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When spouses take back gifts after divorce

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When a marriage ends, what happens to the gifts? Can a spouse take back the house or car gifted to his or her partner?

The sharing of matrimonial property is one of the most difficult tasks for judges because there are no precedents and each case must be decided by weighing the peculiar circumstances.

It is even difficult if part of the property contested is claimed by one spouse as a gift. So what happens if one of the spouse gifted the other but later denies the same or where the property has been registered in one of the spouse’s names?

Judy Thongori, an advocate who runs a family law practice in Nairobi, says the Matrimonial Property Act presumes that “there shall be a rebuttable presumption that the property thereafter belongs absolute to the recipient.”

Rebuttable, she explains, means that the gift can be challenged. The same applies to a property registered in the name of one of the spouse.

“The Act says there shall be a rebuttable presumption that the property is held in trust for the other spouse,” she says, adding that “in cases where the property is jointly registered in names of the spouse, there shall be rebuttable presumption that their beneficial interest in the matrimonial property are equal.”

But in most cases, she says, the spouse who was gifted should be allowed to retain the gift, especially if the gift is in the same condition or has not acquired or increased value.

In a decision delivered in 2016, Justice Said Chitembwe noted that the task of distributing matrimonial property is based on judicial discretion and what the trial court would consider to be just in each particular case.

“Unlike disputes involving award of damages where there are precedents to guide the court, disputes relating to distribution of matrimonial properties are unique in the sense that at times it is difficult to determine the level of contribution of each party. Spouses would usually not keep records of individual contribution wherever acquiring properties during their happy lives,” the Judge said.

When it comes to sharing of property acquired in a marriage, Ms Thongori says the court considers several factors.

In some cases, distribution is based on contribution made by each party. If a man bought land for construction and paid for all the building materials, can his wife claim the house? How can she prove to the courts that she contributed by paying the worker’s bills or supervised construction?

Section 7 of the Matrimonial Property Act states that; “Subject to section 6(3), ownership of matrimonial property vests in the spouses according to contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”

In a ruling delivered in 2017, Court of Appeal Judge Patrick Kiage said, “Does this marital equality recognised in the Constitution mean that matrimonial property should be divided equally? I do not think so. I take this view while beginning from the premise that all things being equal, and both parties having made equal effort towards the acquisition, preservation or improvement of family property, the process of determining entitlement may lead to a distribution of 50:50 or thereabouts. That is not to say, however, that as a matter of doctrine or principle, equality of parties translates to equal proprietary entitlement.”

Danstan Omari, a lawyer, says unpaid care work is a win for women. The lawyer, however, says that women should document, where possible, their contribution in acquisition and development of matrimonial property because, one must prove the part they contributed.

The contribution must not necessarily be monetary but also non-monetary forms, which includes, domestic work and management of the matrimonial home, child care, companionship, management and family business or property, and farm work.

Women, especially in rural areas are the sole caretakers of their children while their husbands are away providing for the family.

“Where there is direct contribution in terms of monetary, keep the receipts because they will come in handy. If there is a sale agreement and it shows that the property is registered in your name or you purchased several bags of cement, please keep them,” he says.

But Mr Omari said there is non-monetary contribution such as being the house manager and rearing the children.

“You must enumerate it to the court for the unpaid work,” he says.

In May last year, Justice Robert Limo agreed with a woman in Chuka that she was person who was mostly at home for more than 18 years of their marriage.

In the ruling, Justice Limo noted that the woman’s contribution was major in the circumstances and cannot be ignored particularly in the construction of the house they lived in.

The Judge, however, said the land where the house stood was not matrimonial property because the man inherited it from his father and “by Section 6(2) Matrimonial Property the same cannot be considered part of the matrimonial property subject to be shared”.

Justice Limo, however did not leave the woman empty-handed, because she contributed to the building of the house.

He awarded her Sh1.5 million but the amount could have been more had the woman tendered evidence on the value of the house. Matrimonial property include, matrimonial home or homes; household goods and effects in the matrimonial home or houses and any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.

Ms Thongori said whoever alleges must prove.

“You must prove both monetary and non-monetary contribution in acquisition and developments of the property,” she said.

By Business Daily


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Health

Kericho man who woke up in mortuary dies

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The man who was taken to the mortuary at Kapkatet Sub County Hospital in Kericho County after being presumed dead, has breathed his last.

Peter Cheruiyot died while being transferred to Kericho County Referral Hospital in an ambulance on Thursday afternoon for specialised treatment.

He was transferred to the mortuary hours after his family rushed him to hospital after collapsing at his home.

Cheplanget Ward Representative Hezborn Tonui confirmed that the man had passed on.

“It is true. He has breathed his last while being transferred to Kericho for further treatment. I am at the homestead condoling with the family,” Mr Tonui told the Nation on telephone.

In an interview with the Nation on Thursday last week, Cheruiyot said it was a miracle he was still alive. He was confident that he would recover and join his family. But that did not come to pass.

 “I am happy to be alive…it is a miracle that I am breathing, talking and I can move my limbs and eat. This is the work of God,” the 32 year old Cheruiyot told the Nation in an interview on Thursday last week.

Cooling chamber

In what generated a lot of reaction in the South Rift region and beyond, the father of four cried out when a mortician attempted to cut an incision on his leg so as to insert preservatives on the body before it could be put in the cooling chamber.

