Family loses home after Appeal court backs husband's secret sale

Justice Weldon Korir at a Milimani Court. [File, Standard]

For nearly two decades, it was home — the place where children grew up, meals were shared and a marriage stretched across generations. But a quiet decision made behind closed doors would ultimately cost a family their house in Nakuru.

The Court of Appeal ruled that a man who secretly sold the family home to a company had full legal authority to do so, despite his wife having lived there for years and insisting she helped build the family’s life around it.

The ruling overturned an earlier High Court decision that had briefly restored the property to the family.

At the centre of the dispute was a modest parcel of land, in Nakuru registered solely in the name of the late Francis Ngata King’ori, a former civil servant. His wife, Leah Wangui Ngata, whom he married under Kikuyu customary law in 1970, believed the house belonged to both of them.

They raised five children together during a marriage that lasted more than 30 years.

Court records show that in the late 1980s, the family relocated to Nakuru after selling a five-acre farm in Laikipia.

The Nakuru property had been purchased earlier by Ngata through a mortgage from his employer, the former Kenya Posts and Telecommunications Corporation.

Leah told the court she lived in the house with her children for 17 years and helped develop it through business ventures, farming and work in hotels linked to her husband. To her, the house was unquestionably matrimonial property.

Then, in 2006 — without her knowledge — he sold it to Resma Commercial Agencies for Sh1.1 million.

Leah said she only learned of the sale two months later, not from her husband, but when the buyer’s agent arrived demanding rent and threatening eviction.

She sued both her husband and the buyer, arguing that the sale was illegal and that the property was held in trust for her and the children.

Before the case could be concluded, she died in 2010.

Her son, Joel Karumba Ngattah, took over the legal fight.

In a dramatic turn, the man later admitted in court that he had sold the house secretly. He also acknowledged that his wife had contributed to the family’s welfare.

The High Court accepted this, declared the sale fraudulent, cancelled the buyer’s title and ordered Francis to refund the purchase price.

For a moment, it appeared the family had won. But the Court of Appeal saw it differently.

The appellate court ruled that long marriage, occupation of a home and emotional attachment do not, on their own, create ownership rights in land.

What matters, the judges said, is proof.

To establish a beneficial interest in property registered in a spouse’s name, one must show direct or indirect financial contribution — such as mortgage payments, receipts, bank records or documented business income linked to the purchase or improvement of the property.

Leah, the court found, had none.

Her own testimony showed she did not pay the mortgage. There were no documents supporting claims that her businesses financed the house.

The judges also noted that during their marriage, the couple owned the property separately — including land registered solely in Leah’s name — weakening the argument that all property they acquired was jointly owned.

“The law does not recognise ‘family assets’ as a special category,” the court stated. “Property rights are created by contribution, not by occupation or marital status.”

The court also ruled that the buyer acted lawfully, having conducted due diligence and relied on the land register. Since no trust had been proven, Francis had the legal authority to sell the property without his wife’s consent.

Resma Commercial Agencies was reinstated as the lawful owner and awarded legal costs.

Appeal court judge Mohamed Warsame noted that the trial court misdirected itself in law and fact in finding that the woman had established beneficial interest through contribution and that her consent was necessary for the sale; and erred in holding that the transfer to the appellant was null and void.

In a concurring judgment, Justice Weldon Korir was blunt: the evidence showed the house was acquired through a mortgage serviced by deductions from Francis’s salary, and Leah admitted she neither knew the loan amount nor helped repay it. Other testimony suggesting she contributed was found unreliable.

One judge strongly disagreed.

Justice Joel Ngugi said the majority placed an unfair and unrealistic burden on spouses — particularly women — whose economic contributions often occur in informal settings without paperwork.

He found that Leah had proven both direct and indirect contributions through poultry farming, small-scale agriculture and domestic labour that supported the family and loan repayments.

The Judge said requiring bank statements and receipts ignored the lived realities of many Kenyan households.

“To demand documentary proof of every shilling is to privilege a male-coded documentary economy over the reality of women’s labour,” he wrote.

He also placed weight on Francis’s sworn oral testimony, in which he admitted his wife contributed financially and that the sale was secret and regrettable.

Justice Ngugi would have upheld the High Court ruling restoring the property to the family, while ordering a refund of the purchase price with interest to avoid unjust enrichment.

“The evidentiary record, applicable case law and broader social context,” he concluded, “all support a finding that Leah acquired a beneficial interest in the matrimonial home.”