[2023] KEHC 25021 (KLR)

Akoth v Soro (Miscellaneous Application E003 of 2023) [2023] KEHC 25021 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25021 (KLR)

Republic of Kenya

In the High Court at Migori

Miscellaneous Application E003 of 2023

RPV Wendoh, J

November 9, 2023

Between

Rosemary Hillary Akoth

Applicant

and

Hillary Wasonga Soro

Respondent

Ruling

1. This ruling is in respect to the Notice of Motion dated 10/5/2023 (the application). The application is based on the grounds found in the body of the application and the supporting affidavit of Rosemary Hillary Akoth (the applicant) sworn and dated 10/5/2023. The applicant seeks the following orders: -a.That this court be pleased to grant leave to the applicant to file an Originating Summons for division for matrimonial property out of time;b.That cost of this application abides by the intended suit.

2. The applicant deposed that sometime in the year 2005, she got married to Hillary Wasonga Soro (the respondent) under the Luo Customary Law but they divorced on 18/12/2018 and a decree absolute was issued; that their union was blessed with three issues; that during the subsistence of their marriage, they jointly acquired LR No Suna West/Wasweta II/4976 measuring 0. 42 hectares upon which they built their matrimonial home (suit property); that the suit property was registered in the name of the respondent; that besides from contributing to the purchase of the two portions of land which made up the land where the matrimonial home was built, she is the one who built all the internal fixtures of the house using a loan from Devco which is a staff Sacco where she was employed at International Peace Support Training Centre.

3. The applicant alleged that after building the internal fixtures, the respondent deserted her and proceeded to remarry; that after dissolution of her marriage, she moved to Sweden and remarried; that in a bid to find an amicable solution to this issue, the respondent requested Kshs 300,000/= to facilitate registration of the suit property in the names of the applicant and the respondent as joint proprietors; that to facilitate the joint registration, the applicant wrote a letter to the Land Registrar to remove the caution on the suit property; that the respondent sent to the applicant screenshots of fake title deed which bore both their names; that in April 2022, the respondent moved his second family to their matrimonial home; that the applicant has attempted to get details of most of their matrimonial properties which the respondent has hidden hence the decision to pursue this cause.

4. The applicant stated that she has been advised that pursuant to Rule 5 (2) (3) of the Matrimonial Property Rules 2022, a suit for division of matrimonial property should be filed within one year of dissolution of the marriage; that failure to file the suit on time was not deliberate, intentional or calculated; that her three children have no place to call home when they visit Kenya; that the respondent will not suffer any prejudice if the application is allowed.

5. The application was opposed. The respondent filed a replying affidavit dated 7/7/2023. In relation to the instant application, the respondent deposed that the delay of 5 years is inordinate, unjust and meant to disenfranchise the respondent given that he has since established his second family in this suit property; that his children are welcome to his home when they are in Kenya; that the instant suit property is not a matrimonial home therefore unavailable for division; that he is the sole proprietor of the suit property since it was registered in his name during the pendency of the marriage; that Suna West/ Wasweta II/4976 is a new title arising out of a consolidation of three different land from three different parties at different times; that out of the three purchases, the applicant assisted in paying for one; that her assistance was limited to him sending her money to deliver as he was engaged at his work station in Oloitoktok while she travelled up county.

6. It was further deposed that they purchased another property Suna West/Wasweta II/3588 and it has been registered in the applicant’s name to compensate her in assisting in one of the purchases; that the sale agreement by the applicant appears to be a forgery as all the sale agreements were in his name; that during the subsistence of their marriage, each party maintained their assets which they did not intend to share with each other; that the respondent purchased Athi River Block 17/102 which was divided and shared amongst Amref Sacco Members where the respondent is a member but his share went to the applicant; that the respondent registered all the properties that he did not intend to be solely his, in the name of the applicant; that after the divorce, each party took their assets held in their individual names and went their separate ways.

7. It was deposed that the applicant took motor vehicle registration number KBK 990A a Volkwagen Polo which he bought for her, the Athi River Amref Plot, the second Wasweta II plot and all household items; that the applicant’s husband gave him a friendly loan of Kshs 300,000/=; that the WhatsApp messages did not happen and the manner in which the evidence is introduced is improper; that the applicant cannot rely on the loan given to him to lay claim on the suit property; that the applicant is being dishonest in claiming that the suit property has been improved as there is no septic tank and none of the rooms have been fitted with any finishings; that it is in the best interest of justice that the application be struck out with costs as it is an abuse of the court process.

