East Africa: The rich also cry

By Nyakundi Nyamboga

A freshly Divorced woman returned five top-of-the-range vehicles, posh house and a cheque all worth Sh133.8 million to her estranged husband in one day.

But the man is not through with reclaiming assets he claims he bought her during their four-year marriage and wants back luxury motorboats and cash to the tune of Sh183 million.

And a Mombasa court is preparing to rule on the unprecedented property dispute in which 34-year-old billionaire Mohammed Bakhresa is recalling multi-million “gifts’’ he gave his divorced wife.

The case is a groundbreaker on Kenyan soil as it involves a man claiming property from his former wife. The case is based on Indian law where men are known to reclaim assets from their estranged or divorced wives. The reverse holds true in many Kenyan court corridors.

Bakhresa, a Tanzanian national with vast business interests in Kenya, Uganda, Tanzania and Malawi, ended his marriage to Kenya’s 32-year-old Nasra Ahmed in June.

In three days he was at a lawyer’s office taking back log books for five vehicles he bought her in her name, as well as a bankers cheque for Sh71 million.

The total worth of the “gifts’’ mutually handed back by the lady as part of the divorce agreement that day stood at Sh133.8 million.

But Bakhresa now wants Nasra, a former typist he turned into a billionaire, to hand him back real estate properties, luxury motorboats and multi-million dollar accounts worth Sh183 million.

The court file, which includes stacks of sheets of withdrawal and deposit slips of dizzying amounts in her name, depicts the jet set life led by Arab oil sheikhs and Hollywood movie stars.

The two boats in Nasra’s name, and still in her possession, and which Bakhresa claims he bought for Sh3.5m, were for the couple’s exclusive rendezvous on the exotic Islands of Lamu.

Nasra had billions of shillings at her disposal. All she needed to do was walk into a bank and requisition any amount from the family accounts.

She was at liberty to invest the money withdrawn from these accounts and that received from her lover.

In less than five years, she had acquired in her name 13 fully developed plots in the city of Mombasa, two luxurious boats, five state-of- the-art cars, including a custom made Mercedes Benz.

She even bought a palatial home in the name of her brother. She was later to transfer the property to herself.

To crown it all, she opened seven bank accounts, including dollar accounts, one of which was a joint account with the husband.

While her marriage lasted, sparkling outside her house was a 5.5 litre Mercedes Benz. It was a rare model, which her former husband now claims cost him Sh17 m. The boats at her disposal were named – MV Dar and MV Casaurina.

Incidentally, Bakhresa was not the only fabulously rich man looking up to the courts for a favourable divorce settlement decision this week.

In Nairobi, millionaire financier Suresh Kantaria was back in court for the ruling in a case in which he is challenging his former wife’s Sh100 million-alimony award.

The Court of Appeal suspended execution of the award until the appeal was concluded. But meanwhile, the court ruled, Kantaria will pay Mradulla and her daughter, Meera, Sh300,000 monthly maintenance.

Last year, the Kenyan court ordered Nairobi lawyer David Mereka to split his vast matrimonial property with his divorced wife.

Bakhresa, the managing director of two multi billion companies, Uganda’s Bakhresa Grain Milling (U) Ltd – producers, and Kenya’s Bakhresa Food Products (K) Limited, personally ended his marriage to Nasra, a resident of Mombasa in line with Islamic traditions. His was a terse statement which must have sounded like a thunderbolt to Nasra: “I Mohammed Said Bakhresa having realised that our marriage has broken down irretrievably do hereby divorce you Nasra Abdulwahab Ahmed and in accordance to Islamic Sheria I hereby proclaim divorce.”

The letter proclaiming the Islamic talak is dated June 19, 2006.

The properties Bakhresa is claiming from Nasra include 12 prime apartments, some straddling the sandy beaches of the Kenyan Indian Ocean coastline. He was able to reclaim the princely Nyali Estate house pictured on the cover of this paper, which was their love nest as their romance blossomed.

That was long after, in the wife’s own description, he plucked her from her typist’s desk job for the four-year thrill of the world of billionaires.

As the curtains rolled on the love relationship, which bore no child, she had a personal account worth Sh16 million, which she said, were savings from her husbands “maintenance funds”.

