[2022] KEHC 15086 (KLR)

AJK v CHR (Civil Suit 5 of 2019) [2022] KEHC 15086 (KLR) (19 July 2022) (Judgment)

Neutral citation: [2022] KEHC 15086 (KLR)

Republic of Kenya

In the High Court at Kajiado

Civil Suit 5 of 2019

SN Mutuku, J

July 19, 2022

IN THE MATTER OF THE MATRIMONIAL PROPERTY ACT,2013 AND IN THE MATTER OF THE LAND REGISTRATION ACT

Between

AJK

Applicant

and

CHR

Respondent

Judgment

Introduction 1. By an Originating Summons (OS) dated 28th February, 2019, AJK (the Applicant) has come to this court invoking Article 45(3) of the Constitution, Section 1A & 1B of the Civil procedure Act, Sections 2, 6, 7, 9, 12(3), (4), and 5, 17 and 18 of the Matrimonial Property Act, Section 93 of the Land Registration Act, 2012 and all other enabling provisions of the law to seek the following orders:a.A declaration that all the property known as Kjd/kaputei-north/xxxx presently registered in the name of the Respondent, is a property acquired by effort and contribution of both parties.b.A declaration that all the property known as Kjd/kaputei-north/xxxx is the matrimonial property belonging to both parties, both bearing equal rights over the property and is non-transferable and/or leasable and/or mortgageable and/or can be let and/or one-party grant occupancy to the non-owner without the consent of both parties.c.An order that the Respondent be restricted and/or restrained from evicting, threatening and/or barring the Applicant from access, living and/or carrying on any activity within the matrimonial property.d.The Honourable court be at liberty to make any further orders that it shall deem fit to grant in the interest of justice.e.The costs of the suit be borne by the Respondent.

Applicant’s case 2. The grounds in support of the OS are found on the face of it and in the Supporting Affidavit dated 28th February, 2018 sworn by the Applicant. It is her case that she and the Respondent have been married since 2007; that they jointly contributed towards the purchase of land in Kitengela known as Kjd/kaputei-north/xxxx and built their family home; that they lived in that home until 2013 when the Respondent was transferred to Kisumu for work and that she later moved to Eldoret in 2016 to run a family business.

3. It is her case that during that time that their union hit the rocks and the Respondent took another wife and became violent towards her; that he threatened her and demanded that she vacates their matrimonial home; that she reported the abusive behaviour at Kitengela Police Station under OB No. OB70/23/2/19 and that the Respondent has denied her access to their matrimonial home.

4. The Applicant filed a further affidavit dated 18th July, 2019 in which she deposed that the Respondent and her conducted their customary marriage in accordance with the Tugen customary law at her parents’ home in [particulars witheld] village, Eldama Ravine in Baringo County on or about 12th April, 2008; that they attended functions as husband and wife and that the Respondent also acknowledged the Applicant as his wife in his research project in fulfilment of his Master’s Degree and in his Declaration of Income, Assets and Liabilities Form for the period of 1st November, 2013 to 31st October, 2015.

5. It is her contention that she contributed to the purchase of their properties from her mtumba business. She stated that when the Respondent was transferred to Kisumu she stayed behind and continued with the construction of their hone while doing gardening of the compound and urban farming of chicken and quails.

6. She further averred that they started a family business where they were co-owners. She attached documents in support as shown in annexure AJK-8. She has also annexed WhatsApp chats between her and the Respondent to show that the Respondent acknowledged the property as their matrimonial home.

Respondent’s Case 7. The OS is opposed by the Respondent. He filed his Replying Affidavit dated 2nd April, 2019 in which he dposed that he is the sole proprietor of the properties known as Kjd/kaputei-north/xxxx and Kjd/kaputei-north/xxxx (suit properties); that he has never been married to the Applicant and the suit properties are therefore not matrimonial property; that he bought the suit properties sometime in 2008 and had the same duly transferred in his name being the sole buyer.

8. He deposed that the two parcels were charged as security for a first legal charge of Kshs. 2,000,000 in the year 2009 through Civil Servants Housing Scheme; that the same was transferred to KCB Bank in the year 2010 and that he has been servicing the loan to date. He contends that the Applicant has never contributed towards the servicing of the loan, or directly or indirectly towards acquisition and development of the suit property; that when he moved to Kisumu, he hired a caretaker to ensure safety of his property in his absence and that the Applicant is an opportunist trying to reap where she did not sow.

