A Danish National Simon Enna Wesche has suffered a major setback after his estranged Kenyan wife obtained orders stopping him from evicting her from Ksh12 million Malindi beach house.
Vivien Nasimiyu Wamalwa, a businesswoman, obtained the orders halting the eviction by ex-husband Wesche from their matrimonial house famously known as Harbour cottage pending the hearing of a lawsuit challenging the ownership of the multi-million shilling Malindi beach house.
"A temporary injunction is hereby issued restraining the respondent ( Wesche) himself, officials, agents, employees and or assigns or whoever is acting on his behalf from evicting and or in any way interfering with the applicant's (Wamalwa) peaceful use and access of the matrimonial home know as Harbour cottage no. 30 registered as Cr No. 35919 pending the hearing and determination of the application," Senior Principal Magistrate James Ongondo ordered.
The court also issued orders restraining the Danish investor Wesche from causing any damage, alienation and or interfering with or altering the beneficial interest over shares and assets in Harber Key Cottage Management Limited pending the hearing and determination of the application.
Wamalwa sought the orders on grounds that she is aggrieved by the actions of his estranged husband to kick her out of the house arguing that the same is malicious as they are co-owners of the subject property.
Through lawyer John Swaka, the business lady claims that she met Wesche in 2019 in Denmark where she was working at the time. They tied the knot in June 2020 in Odense Kommune, Denmark but due to Wamalwa's difficulty obtaining a residence permit, they decided to relocate to Kenya.
"The union between the parties was however not blessed with any issues. Wamalwa had a daughter and Wesche a son from their previous relationships," Swaka states in the court papers.
Initially, they lived in the Kilimani area of Nairobi county until May 2021 as Wamalwa had been employed with Telehealth Company in Kenya as a growth manager after they relocated back into the country while Wesche retained his employment with his Danish employer working remotely.
The lawyer adds that during their holiday in Malindi, they found a beach cottage for sale. It was in a prime area and they decided to purchase it being their first investment in Kenya.
"The Parties approached one Nesti Maria Raffaella the registered proprietor of a leasehold interest over the subject land and expressed their interest in purchasing the same. They purchased a leasehold interest in the property( Harbour Cottage No 30 registered as CR No. 35919 and known as Land portion No. 9699) for a consideration of Sh 7 million vide a sale agreement drawn by the Advocate firm of Muli & Ole Kina," Swaka says.
"The total agreed purchase price was Ksh10.5 million which price was apportioned: Ksh7 million for the cottage/immovable property and Ksh3.5 million for the furniture, furnishing and fittings in the cottage as per the sale agreement," she stated.
It is alleged that Wamalwa urged her ex-husband to include her name in the sale agreement claiming that he was not allowed to solely own land in Kenya as a foreigner.
Wamalwa's Lawyer states that the duo however equally jointly purchased shares in Harbour Key Cottage Management Limited from Nesti Maria Raffaella and upon purchase, they moved into the property together.
"I have contributed to and paid for part of the cottage deposit, renovations, all home furnishings, day-to-day running and shopping for the house in my role as a wife including those in Nairobi for the shared apartment," Wamalwa states in her affidavit filed in court.
In her court papers, Wamalwa further claims that she had been physically and verbally abused by Wesche on several occasions both in Denmark and within the country leaving her with severe injuries and bruises on her body.
"The bouts of violence and abuse forced Wamalwa to seek psychological assistance from a therapist following a marital spat which culminated in the Danish national attempting to kill her through strangulation. The Parties herein separated for a brief period within the month of November 2022 and she moved back into their home in Nairobi," Lawyer Swaka says.
The court heard that on February 6, 2023, Wesche left the country together with his father who had been in the country for a period of three months and immediately Wamalwa informed him that she would be moving back into their home in Malindi.
"To the applicant's utter chagrin and dismay upon arrival on February 7, 2023, she was met with boxes and bags of her personal items at the gate by one Kenneth Maina who had been hired by Wesche to bar Wamalwa's ingress and access to the premises," Swaka told the court.
The lawyer says that his client reported the incident to Malindi Police Station and attempts to access the house has been futile to date.
"The actions by Wasche have excluded Wamalwa from use and access to her matrimonial home despite having equally contributed to the purchase of the property. The Applicant is apprehensive that unless restrained by the court foreigner shall remain a persistent nuisance and a threat to her safety and well-being and her proprietary interests," Swaka states.
He further adds that the conduct by the Danish national threatens his client's quality of life and her proprietary interests over the land as enshrined under the provisions of Article 40 of the Constitution.
The case will be mentioned on April 4, 2023.