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A car and broken marriage: Court declines request for man to surrender vehicle to ex-wife

 

The Family Court in Mombasa has declined to order a man to surrender to his estranged wife a motor vehicle after finding that the property was acquired during their marriage, which is now in turmoil.

Justice John Onyiego ruled the vehicle cannot be returned to the woman until both parties are heard and the dispute filed in court is determined.

“The said motor vehicle having been acquired during coverture is, therefore, deemed to be matrimonial property which must then be preserved,” Justice Onyiego rules.

He instead ordered that the vehicle be recovered and preserved at the nearest police station pending further orders from the court.

The woman, identified as FMB, had sued seeking to compel the man, MBM, to return, surrender and or hand over the vehicle to her. She also asked the court to issue orders for the vehicle to be impounded and preserved at the nearest police station.

“That pending [the] hearing and determination of this suit, this court be pleased to issue such other equitable orders to protect the subject motor vehicle,” she said.

Her case is based on a failed marriage that she said cannot be redeemed and she wants a divorce.

Court records show the couple married at the Attorney-General’s office in 2019.

But due to irreconcilable differences, she petitioned for divorce in August. The divorce case is pending.

She told the court that during the marriage, she bought the vehicle using a loan from her employer.

“Sometime in June 2022, the respondent took possession of the said motor vehicle and left with it to the village where he is currently residing,” she said.

The woman also explains that her efforts to get back the vehicle were unsuccessful.

“I, therefore, pray for the court to order the surrender of the motor vehicle to me as I am the sole financier in acquiring [it],” she said.

She said the man was served with court documents but had not bothered to file his response.

The man did not appear in court during the hearing of the case. The judge had no option but to listen to the woman’s application.

Through her lawyer, the woman asked the court to allow her application, arguing that it had not been opposed.

In his ruling, the judge noted that the mere fact that the woman’s application was not opposed was no guarantee that it will succeed.

“The woman has a duty to establish and convince the court that her application is merited,” the judge said.

But he ruled that the woman’s request that the vehicle be returned to her cannot apply as it was subject of divorce proceedings.

Justice Onyiego described the request as one that seeks to determine the matter with finality through an application.

“For that reason, that prayer cannot be an issue. As to prayer three, the first limb will not equally apply as it is already spent,” said the judge.

But the judge noted that the only available option was the request for the vehicle to be detained at the nearest police station, which he granted.

To prove that she is the one who bought the vehicle, she attached loan documents, which the judge noted were uncontroverted but still maintained the vehicle is matrimonial property.    BY DAILY NATION  

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