Evidence 9. The matter proceeded through oral evidence. The Applicant testified as the first witness. She reiterated the contents of her affidavits and adopted the originating summons, supporting affidavit, further affidavit and the annexures thereto as her evidence and exhibits in support of her case.

10. In cross-examination she stated that the customary marriage ceremony was conducted in April 2008 and dowry was paid to her parents. She stated that she contributed cash amounting to Kshs. 270,000/- toward acquisition of the properties. She stated that they agreed with the Respondent that the property be registered in his name to enable him get a loan the development of the property.

11. In re-examination she stated that other than the stated monetary contribution she managed the house; that she did not have receipts because they are in the house and she did not take anything with her when the Respondent chased her out of their matrimonial home.

12. She called TKK as her second witness. He is her father. He testified that he was the one who brought a fundi to construct the Applicant’s and the Respondent’s house. He was cross-examination on the issue of the Applicant’s and the Respondent’s customary marriage to which he stated that the Applicant and the Respondent conducted a Tugen customary marriage ceremony in 2008 in the presence of elders; that he did not know whether the Applicant contributed to the purchase of the property.

13. The Respondent gave his testimony and relied on his Replying Affidavit and adopted the same as his evidence. It is his evidence that they were engaged but never got married; that they attended an engagement ceremony in 2008, however no dowry was not paid; that between 2008 and 2015 they were cohabiting with the Applicant.

14. It is his evidence that he sold his car and added his savings to purchase the suit properties and that they own the family business together and shared benefits. He further stated that he purchased properties in Eldoret and registered them in the Applicant’s name. He admitted that they lived as husband and wife but they parted ways in 2015; that the Applicant moved out of their matrimonial home and that he has another family that live in that house.

Submissions 15. After the conclusions of their respective cases, parties filed their submissions. The Applicant filed her submissions dated 25th October 2021. She abandoned Prayer 1 of the OS arguing that the present suit does not seek determination of ownership and or division of the property but declaration of interests on the suit property and therefore this court lacks jurisdiction since the marriage has not been dissolved

16. The Applicant raised three issues for determination, namely:i.Whether there exists marriage between the Applicant and the Respondent.ii.Whether the property known as Kjd/kaputiei-north/xxxx is matrimonial property.iii.Whether the prayers sought in the OS can issue.

17. She submitted that there was customary marriage in accordance with the Tugen culture a fact that remains uncontroverted by the Respondent; that during the marriage ceremony dowry was negotiated and some money was exchanged as a symbol of her being married off to the Respondent. In support of her submissions that she was married under customary law, she cited Section 43 of the Marriage Act 2014 and Hellen Omwoyo v David Ouma Gor [2017] eKLR.

18. She submitted long cohabitation is sufficient to warrant presumption of marriage. She cited Hortensiah Wanjiku Yawe v Public Trustee CA Civil Appeal No. 13 of 1976[UR] on the issue of long cohabitation and argued that the Respondent has failed to avail cogent evidence to the contrary and therefore the balance of probabilities that she cohabited with the Respondent is in her favour.

19. She cited Sections 2 and 6(1) of the Matrimonial Property Act to support her submissions on matrimonial property and argued that it is not in dispute that when she met the Respondent, she was working and she stopped working to move in with the Respondent as his wife; that the fact that they used to live together as husband and wife, they utilized the home as a family home although the property is registered solely in the Respondent’s name. She cited Section 14(a) of the Matrimonial Property Act to support her claim that where property is held in the name of one spouse there is rebuttable presumption that the same is held in trust for the other spouse.

20. The Applicant also relied on Article 45(3) of the Constitution that parties to a marriage are entitled to equal rights at the time of marriage, during the subsistence of the marriage and at the dissolution of marriage. She argued that she has adduced evidence to show that the property was acquired and developed during coverture and that the parties occupied and utilized the said premises for decades as their family home.

21. On whether the prayers sought in the Originating Summons can issue, the Applicant argued that she has established that a marriage existed between her and the Respondent and that the suit property was their family home and therefore it is matrimonial property.

