[2022] KEHC 15919 (KLR)

AKN v JKK (Matrimonial Cause 9 of 2019) [2022] KEHC 15919 (KLR) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15919 (KLR)

Republic of Kenya

In the High Court at Mombasa

Matrimonial Cause 9 of 2019

JN Onyiego, J

November 11, 2022

IN THE MATTER OF: SECTION 7, 12, & 17 OF THE MATRIMONIAL PROPERTY ACT NO.49 OF 2013

AND

IN THE MATTER OF: AN APPLICATION FOR DIVISION OF MATRIMONIAL PROPERTY

Between

AKN

Plaintiff

and

JKK

Respondent

Judgment

1. By an Originating Summons dated November 1, 2019, the plaintiff herein moved this court seeking orders that;a.A declaration do issue that all that unregistered parcel of land measuring 40ft by 100ft situated at Bububu,Likoni(Kona Mbaya area) on which is built a permanent residential house comprising 3 bedrooms, sitting room, kitchen and toilets is a matrimonial property and be shared equally by the parties herein or in the alternative it be valued and the plaintiff be compensated accordingly for her shareb.That all that unregistered parcels of land measuring 40ft by 100ft situated at Bububu, Likoni(Kona Mbaya area ) on which is built a permanent structure comprising of a hall used as a church is Matrimonial property and be shared equally by parties herein or in the alternative it be valued and the plaintiff be compensated accordingly for her share.

2. The application is based on grounds that the subject properties were acquired and developed during coverture. In support of the application, the applicant swore an affidavit on November 1, 2019 stating that she got married to the defendant on July 16, 1995. That during the subsistence of their marriage, she was engaged in various businesses among them selling clothes, rice and fruits. That at some point she was engaged in casual jobs and later as a sales lady in a shop that was selling clothes. She averred that the defendant was working as a navy officer but retired the year 2014.

3. She further stated that the year 2009, she started a car spare parts shop as well as a hotel business at Likoni. That the year 2010, the defendant bought a plot being unregistered land measuring 40ft by 100ft located at Bububu Likoni Kona Mbaya at Kshs 100,000. She claimed that out of Kshs 100,000, she contributed Kshs 20, 000. As proof of the said sale transaction, she attached a sale agreement dated 30th May 2010 marked as annexure ANK-2.

4. She further averred that they constructed a three bedroomed house on the said plot to serve as their matrimonial home. It was her case that she made substantial financial contribution towards the development of the matrimonial home in terms of paying construction works, buying blocks, paints etc. She also deposed that she took loans jointly with the defendant but single handedly repaid the same using funds realized from her businesses. She went further to state that sometime in March 2012, they dug a bore hole and installed electricity within their matrimonial home using funds from a loan of Kshs 225,000 which they jointly took from co-op bank. To prove the said claim, a letter of offer was attached and marked as annexture ANK—4.

5. She went further to depose that in February 2014, they again took a loan of Kshs 300,000 which they utilized to improve on their matrimonial home by fixing tiles, metallic gate, painting and perimeter wall. Also, a letter of the loan was attached as proof and marked as AKN-5.

6. That the year 2011, they again bought another unregistered parcel of land located at Bububu measuring 40ft by 100ft worth 120,000 from one Suresh. She averred that they raised Kshs 100,000 out of a loan facility while she topped up the balance of Kshs 20,000. That since the defendant had expressed interest to be a preacher after retirement, they constructed a church hall on the said plot. She claimed that they later secured a loan of Kshs 150,000 to buy timber for roofing the church house in addition to funds raised by church members through harambees.

7. It was further averred that before the defendant could receive his pension, she supported the defendant’s church ministry by buying music instruments and also funding church activities. She stated that in order to enhance her mobility, she took a loan of Kshs 350,000 on June 27, 2015 to buy a car worth Kshs 200,000 and a balance of Kshs.150, 000 was given to the defendant to start chicken rearing business. To further proof that allegation, she attached a letter of offer for the loan marked AKN-8. On house hold expenditure and payment of school fees, she claimed that she was the sole financier.