8. The applicant filed a further supplementary affidavit dated 14/9/2023. She deposed that the respondent’s family home is erected on LR Suna East/Wasweta 1/21056 which is registered in the name of the respondent’s second wife where they have been residing but moved to the suit property in April 2022; that the respondent has leased the matrimonial home with the second wife and he derives an income from it; that the respondent purchased several other properties in Oloitoktok in order to defeat the division of matrimonial property; that some of the properties are developed and the respondent derives income from them.

9. The applicant reiterated that she bought the suit property jointly with the applicant and she single handedly developed the property after the respondent deserted her; that she bought two out of the three portions which were consolidated and it is where the suit property stands; that the transfer was solely done in the respondent’s name; that she single handedly purchased Suna West/ Wasweta II/3588 and the Athi River property; that the sale agreements are valid and the witnesses are alive to testify on the substantive suit if leave is granted; that she sold motor vehicle KBK 990A to defray outstanding expenses for the children and used part of the money to relocate to a cheaper home and relocate the children to a cheaper school; that the vehicle did not exist at the time of the divorce; that there is a septic tank in the suit property and the respondent cannot attest to that since he was away during the construction; that the respondent disposed of some of the properties without her consent that is Suna East/Wasweta I/19040 in 2014. The applicant contended that the respondent’s actions are calculated to take everything from her for the benefit of the alleged wife and children.

10. Both parties filed their respective written submissions. The applicant filed submissions dated 3/10/2023. The applicant submitted that the application is premised on Rule 5 (2) of the Matrimonial Property Rules, 2022 which came into effect on 12/8/2014 and which rule allows this court to extend the time for making an application for division of matrimonial property where a good cause has been shown.

11. The applicant relied on the case of Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & 7 others (2014) eKLR where the Supreme Court considered and outlined the guiding principles in applications for extension of time; that the applicant knew that the matter was between the parties was settled in the year 2019 but she came to know of the deception in April 2022 when the respondent moved to the suit property with his second wife; that in the spirit of Article 159 (2) (c) of the Constitution, the applicant sought to amicably resolve the issue of division of the matrimonial property; that the applicant has discharged the burden with respect to the events leading upto this dispute.

12. On whether the application has been brought without unreasonable delay, it was submitted that when the applicant learned of the deceit in 2022, she started the process of looking for the relevant evidence in support of her case; that the Matrimonial Property Rules 2022 came into effect on 12/8/2022 which imposed a one year requirement of filing suits for division of matrimonial property after dissolution of marriage; that in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others (2012) eKLR the Supreme Court stated that statutes other than those which are merely declaratory or which relate to procedure are prospective and retrospective effect is not to be given to them.

13. It was submitted that the Matrimonial Property Act 2013 is not a procedural statute; that consequently, the rules made thereunder applys retrospectively; that the instant application was brought a few months after its commencement and the delay is not inordinate; that one year has not lapsed from the time the Rules were promulgated to the time the application was filed.

14. In the event the court is not persuaded, the applicant submitted that Article 50 (1) guarantees a fair trial and relied on the case of John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others (2021) where the Supreme Court enunciated on the principles of right to fair trial; that the retrospective application of the Matrimonial Property Rules, 2022 is to impair the rights of the applicant to a fair trial by denying her an opportunity to be heard.

15. On whether the respondent will be prejudiced, the applicant submitted that the respondent’s second family home is erected on LR Suna East/Wasweta I/21056 and registered in the name of the alleged wife; that leave to file suit for division of matrimonial property will serve the best interests of justice.

16. The respondent filed his written submissions on 2/10/2023. On whether there was delay in filing the suit, it was submitted that the operative law after divorce was the Matrimonial Property Act No 49 of 2013 and the rules therein; that Rule 5 is couched in mandatory terms and the party seeking to rely on this rule has no wiggle room; that a delay of five (5) years is unreasonable and the applicant has not explained the delay; that the applicable principles for extension of time were set out in RMG v NG (2021) eKLR.