22. The Respondent’s submissions are dated 23rd November, 2021. He reiterated the contents of his pleadings and evidence in court. He raised three issues for determination, namely:i.Whether the Applicant and the Respondent were legally married as husband and wife under the Marriage Act.ii.Whether the suit properties Title No. Kajiado/kaputiei-north/xxxxand Kajiado/kaputiei-north/xxxx constitute and/or are matrimonial properties and whether the Applicant is entitled to an equal share of the property.iii.Whether the Applicant is entitled to seek division of matrimonial property where there is no divorce/annulment of the marriage.

23. He submitted that the suit properties do not form part of matrimonial properties; that Section 6(1) of the Matrimonial Property Act defines matrimonial property and that the suit properties do not form matrimonial property because they were solely acquired by the Respondent before the alleged customary marriage.

24. He submitted that the Marriage Act requires all marriages to be registered and certificate issued to that effect; that the Applicant did not produce any certificate or affidavit to that effect except some photos taken during the time the parties were friends and trying to solemnize their union; that when he took out a mortgage facility there was no spousal consent provided and that as such the property was not matrimonial.

25. The Respondent submitted further that the Applicant did not provide documentary evidence to prove her contribution and therefore her allegations that she made any contribution are baseless and that the Applicant did not contribute either directly or indirectly to the acquisition of the suit properties. He relied on P.N.N v Z.W.N[2017] eKLR where the court was of the view that marital equality recognized by the Constitution did not mean that matrimonial property should be divided equally between the parties.

26. He further argued that the law on evidence is clear that he who alleges must prove; that under Section 6 (3) of the Matrimonial Property Act, it is clear that for a party to claim division of matrimonial property, there has to be divorce. He submitted that in this case there are no divorce proceedings and no proof of the same. On that point, he relied on the case of M W v F.M.C Matrimonial Cause 3 of 2018 [2018]eKLR. He urged that this suit herein be dismissed with costs to him.

Determination 27. To my mind, the central issues requiring my determination in this OS, are:i.Whether a marriage exists between the parties herein.ii.Whether the property in issue in this OS is matrimonial property.iii.Whether the Applicant deserves the prayers she is seeking.

28. The Applicant claims that she married the Respondent through Tugen Customary Marriage and dowry was paid. From the evidence presented in court, the parties cohabited for a long time and this is admitted by both parties. The Respondent admitted in his evidence that the two cohabited from 2008 to 2015. He admitted that they lived together in their home in Kitengela until 2015 when their relationship ended. He admitted that he married another wife after the Applicant moved from their bedroom. I have noted that the Respondent in his evidence referred to his “new” wife in reference to the woman he moved in with after they parted with the Applicant.

29. I have also noted that the Respondent admitted in evidence that he acknowledged the Applicant as his wife in his Masters Degree Thesis and in the Declaration of Assets and Liabilities Forms for the years 2013 to 2017. Further the attached copies of WhatsApp chats between the two point to a couple that had lived together and the Respondent as a man that still cared for the Applicant despite having married another wife.

30. I have also considered Phylis Njoki Karanja & 2 others v Rosemary Mueni Karanja & another [2009] eKLR, cited by the Applicant, the Court of Appeal had this to say about cohabitation and presumption of marriage:“Before a presumption of marriage can arise, a party needs to establish long cohabitation and acts of general repute; that long cohabitation is not mere friendship or that the woman is not a mere concubine but that the long cohabitation has crystallized into a marriage and it is safe to presume the existence of a marriage. We are of the view that since the presumption is in the nature of an assumption it is not imperative that certain customary rites be performed: see Gachege v. Wanjugu [1991] KLR 147. ”

31. In my view, the Applicant and the Respondent cohabited as husband and wife for a considerable time. The Applicant’s father confirmed that the two lived as man and wife and that customary rites were performed. The two held themselves out as husband and wife. I have stated that the Respondent admitted the same in his evidence although he continues to contradict himself in stating that the Applicant was just a friend.