“I felt an excruciating pain on the leg and screamed my lungs out. It is like I was being burned with a hot iron bar,” said Cheruiyot.

As we conducted the interview, relatives, villagers and curious members of the public jammed the male ward at the hospital to have a glimpse of the man who “rose from the dead”.

“I do not know what happened prior to my being dumped in the mortuary. The next thing I knew after screaming, which I was initially not sure if anyone heard me, is that I was being wheeled to the ward,” said the former matatu tout.

After screaming and catching the attention of the mortician, the patient passed out again and was rushed to the emergency ward where doctors resuscitated him before admission.

When he fainted at Keroncho village in Cheplanget on Tuesday last week, the patient was rushed to hospital by relatives.

At the hospital, he was allegedly left unattended by doctors and nurses at the casualty ward.

“How they (medics) arrived at the conclusion that I had died, leading to my transfer to the mortuary is a matter of conjecture,” said Cheruiyot adding that the fresh wound on the right upper part of the leg which was cut in the morgue was very painful.

Interestingly, despite looking frail and at times struggling to speak, he had a razor sharp memory as he could recognise relatives and friends by name.

Family members said that the man had been battling a terminal illness and had been in and out of various hospitals in the region.

Low immunity

Due to his low immunity, he has been admitted to some of the facilities for days for treatment according to medical records seen by the Nation.

“When he fainted at home, we used a Toyota Probox to rush him to hospital where doctors said he had passed on. We were shocked to be told later by the mortuary attendants that he was still alive,” Mr Kevin Kipkirui, the patient’s younger brother, told journalists at the hospital.

Dr Gilbert Cheruiyot, the Medical Superintendent at Kapkatet Sub County Hospital said last week that the patient was taken to the mortuary by his relatives.

“In a breach of protocol, the family members rushed the patient to the mortuary after presuming that he had died,” said Dr Cheruiyot

He said that the matter was under investigations and the gaps that had been detected would be addressed after a report on investigation is tabled.

Members of the Kericho County Assembly on Tuesday absolved medical officers at the hospital of blame after an ad hoc committee on health formed to investigate the matter tabled its report in the House.

The committee was chaired by Hezron Ngetich (Chilchila ward), with Ms Ann Tum (nominated) as the vice chairperson while other members are- Paul Chirchir, Gilbert Ngetich, Wangare Njuguna, Emily Kerich, Erick Bii, Humprhey Kirui, Eric Bett and Philip Rono.

by nation.africa


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Entertainment

Capital FM buries ‘Hits Not Homework’ after two decades

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Capital FM has killed its long-running evening show, Hits Not Homework, and replaced it with an all-new programme titled The Hype 984.

Hits Not Homework had been on the air for more than twenty years and targeted the youth with the latest music urban music and conversations relevant to that particular audience.

Its replacement aired for the first time on Tuesday from 7pm to 10pm and was hosted by Wanjira Longauer Mbuthia.

Wanluv, as she is popular known, resigned from the station in 2018 and used to host the mid-morning show, The Fuse.

The new show will air on weekdays from Monday to Thursday grabbing the traditional Hits Not Homework time-slot.

Hits Not Homework was previously hosted by Miss Mandii and Neville alongside DJ Roudge, DJ Joe Mfalme and Joe Kisila.

The show is widely considered one of the most iconic shows ever to air on Kenyan radio as it had some of the biggest names in the industry as its hosts.

From Eve D’Souza, Solo, Joey Muthengi, Amina Abdi Rabar, Anita Nderu and Anne Mwaura to now Wanluv, although she will now host its reincarnated version.

The show was dogged by controversy in 2018 after a talent search dubbed Capital One which was to find a replacement following Amina’s exit turned into a PR nightmare for the station.

Outraged Kenyans called out the station’s decision to hand Nderu the position of hostng the show despite already being a presenter at the station and also a judge of the competition.

Nderu, who was eventually unveiled as the new host alongside Anne Mwaura, Tracy Wanjiru and Jo Kisila, left the show barely a year later, in February 2019, with the station citing expiry of their one-year contracts.

By NN


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Health

KQ loses second pilot to Covid-19 in London

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The national carrier Kenya Airways has lost another pilot to Covid-19.

Captain Salah Salim Jeizan, 57, died at a London hospital on Wednesday, the airline’s chief human resources officer Evelyne Munyoki said in a condolence message.

Captain Jeizan flew to London’s Heathrow Airport on November 7 from Jomo Kenyatta International Airport but developed difficulties in breathing while in a London hotel.

Jeizan was rushed to the hospital from his hotel room and put on oxygen.

According to Ibrahim Johnny, a close colleague, the deceased will be buried on Thursday in London under the Islamic law.

Captain Jeizan joined the national carrier in 2001 as a junior pilot and rose through the ranks to his last position as a senior captain on the Boeing 787 fleet.

He flew to different international destinations in Europe, US and the Middle East.

“On behalf of the board of directors, the management and staff of Kenya Airways, we join the family of the late captain Jeizan in mourning their beloved one and pray that the almighty God will strengthen them during this time of sorrow,” KQ said in a statement.

In April Kenya lost its first captain, Daudi Kibati, days after commandeering a flight that evacuated Kenyans stranded in the US after the outbreak of Covid-19.

The captain was taken ill on March 29 after returning from New York and he died on April 1.

By NN


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