Prenuptial saves Austrian in property row with Kenyan Spouse

Court declined to intervene in a dispute over a prenuptial agreement 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, the fact that the complainant is Kenyan, and that the properties she is claiming are in Kenya, does not by itself confer to the court jurisdiction and neither does it entitle her to 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.

A prenuptial agreement, commonly referred to as a “prenup”, is an agreement entered into by couples before marriage stating how the matrimonial as sets would be divided if the marriage fails.

Section 6(3) of the Matrimonial Property Act, 2013, recognises agreements executed by couples intending to enter into marriage. Subsection 4 of the Act gives the court powers to set aside the agreement if it determines that it was influenced by fraud, coercion or is manifestly unjust.

Process of buying land in Kenya

DNK (the woman) had moved to court seeking to have the agreement quashed saying she signed the document without properly understanding its content.
“GS (the man) 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 said the agreement was one sided, unfair and manifestly unjust.

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