32. After full consideration of all the materials placed before me, the evidence in court, the cited authorities, I find as a fact that the Applicant and the Respondent lived as man and wife; that they so held themselves out to society and their family and that their long cohabitation leads to a presumption of marriage between the two. The court in In re Estate of George Owino Onyango (Deceased) [2017] eKLR, stated as follows in respect of presumption of marriage by cohabitation:“Even if a customary marriage is not established, the court may well find that the parties cohabited for a period of time and conducted themselves in such a manner that a marriage could be presumed. In Hortensiah Wanjiku Yawe v Public Trustee CA Civil Appeal No.13 of 1976 (UR) the Court of Appeal for East Africa held that a long period of cohabitation as man and wife may give rise to a presumption of marriage in favour of the party asserting it. Mustafa JA., held as follows:I find nothing in the Restatement of African Law to suggest that Kikuyu customary law is opposed to the concept of presumption of marriage arising out of long cohabitation. In my view, all marriages in whatever form they take, civil or customary or religious, are basically similar, with the usual attributes and incidents attaching to them. I do not see why the concept of presumption of marriage in favour of the appellant in this case, should not apply just because she was married according to Kikuyu customary law. It is a concept that is beneficial to the institution of marriage to the status of the parties involved and to the issue of their union, and in my view, is applicable to all marriages, however celebrated. The evidence concerning cohabitation was adduced at the hearing and formed part of the issue concerning the fact of marriage ...”

33. In the same vein, the same can be said to apply for Tugen customary law. This brings me to the conclusion that there existed a marriage between the Applicant and the Respondent in this case in all times relevant to this case.

34. Section 6(1) of the Matrimonial Property Act defines matrimonial property as follows:Meaning of matrimonial property(1)For the purposes of this Act, matrimonial property means—(a)the matrimonial home or homes;(b)household goods and effects in the matrimonial home or homes; or (c) any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.

35. From the facts of this case the parties herein met in 2005 and moved in together after 3 months. They lived in Umoja inner core and later looked for a place to settle down. That in 2008 they acquired the suit property and started constructing a house. From the evidence adduced in court and from the testimony of the Applicant’s father he was the one who assisted them to find a fundi to construct their house. The property in question was therefore acquired during the subsistence of the marriage between the parties herein. There is also evidence that the suit property was acquired for purposes of building a family home. There is no doubt therefore that the property is matrimonial property.

36. While the Applicant has to move to the right forum to determine the percentage of the contribution she made towards the acquisition of the property and what share should go to her if ever their marriage were to be dissolved, for the purposes of this OS, I am satisfied that the suit property is matrimonial property by dint of the definitions contained in the Matrimonial Property Act and the evidence adduced in court.

37. I note that the Applicant is seeking to abandon Prayer 1 of her OS during submissions. This is not the right thing to do. To my mind, it amounts to amending the pleadings through submissions which is contrary to what procedure requires. It amounts to ambush on the other party. That said, it clear to me that this court does not have jurisdiction to determine contribution of the parties towards acquisition of the matrimonial property and the shares to each party. Parties cannot litigate that issue as long as their marriage has not been dissolved.

38. Section 17 (1) of the Matrimonial Property Act, however, empowers this court to make declaratory orders over property rights. The section provides that “A person may apply to a court for a declaration of rights to any property that is contested between that person and a spouse or a former spouse of that person.”

39. The law protects a spouse from eviction from matrimonial home during the subsistence of the marriage except by order of the court. Section 12(3) of the Matrimonial Property Act provides that: A spouse shall not, during the subsistence of the marriage, be evicted from the matrimonial home by or at the instance of the other spouse except by order of a court.

40. In conclusion, I am persuaded, after considering the pleadings, evidenced, exhibits attached and arguments by both parties, that the Applicant has established her case to the required standard. I allow her OS dated 28th February 2019 and issue declaratory orders that:1. That all that property known as Kajiado/kaputiei-north/xxxx is matrimonial property belonging to both the Applicant and the Respondent and cannot be transferred, leased, mortgaged, let out without consent of both parties.2. That the Respondent is hereby restricted and restrained from evicting, threatening and or barring the Applicant from accessing, living and/or carrying on any activity within the matrimonial property.3. That this being a family dispute, I order that each party bears own costs.

41. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 19TH JULY 2022. S. N. MUTUKUJUDGE