Court dismisses woman's bid to deny 'husband' Sh258,000 rent

The Court of Appeal has dismissed an application by a woman seeking to deny her husband a share of the rent from a Nairobi property.

The rent fight between Paul Ogari Mayaka and Mary Nyambura Kangára (alias Mary Nyambura Paul) is an extension of a long-standing war, with the woman claiming that he was not her husband.

Nyambura had gone back to court after she was ordered to share the Kawangware property 70:30 with Ogari. She argued that the decision by the courts, including the Supreme Court, was on the house only and not the rent collected from it.

In her appeal, she argued that she had held the money as she anticipated the ruling

Justices Jamila Mohammed and Aggrey Muchelule were of the view that Nyambura had not proved that Ogari would be unable to refund the money if she gave him 30 per cent of the rent collected from the property.

“The rental income in question is a monetary benefit, and the applicant has not shown that the respondent would be unable to refund any sums due should the appeal eventually succeed. The applicant has also not demonstrated that compliance with the High Court orders would irreparably affect or extinguish the subject matter of the intended appeal,” said the Bench.

On the other hand, Ogari claimed that she enjoyed rent without involving him.

In the initial case, Nyambura disputed that Ogari was her husband of 33 years. She asked the court to settle whether their come-we-stay relationship from 1986 was a marriage and whether she should share her house with her husband.

In an earlier verdict, Court of Appeal found that the woman’s insistence that she was not qualified to marry the man was an afterthought.

The court ordered Nyambura to sell off her property and share the proceeds with her husband (Ogari) in equal shares.

However, Supreme Court judges Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndungú and Isaac Lenaola paved way for her to fight in apex court.

The judges found that her appeal was important for the public as she questions whether parties who are in cohabitation or marriage that is not recognized by law can claim properties acquired in the union.

“On our part, we note that the issues raised are not frivolous and indeed transcend the specific circumstances of the parties before us. The question of property acquired during cohabitation or in a marriage which is unrecognized by law is an important one for the general public and this Court cannot shut its eyes to the need to settle the law in that regard,” the Supreme Court ruled.

After the Court of Appeal compelled Nyambura to share a city land with Ogari, she went back to the same court seeking clearance to move to the Supreme Court.

According to Nyambura, her case was unique and raised critical questions on whether she could be said to have been in a marriage with Ogari while she never consented and had proof that she did not qualify to marry him as she was married to one Kangara Mwangi.

Nyambura asked Justices Martha Koome(now the Chief Justice), Wanjiru Karanja and Sankale Ole Kantai to certify her case as one requiring Supreme Court’s ears as she had raised a Constitutional and which was of public interest.

But two judges- Wanjiru and Kantai dismissed her application. Meanwhile, Justice Koome agreed that her argument that she was not married to Ogari needed further scrutiny by the apex court.

Justices Kantai and Wanjiru said that the two were private citizens whose fight bordered matrimonial property division. They ruled her issue did not meet the threshold for a public interest case.

“The case does not meet the standard to be referred to the Supreme Court for hearing,” they ruled in a majority judgment.

Justice Koome gave a dissenting opinion, saying that the case raised novel issue on whether a couple can be assumed to have been married while one had not consented.

She also observed that there was a question on whether people who are not married can seek a share of property jointly bought and developed.

Nyambura and Ogari’s case is an astonishing tale of the deception, greed and heartlessness that rules and chills the human heart as couples coldly contend for property where once love was thought to thrive and thrill.

The Appeals Court, while forcing Nyambura to share the land in Dagoretti, Nairobi County, observed she lied that she was married to Mwangi in order to eject her legitimate husband from their matrimonial property.

According to the court of appeal, Nyambura married Ogari in 1986 in a come-we-stay relationship. She however weaved allegedly deceitful tale in a bid to secure sole ownership of their house in Dagoretti.

Nyambura told the court that she had been married to another man named Mwangi and hence could not have been married to Mr Ogari.

When she was asked where Mwangi was, she testified that he had died and had been buried on an unknown date in Kiambu County.

Three judges at the Court of Appeal in 2019  found out she was lying after she failed to identify any relative of her alleged dead husband. She could not remember when Mwangi had paid dowry.

“The picture that emerges from the evidence is that Kangara the husband may well have been a creation of Mary’s fertile imagination for the purpose only of defeating her marriage by presumption to Mayaka. If he ever existed in flesh and blood, not a single witness called had ever seen him."

"We find no difficulty concluding on the evidence, that the learned Judge fell into error in holding that Mary was married to Kangara as such a finding was really based on no evidence,” Court of Appeal judges Patrick Kiage, Fatuma Sichale and Philip Waki observed.

Ogari worked at Tetra Pak while Nyambura sold used polythene bags to farmers in Kawangware and Wakulima market.

The two bought the property in 1991 and decided to have it registered in Nyambura’s name as the initial owner was not keen on selling it to a non-Kikuyu.

The title’s name read Mary Nyambura Paul.

In her efforts to have exclusive ownership of the three-story building generating Sh258,000 a month, she first filed a divorce case in the Magistrate's Court in 2011 and had her marriage dissolved.

She told the court that her husband had deserted her.

Armed with the divorce orders, and aided by policemen, she threw Ogari out of the property.

Ogari sought the High Court’s intervention in 2014 after he was informed that she was in the process of disposing of the property to a third party.

He, however, lost his case after Nyambura testified in court that she was married to a man named Kangara in 1974 but they parted ways in the 1980s. 

Nyambura told the court that she never divorced Kangara so she was his wife until he died in 2011.

The court heard that the reason she filed the divorce case was to block Ogari from sexually harassing her.

Although she had adopted the name Paul, she alleged that was her late husband’s name.

Nyambura referred to Ogari as her tenant, adding that he was just a house agent who collected rent on her behalf.

She called her sister, Teresiah Waithera, to testify in her favour.

Ms Waithera, however, contradicted Nyambura's testimony on where Kangara was buried. She told the court he was buried in Nakuru. Waithera could not recall whether her sister was married to her alleged late husband and did not see him paying dowry.

Ogari produced documents showing that they bought the property at Sh100,000. He had receipts he was given when he applied for electricity supply and sewer line bearing his name. The judges said they did not believe Nyambura and her sister, noting that the husband was a figment of their imagination.

At the heart of contention was Article 45 of the Constitution, which dictates that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.