8. She has claimed that sometime 2017, she was chased away from her matrimonial home by the defendant for no apparent reason thus leaving the defendant and his fiancée plus their daughter aged 17 years staying there. As a consequence, she filed for divorce and subsequently dissolved their marriage. She told the court that she was apprehensive that the defendant has made plans of selling their matrimonial home hence prayed for an injunction.

9. In response, the defendant filed a replying affidavit sworn December 2, 2019. He denied that he had any intention to sell the property. He stated that while he was working as a navy officer at Mtongwe, they opened hotel business and car spare parts shop business. That he single-handedly bought the two plots the subject of this suit without any contribution from the plaintiff. That he built their matrimonial home without any help from the plaintiff.

10. He claimed that he donated one plot to the church which raised funds through members to construct a church house. He further averred that he was the one who raised funds from his place of work to fund the plaintiff to buy a car for family use, and also to start the hotel business as well as a spare parts shop. He deponed that the hotel business, spare parts shop and family car should form part of the matrimonial property for distribution. He also stated that all the loans mentioned by the plaintiff were taken to improve on the hotel and spare parts shop business.

11. He denied that the plaintiff did make any monetary contribution to the church hence a false claim as church members raised monies through individual contributions and harambees. He denied chasing away the plaintiff from the matrimonial home and instead accused her of desertion after he caught her twice entertaining men in their matrimonial home.

12. During the hearing, the plaintiff literally adopted the averments contained in her affidavit in support of the O.S. Equally, the defendant reiterated the content of his replying affidavit. On cross examination, he stated that he gave the church his plot as a gift hence he cannot take it away. He also stated that they took loans jointly and that they repaid the same together.

13. After close of the hearing, parties agreed to file written submissions. Consequently, the plaintiff filed hers through the firm of Waithera Ngigi Advocates on April 11, 2022 while the defendant filed his through the firm of Gicuki Thiaka and company advocates on April 21, 2022.

Plaintiff’s Submissions 14. Ms Waithera basically adopted the averments contained in the detailed affidavit of the plaintiff. Counsel submitted that unlike the plaintiff who adduced documentary proof on financial contribution towards the acquisition of the subject property, the defendant did not produce any. According to learned counsel, the subject matrimonial property should be shared out equally between the two parties.

15. Concerning the property in which the church is erected, counsel submitted that the plaintiff had made both direct monetary and non-monetary contribution in terms of supervision of construction works hence urged the court to share the same equally.

Defendant’s Submission 16. Mr. Thiaka for the defendant also reiterated the averments contained in the affidavit in reply to the plaint thus urging that the plaintiff did not contribute any money towards the acquisition of the matrimonial home. With regard to the hotel business and car spare parts shop, counsel contended that the same were stocked and operated out of funds raised from joint loans acquired from cooperative bank. In respect to the plot where the church is built, it was counsel’s view that it was a gift given to the church by the defendant hence irrevocable. To support that position, counsel referred the court to the case of C.W.M V JPM (2016) e KLR where the court held that a property gifted to a party cannot comprise matrimonial property. In conclusion, counsel urged the court to share the matrimonial home, hotel business and spare part shop equally.

Determination. 17. I have considered summons herein, oral evidence by both parties and rival submissions by both counsel. Issues that emerge for confirmation are;a.Whether the properties in question constitute matrimonial propertyb.What was the extent of each party’s contributionc.Who is entitled to what share if any

18. There is no dispute that the parties herein got married on June 16, 1995 and officially divorced onJuly 16, 2021. Prior to their official divorce, they had separated the year 2017. The property listed by the plaintiff are two unregistered plots measuring 40ft by 100ft each. One of those plots is where their matrimonial home is located. This property was acquired the year 2010. The second one where a church house is located was acquired the year 2011. Clearly therefore, the two properties were acquired during coverture.

19. The question that begs an answer is whether those properties constitute matrimonial property. Section 6 of the Matrimonial Property Act defines Matrimonial property as;(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."

