Please wait, loading...
A direct transfer of property attracts payment of stamp duty at market value. Gifts made by an owner to another party during the lifetime of the owner are generally not exempt from stamp duty payment. There are, however, some exceptions to the general rule.
Ultimately, it is land and labor that produce wealth.[3] Land, considered as such, cannot have duties since it is an inanimate object. Therefore, naturally occurring resources (e.g., trees, water, etc.) should be freely available for use or consumption. As Adam Smith recognized, it is the institution of private property or, in more expressive terms, private sovereignty over property[4] that puts a price tag on these resources – and unjustly so.[5]
Taxation is a compulsory contribution to state revenue imposed by a government. One of the chief problems with contemporary taxation is the word “state” in that definition. From this point on, I will write it as “State”, beginning with a capital letter, for clarity.
Few people, if any, doubt that housing is a problem worth resolving. The Center for Affordable Housing Finance Africa (CAHF) estimates that Kenya faces a housing deficit of 80%. While the demand for housing is estimated at 250,000 units per year, only 50,000 new units are delivered annually. The National Housing Corporation estimates that Kenya faces a housing deficit of 2 million units and counting.
If the matrimonial property belongs entirely to each spouse, it is simply incorrect to speak of them owning the property in “proportions” as the Supreme Court did. The proportion proper to each spouse is the whole. And while it is true that some people may actively mistreat, manipulate, or exploit their spouses, these problems are properly dealt with according to the logic of self-gift that animates the union of marriage. What a man has given does not belong to him anymore.
Here, it would be appropriate to consider what property is and its place in a marriage. In the modern context, we commonly think of property as a thing that we have the right to use without restraint (at least, in principle), and from which we have the right to exclude others.[1] Things that we own are surrounded, figuratively speaking (or even literally!),[2] by a fence. We have a right to use whatever is on our side of the fence however we want, provided that we don’t interfere with other people’s capacity to do the same. Our property is our own, and we decide what to do with it. Like our own purpose, the purpose of our property is up to us to decide.
Conforming the definition of “spouse” in the Law of Succession Act to that in the Marriage Act. This would mean that, even for purposes of succession, men in monogamous marriages would have no legal capacity to marry other women under customary law, and their wives in their monogamous marriages would need not fear being automatically disinherited of matrimonial property. This is especially important given that, as of 2019, there are six times more widows than widowers in Kenya.[1] Even biologically, men just have a lower life expectancy.
Profit maximization as a motive bodes ill for many. Employees’ wages, product quality, fair prices, and just taxes – all of these are casualties incurred to an extent that parallels the leeway on which landholders are granted the right to absolute use and abuse of their property. The use of the corporation as a vehicle for the avoidance of taxes is certainly not without precedent.
"..the burden of proof in any case…lies with the party who desires any court to give judgment as to any legal right or liability; (it) is for that party to show the facts which he alleges his case depends upon exist... A 14 year legal dispute culminated in a January 2020 decision of the Court of Appeal at Nairobi. This was in Board of Governors St. Mary’s School v Boli Festus Andrew Sio [2020] eKLR where the firm of Nyiha, Mukoma & Company Advocates represented the Appellant.
©Nyihamukoma & Co Advocates 2023. All rights reserved.
©Nyihamukoma & Co Advocates 2023. All rights reserved.