Court declares wife must divorce first before recovering Sh108K loan from husband

A woman who loaned her husband over Sh100,000 to set up a wines and spirits business has been told she must first dissolve her marriage before she can recover the money.

In a ruling that stirred debate on money, love and matrimonial property, Magistrate Temba Sitati said the court could not compel repayment of the loan while the couple remained legally married.

"The court declines to order release of this money (which is property) for the legal roadblock that their marriage is still pending," Sitati ruled.

The woman, identified in court as CML, told the court she gave her husband, BSK, a loan of Sh158,000 in 2023 based on an oral agreement. She said the money was meant to help him start a wines and spirits business, and that he refunded Sh50,000 before defaulting on the remaining Sh108,670.

Fed up with empty promises, the civil servant backed her claims with an M-Pesa statement and a formal demand letter before taking the matter to court.

Her brother, BML, testified in support of her claim, saying he had witnessed the couple discuss the loan. He, however, admitted he did not see the actual handover of the money.

But BSK countered the suit with a wild claim that his wife actually owed him Sh500,000. Despite the bold statement, he only presented evidence of Sh4,400 in mobile money transfers, which he dismissed as regular spousal remittances.

BSK argued that the loan, if any, was part of their matrimonial property and could not be enforced through a court order while they were still husband and wife. He also dismissed the oral agreement, insisting it was legally unenforceable.

Magistrate Sitati ruled that the funds were clearly a personal loan from CML to BSK, citing his partial repayment as evidence. However, the judge held that the court could not grant her request until the marriage was officially dissolved.

"The prayer for recovery of Sh108,670 is held in abeyance until the marriage is dissolved," he ruled.

BSK's counter-claim for Sh500,000 was dismissed due to lack of evidence.

For now, CML must wait-heartbroken and out of pocket-until a divorce decree is granted before she can recover her money.