Nasra was married to Bakhresa on January 9, 2002 at a private Islamic ceremony in Mombasa. The billionaire had paid Sh30,000 as dowry. The other vehicles in her name and disposal were: Mitsubishi Lancer, Toyota Land Cruiser, Nissan double cabin and Toyota Rav4.

Nasra argues that whatever property is in her name today was either given to her as a gift or she acquired them from the money she saved from the millions of shillings her husband provided for her maintenance.

Others were acquired through her direct and indirect contribution to the running of the family businesses.

Therefore the ex-husband has no right to them.

She says the properties were acquired for her sole benefit because her then billionaire husband had allegedly on several occasions made it clear that he was not interested in properties which earned meagre amounts of money.

However, her billionaire ex-husband does not think so. He filed a suit in August seeking to recover from her all properties she acquired during the subsistence of the marriage.

These include the developed plots, and millions of shillings held in eight accounts at various banks.

He accuses his ex-wife of deceit and fraudulent misrepresentation that allegedly led him to sign an agreement on June 21 where he was to get away with only Sh71million, a house and five cars out of their multi-billion empire.

He wants to be compensated for the loss of rental income accruing from the 13 housing properties, income accruing from the operation of the two boats, proceeds from the various bank accounts and loss of use of five cars.

The suit is a test case for the future of good fortune for married women in Kenya. Bakhresa currently enjoys a court order temporarily freezing all Nasra’s bank accounts.

He also got an order to appoint an estate agent to collect all rents from her properties. She was ordered not to transfer any of the properties in her name and not to collect rent from them.

Bakhresa was also given an order authorising him to go to the banks where she held accounts and collect statements of all her transactions and to inspect her operation of the accounts.

Nasra complained to the Mombasa High Court that all these orders had been issued ex-parte without her side of the story being heard and even before she had been served with the court papers.

Mombasa High Court Judge David Maraga would later in the month deliver a ruling on whether a married woman has to give back to her husband “gifts” he bought for her during the marriage.

The ruling, to be delivered on October 31, will decide whether a man, upon divorcing his wife, can recall gifts that he “voluntarily” bought for her during the happy times of the marital union.

Relying on an old Indian law, the Benami Law, the billionaire claims that all properties bought by his wife during their marriage belong to him even though the same were registered in her name. He claims that since the money used to buy the property came from him, the fact that the same were bought by the wife in her name and with his consent is inconsequential and the court must force her to transfer the same to him.

Benami purchases “are purchases in false name of another person, who does not pay the consideration but merely lends his name, while the real title vests in another person who actually purchased the property and he is the beneficial owner.”

It has been the practise in India for men to recover property from their wives and children on the basis that the money used to purchase the property had come from them. This practise had been in use since the 1800s until 1988 when the Indian Parliament outlawed all such transactions by passing The Benami Transactions Prohibition Act. Today, a man in India is not allowed to recover such property from the wife. Indeed, it is today illegal, punishable by a jail term of up to three years, for a man to enter into such a transaction.

Bakhresa however told Justice Maraga that Benami law still applied to Kenya. He relied on two cases, one decided in 1954 and another in 1966 before the passing of Kenya’s Judicature Act. In the 1966 case, an English judge of the High Court of Kenya held that the Benami law was to be applied to Kenyan Muslims in the same way it was applied to Hindus in India. Nasra’s lawyer countered the two cases by referring to a March 2006 decision, Justice of Appeal Hon. Erastus Githinji, in Yogendra Patel vs Pascale Bakshi where he held that the Benami law did not apply to Kenya.

In her defence, Nasra told the High Court judge that out of the money the husband had been sending her for her upkeep and leisure, she had saved over Ksh16 million. He had send her other monies as gifts whenever he was out of the country on business and other monies she had earned from her own initiative. It is with these monies that she had acquired the properties that the man now wanted the court to take away from her. She told the court that although the properties in question were worth several hundred million shillings, the man had been able to give evidence for only kSh49 million as the money he had sent to her, which she had already given back to him.

She told the court that she transferred all the cars and the house as he had demanded and also gave to him a banker’s cheque for the Sh71 Million.