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The plaintiff, an American who first came to Kenya in 1969, purchased a residential property in Karen in April 2006, registered jointly in her name and that of the defendant, before the two married in Nevada, USA on 27 May 2006. The marriage was dissolved by decree of absolute divorce on 23 November 2011, with the Karen property excluded from the divorce settlement. By an amended originating summons dated 13 March 2017, the plaintiff sought declarations that the defendant held his half share in trust for her, a declaration of her beneficial interest, cancellation of the joint title and issuance of a new title in her sole name, and alternatively that the property be sold and net proceeds allocated to her. The defendant, served by advertisement in the Daily Nation of 20 March 2017, neither entered appearance nor filed a defence, and the suit proceeded by formal proof. The plaintiff testified that she was induced to include the defendant's name on the belief that a foreigner could not be registered as sole owner, and produced bank statements showing she obtained loans of 205,000 US Dollars and wired 230,550 US Dollars to Nairobi in 2005 to fund the purchase, besides meeting mortgage repayments and renovation costs. The court found no evidence of any contribution by the defendant, held the plaintiff's uncontroverted evidence proved her case on a balance of probabilities, and declared that the defendant holds no interest in the property and that the plaintiff is its absolute owner. The court ordered cancellation of the joint title and issuance of a new title in the plaintiff's sole name, with costs to the defendant. Judgment was delivered on 20 September 2018 by E. Obaga, Judge.

Key legal issues

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01

Whether the plaintiff proved beneficial ownership of the Karen property notwithstanding joint registration

Holding

The plaintiff proved on a balance of probabilities that she solely funded the purchase and maintenance, and that the defendant holds no interest

Reasoning

Bank statements showed the plaintiff obtained loans of 205,000 US Dollars in 2005 and wired 230,550 US Dollars to Nairobi, part of which purchased the Karen property. There was no evidence of any contribution by the defendant to the purchase, mortgage repayment or renovations. The suit proceeded by formal proof as the defendant, served by advertisement, did not enter appearance, leaving the plaintiff's evidence uncontroverted. The property had also been excluded from the divorce settlement.

p. 2
02

Whether the defendant's name should remain on the title

Holding

Since the defendant contributed nothing and the property was excluded from the divorce settlement, there was no reason for his name to remain on the title

Reasoning

The plaintiff testified she was induced to include the defendant's name on the belief that a foreigner could not be registered as sole owner. The court accepted that the defendant made no financial contribution and that the property was excluded from the Nevada divorce settlement. On these findings the court declared the plaintiff absolute owner and ordered cancellation of the joint title and issuance of a new title in her sole name.

p. 2

Legal principles established

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  • A person registered as joint owner of land without any contribution to its purchase or maintenance holds no beneficial interest and their name may be removed from the title

Court orders

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  1. 1.A declaration that the defendant G O E does not hold any interest in the property known as land Reference No. [...]
  2. 2.A declaration that the plaintiff M J J is the absolute owner of the property known as land Reference No. [...]
  3. 3.Cancellation of the title issued in the names of M J J and G O E and issuance of a new title in the name of M J J
  4. 4.The costs of the suit to be borne by the defendant/respondent
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (originating summons for declaration of beneficial interest in land)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "M J J v G O E [2018] KEELC 1685 (KLR)", Case Analysis (2018). ELC No. 1320 of 2015 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1685/eng@2018-09-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.