20. In the instant case, the plaintiff is claiming that she did contribute both directly and indirectly. She claimed that she paid Kshs 20,000 cash towards the purchase of the matrimonial home plot while the defendant contributed Kshs 80,000. That in developing the same, they took joint loans from cooperative bank. That she also supervised construction while her husband was busy serving his employer. However, the defendant claimed that he single-handedly bought the property and developed it using funds from his employer. He did not furnish proof that the money used to develop the matrimonial home was strictly sourced from his place of work. In the absence of such proof, the only logical explanation on the source of finances to develop the matrimonial home was partly raised from the joint loans and funds from businesses being managed by the plaintiff.

21. It is trite that contribution under the matrimonial property Act is not limited to direct monetary contribution but also non-monetary contribution. Under Section 2 of the Matrimonial Property Act 2013, contribution is defined as;“monetary and non-monetary contribution includes-a.Domestic work and management of the matrimonial homeb.Child carec.Companionshipd.Management of family business or property; ande.Farm work

22. Section 7 of the Act further provides that;“Subject to Section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved”.

23. Courts have consistently upheld in various decisions the position that contribution toward s acquisition of matrimonial property can be monetary or non-monetary. See Agnes Nanjala William vs Jacob Patrius Nicholas Vander C.A NO.127of 2 011 where the court recognized both monetary and non-monetary contribution in the acquisition of matrimonial property. Similar position was held in Peter Mburu Echaria vs pricscilla Njeri Echaria (2007) e KLR

24. Equally, in the case of Nderitu v Nderitu(1995-1998)1EA235, the court took into account the wife’s direct and indirect contribution to arrive at the conclusion that the same was equal.

25. As stated earlier, the only tangible and convincing explanation is that both parties did contribute towards the acquisition and development of the matrimonial home. It is immaterial that the property was bought in the defendant’s name alone. The same is deemed to be held in trust of the plaintiff. The onus of proof however is subject to a rebuttable presumption of law under Section 14 of “Matrimonial Properties Act which provides;“Where matrimonial property is acquired during marriage— (a) in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse; and(b)in the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal.”

26. Fortunately, parties in their respective submissions did agree to share their matrimonial home equally. I will therefore share the same equally at 50% to 50%.

27. I will now turn to the plot occupied by the church where the defendant ministers. The plaintiff claimed contribution in purchasing and constructing a church house to enable her husband have a place of worship. The defendant claimed that he single-handedly bought it yet failed to furnish proof. However, the plaintiff tendered somehow convincing evidence that they took a loan and bought the plot which they later gave to the church. They all agreed that the church took possession and raised funds through individual membership contribution and harambees to build a church house.

28. Can this court reverse the gift from the church to the parties herein? What will happen to the development of the property by the church? In my view, the moment they gifted the church and the church commenced development, the property ceased being matrimonial property. It will be unfair to condemn the church unheard hence I will not share that property as it belongs to the church. It does not matter whether the defendant is a pastor in that church or not.

29. As regards hotel business and spare parts shop under the management of the plaintiff, the court was not told of their value and whether they were of a going concern as at the time they separated in 2017 to determine parties’ entitlement. Since 2017, the plaintiff has been managing that business alone hence difficult to ascertain what constituted matrimonial property as at 2017. In the absence of any audited accounts of the two businesses as at 2017, it is hard to isolate matrimonial property in them from the investment injected by the plaintiff since then. Accordingly, they are not capable of ascertainment as matrimonial property for distribution. As regards motor vehicle KCD XXXA, the same was bought during coverture using proceeds from a loan facility taken jointly from the bank. Accordingly it constitutes matrimonial property.

30. Having held as above, am left with one conclusion to make and that is, the property measuring 40ft by 100ft at Likoni Kona Mbaya comprising the matrimonial home herein is hereby declared as Matrimonial property and therefore shared out equally. Therefore motor vehicle KCD XXXA shall be sold and proceeds realized therefrom shared equally. That the rest of the properties are not matrimonial properties. The said matrimonial home shall be valued by a mutually agreed valuer and the proceeds thereof shared out equally. Any of the parties can buy out the beneficial interest of the other.Regarding costs, each party shall bear own costs.

DATED SIGNED AND DELIVERED VIRTUALLY THIS 11THNOVEMBER 2022. ………………………J.N.ONYIEGOJUDGEJD.MSA.HC.MATRIMONIAL CAUSE NO.09 OF 2019 Page 5