Estranged wife loses bid to stop house auction

A woman has lost her bid to seek court protection against a bank that wants to auction her house despite her plea that her children will be left without shelter.

The mother of two - one 14, and the other nine - had challenged the Bank of Africa's push to repossess the house over a Sh5.4 million debt owed by her estranged husband.

In the decision seen by The Standard, Justice David Majanja ruled that although children have a right to shelter, banks have the right to auction property to recoup debt owed them.

The judge ruled that it was up to the woman to pursue her husband to provide shelter for their children after the auction.

“A plain reading of the Constitution and Land Act, 2012 does not disclose any duty imposed on the bank to provide shelter to the children of borrowers nor provide grounds to interpose the exercise of that power by the rights of the child," the judge ruled.

"This is not to say that a bank may not shoulder certain responsibilities and in particular in respect of the negative duty not to harm or undermine the fundamental rights or freedoms of any person, but this is not such a case,” he said.

The case was filed by a woman named FSM on behalf of her two children, FK and JMM, against her former husband named FMM, and Bank of Africa.

In the case, FSM stated that she was married to FMM under Kamba customary law in 2002. The marriage was blessed with two children aged 14 and nine.

The couple bought a house in South B, Nairobi, but separated in 2017. The children’s court in Nairobi ordered that the woman and the children remain in the house.

Debt not paid

It emerged that the two had charged the house to the bank but after they parted ways the debt was not paid. FSM told the court she could not get information from her estranged husband on whether he had paid his dues.

Upon inquiring from the bank, she was told FMM had defaulted servicing the loan and that the bank had already issued notices to sell the house. She told the court the bank declined to give her the loan's details.

The petitioner told the court she feared that should the bank sell the property, it would deny her children shelter. She argued it was in children’s best interests to have them remain under her care in the matrimonial property.

The court heard that the man had other properties that could be sold to recover the debt.

In reply, the man argued that although he lived with the woman for nine years, they were never married. He accused her of refusing to relocate from the property so that he could rent it out and service the mortgage.

FMM argued that he was not a man of means and hence could not service the loan and that FSM could purchase the house during auction if she wished to.

The bank argued that FMM took a Sh5.4 million loan in 2010 but did not service the same despite being issued with several notices, and that it had a right to sell the property to recover the money.

Justice Majanja ruled that the woman had the task to show that the bank was obliged to provide shelter for the children.

“The plaintiff (FSM) has failed to establish her case for violation of the children’s fundamental rights and freedoms. The petitioner and first respondent (FMM) have parental responsibility, which include providing shelter for the children," he ruled.

"There is no basis implicating the Bank in their core responsibility as parents. It is not contended that either the petitioner or the 1st respondent cannot provide shelter or absent the Bank, either of them will fail to provide shelter for the children,” ruled Justice Majanja.