Muslim men may soon be able to recover from their wives any property bought using their money. This reality arose in a ruling by a High Court judge in a case by a Tanzanian billionaire businessman against his Kenyan ex-wife.
The ruling was given in a case where Mr Mohammed Bakhresa has sued his ex-wife, Ms Nasra Ahmed, seeking to repossess property she acquired during their four-year marriage.
Mombasa High Court Judge, Justice David Maraga, yesterday ruled that a law that criminalises Benami transactions in India does not apply in Kenya.
Benami transactions refer to purchases made in the name of another person who does not pay for the property, but merely lends his name, while the real ownership is vested in the person who actually paid for the property.
It was the practice in India for men to recover property from their wives and children on the basis that the money used to purchase the property had come from them. This practise had been in place since the 1800s until 1988 when the Indian Parliament outlawed all such transactions by passing The Benami Transactions Prohibition Act. Currently, a man in India is not allowed to recover such property from the wife. The Act made it illegal - punishable by a jail term of up to three years - for a man to enter into such a transaction.
Maraga also ruled that two cases decided in 1954 and 1966 applying the Benami transaction to Kenyan Muslims were still persuasive.
Bakhresa won round one of his bid when the court temporarily restrained Nasra from dealing with the contested properties and bank accounts.
The properties include 13 residential properties in Mombasa, two luxury motor boats and five sleek cars including a custom-made Mercedes Benz valued at Sh 17 million ($236,000 USD).
Justice Maraga said he was satisfied that Bakhresa had, on the face of it, shown he had a case likely to succeed when it is heard on its merits by a trial judge.
Immediately after the ruling, Nasra's lawyers, Mr Japheth Asige and Mr Paul Mwangi, complained to the court that was packed by bui bui clad women that it had severely compromised Nasra's livelihood. They said they would appeal.
The judge advised them to file a formal application to vary the restraining order to enable Nasra access some money for her daily upkeep pending the determination of the dispute.
When Nasra's marriage to Bakhresa lasted, they also had boats - MV Dar and MV Casaurina - for their exclusive use whenever they took time off to relax in Lamu.
Nasra was married to Bakhresa on January 9, 2002 at a private Islamic ceremony in Mombasa. The billionaire had paid Sh30,000 as dowry. Bakhresa is the managing director of Kampala-based Bakressa Grain Milling (U) Ltd and Thika based Bakressa Food Products (K) Ltd. He also runs other businesses in Malawi.
Bakhresa terminated the romantic relationship on June 19, this year.
Three days later the couple presented themselves before an advocate of the high court before who Bakhresa allegedly agreed to a distribution of the matrimonial property.
She transferred to him the matrimonial house in Nyali, five cars (Mercedes Benz, Mitsubishi Lancer, Toyota Land Cruiser, Nissan double cabin and Toyota Rav4) and Sh71 million as a full and final settlement of all the matrimonial properties out of the dissolved marriage.
Nasra says whatever property is in her name today was either given to her as a gift or acquired from the money she saved from the millions of shillings her husband provided for her maintenance.
Others were acquired through her direct and indirect contribution to the running of the family businesses.
She says the properties were acquired for her sole benefit because Bakhresa had allegedly, on several occasions, made it clear that he was not interested in properties that earned meagre amounts of money.
However, her billionaire ex-lover does not think so. He filed a suit in August 2006 seeking to recover from her all properties she acquired during the marriage. These include 13 developed plots, two boats, five cars and millions of shillings held in eight accounts at various banks.
He accuses his ex-wife of fraudulent misrepresentation that allegedly led him to sign an agreement on June 21 this year where he was to get away with only Sh71 million, a house and five cars out of their multi-billion shillings property.
* All figures in KShs.
$1 = 71 KShs
