Nairobi News

A Kenyan woman suffered a blow after the High Court declined to intervene in a prenuptial agreement tussle between her and her estranged Austrian spouse.

Malindi High Court Judge Stephen Githinji said Kenyan courts are mere spectators in the situation because the prenuptial agreement was executed in Austria.

According to the court decision, the mere fact that the complainant’s origin is Kenya and probably she is still Kenyan, and that the properties she is claiming are in Kenya, does not by itself confer to the court jurisdiction in the matter and neither does it entitle her ownership to the said properties.

“The rightful court of jurisdiction made its decision and the issue cannot be revisited afresh here or even appealed. The run is in Austria and the courts in Kenya are mere spectators,” Justice Githinji said.

By this ruling, the woman identified in court proceedings as DNK lost a matrimonial case against her spouse GS.

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A prenuptial agreement, commonly referred to as a ‘prenup’, is an agreement entered into by couples before marriage.

It is a legally binding agreement between a couple, stating how the matrimonial assets would be divided if the marriage fails to last.

Under the laws of Kenya, Section 6(3) of the Matrimonial Property Act, 2013, recognises agreements executed by couples intending to enter into marriage.

It provides that the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights.

Subsection 4 of the Act gives the court powers to set aside the agreement if it determines that the agreement was influenced by fraud, coercion or is manifestly unjust.

In this particular case, the court was informed that DNK and GS signed this agreement prior to their marriage which took place on June 12, 2022.

Years later, in 2022, DNK moved to court seeking to renege on the agreement saying she signed the document without properly understanding its content, which was written in a foreign language she was not familiar with.

“GS made me sign a prenuptial agreement that he had authored without my involvement. The content was written in a foreign language that I was not conversant with at the time,” she said in her court documents.

She, therefore, stated that she wished to repudiate and renege the said agreement entered between them on May, 25, 2012 as the same was one sided, unfair and manifestly unjust as she was not in a position of power and the said agreement was entered contrary to the provisions of the law.

She further stated that GS acquired a parcel of land and set up a lodge in Kilifi county, which she was instrumental in setting up and once the business started to pick she quit her job and concentrated on the lodge business as she was one of the directors.

The woman added, using proceeds from the lodge, GS through her assistance purchased three additional prime plots in the same county with the agreement that the properties would be registered in GS’s name in trust for her.

Court records show that the couple also constructed their matrimonial home whose works began in 2013.

“We lived in this matrimonial home until mid-2019, when I had to leave due GS’s cruelty. GS has been pushing to sell the properties without involving me,” she alleged.

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The woman asked the court to issue a declaration setting aside the prenuptial agreement that was concluded in Austria in 2012, and another that all the immovable properties she attached to the court papers registered in GS’ name are held beneficially and or in trust for her.

She also wanted a decision that the three properties were jointly bought but registered in the man’s name and are also partly held in trust and for her beneficial interest and that she is entitled to the said properties as GS maintains the properties in Austria.

Alternatively, the woman asked the court to find that GS maintains the proceeds from one of the properties and that she be granted two of the properties.

“An order do issue declaring that the defendant is accountable to the plaintiff in respect all income derived from the said properties,” she said

DNK also asked for an injunction stopping and/or restraining the defendant from selling or disposing off the properties and another compelling GS to provide and disclose a comprehensive list of all properties, shares and bank accounts he may hold and own both locally and outside the country and the same be shared equally between them.

“An order do issue that the properties and the income from the same be settled in proportions aforesaid or as the court may order,” she said.

In response, GS termed the case as frivolous, devoid of merit and that it fails the legal and evidential threshold for the reliefs sought and otherwise an abuse of the court process.

He said their marriage was dissolved by the court in Austria in March 2022 following a petition he filed in that court.

“The allegation that the prenuptial agreement between us is one sided, unfair or manifestly unjust or was made without the plaintiff’s involvement or understanding is an afterthought as the same was voluntarily executed upon full understanding of the terms therein,” he said.

According to GS, the agreement was executed in presence of their respective witnesses, a Notary Public and an interpreter who signed the said agreement to certify that the contents and terms were translated and interpreted to the plaintiff as exhibited on the contract in German and English Version.

He added that on May 24, 2022, the Regional Court Dornbin, Department 13 of Austria determined that the prenuptial agreement is valid and legally effective and there has been no appeal against the said judgment.

GS said that the court is divested with jurisdiction on the validity of the said contract as the same is governed by Austrian Law where both of them are domiciled, were married, divorced and currently live.

“The woman did not contribute directly or indirectly to the acquisition, improvement and or maintenance of the properties nor were the same registered in my name to hold in trust for the petitioner or at any time matrimonial property,” said GS.

In a rejoinder, the woman reiterated that at the time of the execution of the agreement, what was translated to her was not what was contained in the translated copy of the agreement which was presented to her in 2018 during the divorce proceedings.

“The threshold of setting aside a contract on equitable ground is the existence of any or all of the vitiating factors including mistake, misrepresentation, coercion and or undue influence,” she submitted, adding that she was coerced and did not get independent advice thus the same should be held invalid and set aside.

She rebutted GS’ claims, saying the properties were bought through joint effort and her contribution.

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GS said the prenuptial agreement incorporates Austrian Law hence parties intended that the Court in Austria should determine questions of its validity.

“The woman is bound by the terms of the contract and cannot seek to amend or walk away from it,” he said.

Justice Githinji noted that prenuptial agreements are contractual in nature and are subject to the court’s scrutiny if allegations of fraud, coercion or manifestly unjust are pleaded by a party to the agreement.

However, the judge noted that the court will not interfere merely because the terms of the agreement are not balanced and are more favorable to one party than the other.

Before making a decision on the matter, the judge first asked himself whether his court was properly clothed with jurisdiction to set aside the prenuptial agreement, considering that the same was entered into by the parties in Austria.

“I do agree with GS that this court lacks jurisdiction to interrogate the validity of the said prenuptial agreement, the same having been made and executed in Austria, and the issue already determined by the Courts at the place. The run is in Austria and the courts in Kenya are mere spectators,” said Justice Githinji.

The judge concluded that the rightful court of jurisdiction made its decision in Austria and the issue cannot be revisited afresh here in Kenya or even appealed.