Judge clears auction of tycoon’s property to pay ex-wife’s upkeep arrears

The property situated in South C Nairobi valued at Sh28 million was sold to settle a longstanding spousal maintenance debt of an unspecified amount owed to his former wife Mradula Suresh Kantaria.

The tenant with the backing of Mr Kantaria had argued that she had preemptive rights on the house and should have been given the first right of purchase.

The auction was pursuant to orders issued on November 5, 2024, by the High Court Deputy Registrar in the enforcement of a Court of Appeal judgment, which required the businessman to pay his former wife and daughter Sh350,000 monthly for maintenance and upkeep.

The initial compensation for spousal alimony was Sh100 million as ordered in 2005 by the High Court following the annulment of their marriage on February 18, 1999.

While supporting the tenant’s application for reversal of the auction, Mr Kantaria argued that the sale was illegal. He explained that the exercise was based on disputed orders that were subject to an active appeal, where he is pleading that the sale of his assets amount to reducing him to a pauper.

The other assets targeted by Ms Suresh for auction to recover the spousal maintenance arrears are situated at United Nations Crescent Gigiri and South Nairobi.

However, Justice Ochieng ruled that the tenant failed to explain why she did not bid for the purchase of the house during the public auction.

“The plaintiff contends that she had a lease but I note there were already orders issued by courts of competent jurisdiction for its auction, which took place and the suit property passed to a third party. I note the suit property was advertised twice for sale in the Daily Nation Newspaper but the Plaintiff has not explained why she did not purchase it, during the said auction,” said the judge.

She added though the tenant had a valid lease, the same could not override the court order and the available remedy to a person aggrieved by auction was to seek damages.

“Auctioning of property is governed by the auctioneers rules and once the property is sold by public auction, the only remedy an owner or a person who has an interest in it has, is to sue for damages if the auction was not properly undertaken,” stated Justice Ochieng.

She observed that the tenant failed to present any special circumstances or establish a strong case against the sale to warrant granting of the orders sought.

“It is my considered view that since the suit property was to be sold pursuant to orders issued in the High Court divorce case of 1997, on November 5, 2024, in the execution of a Court of Appeal judgment, this overrides the terms of the purported lease, which the Plaintiff seeks to rely on”.

Ms Suresh and Mr Kantaria were married on March 16, 1974. The marriage was dissolved on February 18, 1999, after Ms Suresh successfully filed for a divorce.

The award of Sh350,000 was to be effected on May 5, 2025, and paid on every fifth day of the subsequent month until she dies or remarries. In the present case, she opposed the tenant’s application, urging that the lease was free to negotiate another tenancy agreement with the new owner of the property.

In the Court of Appeal, case Mr Kantaria wanted the High Court awards, which included a 50 percent share of three prime properties in Nairobi and Sh100 million to Ms Suresh, quashed.

Justices Roselyn Nambuye (retired), Daniel Musinga, and Agnes Murgor noted that the High Court erred in law by ordering that property owned by the businessman’s company Tarameera Limited be transferred to Ms Suresh for her benefit and that of their children.

“The court equally erred in ordering the appellant to pay Ms Suresh Sh80 million on account of her shares or interest in Jaribu Credit Trading Company Limited. The court had no jurisdiction to make such orders. Further, Tarameera and Jaribu Credit were condemned unheard when the court made adverse findings against them. They were not parties to the suit,” the judges noted.

On Ms Suresh’s demand for a 50 percent ownership of three properties registered in Mr Kantaria’s name, the judges said they were unable to find that she was entitled to 50 percent ownership.

“In our view, her indirect financial contribution towards the acquisition of the three properties can best be assessed at 25 percent and not 50 percent as held by the trial judge,” said the judges.

→ [email protected]