17. The respondent further submitted that the applicant wants the court to grant her leave to file suit for division of all the properties held in the respondent’s name which she alleges is matrimonial property whereas all the properties she acquired in her name, are hers during which period she was a housewife; that supposing it is true the applicant was duped about the matrimonial property hence the delay, the respondent questioned why the delay in regard to other properties which the applicant now lays claim as matrimonial property.

18. On whether there would be prejudice if the application is allowed, the respondent submitted that he has made the suit property his home and settled there with his new family; that there was no action from the applicant for five years and his understanding is that each party left the marriage with their respective properties hence the lack of filing a division of property suit on his part. The respondent urged this court to dismiss the application with costs.

19. I have considered the Notice of Motion, its supporting and further affidavits, the response and the submissions by both parties. The issue for consideration is whether time should be extended for filing of the matrimonial cause.

20. It is not in dispute that a certificate of making decree nisi absolute dated 17/9/2018 was issued dissolving the parties’ marriage. Both parties agree that the operative law which is applicable is the Matrimonial Property Act 2013 and the Rules therein. At the time when the decree absolute was issued on 18/12/2018, the Matrimonial Property Rules, 2022 (the Rules) were not yet enacted. Rule 36 of the Rules provides for the Transitional Provisions. The Rule provides that all matters pending before court at the time of coming in force of these Rules, the Rules shall apply. There was no pending dispute over the matrimonial properties by the parties in any court. Therefore, the Rules will apply.

21. Rule 5 of the Matrimonial Property Rules, 2022 provides that a spouse or a former spouse may apply to a court for the determination or declaration of any right or claim over the matrimonial property.Rule 5 (2) provides: -“An application under paragraph 1 (a) shall be filed within twelve (12) months from the date on which the decree absolute is given.”Rule 18 provides: -“No party may file any pleadings or other process out of time except with leave of the court on application for extension of time for that purpose, and on such terms as the court may think just.”

22. The applicant ought to have filed the matrimonial dispute within a year after the date of the decree absolute that is on or before 17/9/2018. In as much as the respondent’s position is that Rule 5 (2) is couched in mandatory terms and there is no room for extension of time, Rule 18 allows the court to exercise its discretion to extend the time for filing a matrimonial cause or dispute upon application by a party. The applicant filed this application seeking extension of time to be allowed to file the matrimonial cause out of time as per the provisions of Rule 18.

23. In Nicholas Kiptoo Arap Korir Salat (supra) the Supreme Court of Kenya outlined the following as the guiding principles to be considered before granting a party orders for extension of time as follows: -a.extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;b.a party who sought for extension of time had the burden of laying a basis to the satisfaction of the court;c.whether the court should exercise the discretion to extend time, was a consideration to be made on a case-to-case basis;d.whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;e.whether there would be any prejudice suffered by the respondents if the extension was granted;f.whether the application had been brought without undue delay; andg.whether in certain cases, like election petitions, public interest should be a consideration for extending time.

24. Guided by the above principles, extension of time is a discretionary right which has to be determined on a case to case basis. A party seeking extension of time orders has to also satisfy the court on the reason of the delay, whether there would be any prejudice suffered by the respondent and whether the application has been brought without undue delay.

25. The applicant alleged that she was convinced that the dispute between her and the respondent concerning the suit property was solved after the respondent sent to her a title showing that the suit property has been registered in their joint names. The suit property, as agreed by both parties, was consolidated land from three different parcels of land. The respondent admitted that the applicant purchased one of the parcels while the applicant deposed that she purchased two of the three parcels of land. The applicant further contended that she took a loan from Devco a staff Sacco towards the construction of the interior fittings of the suit property.

26. In his replying affidavit, the respondent annexed the title of the suit property ‘HWS-11” which shows that the land where the suit property is situated is solely registered in his name. The said title was issued on 25/11/2015. On the other hand, in her supplementary affidavit the applicant annexed a similar title of the suit property “RHA-11” which shows that the title is in the joint names of the applicant and the respondent. The said title was issued on 27/3/2019. This certainly raises some questions on how the same suit property has two different titles. This court is inclined to believe that there is a possibility that the parties had an understanding to have the suit property registered in the names of both parties. It is on that understanding that the applicant wrote a letter dated 15/3/2019 to the Land Registrar to remove the caution from the suit property to facilitate its registration in the names of the parties.

27. Section 6 of the Matrimonial Property Act, 2013 defines matrimonial property to include but not limited to matrimonial home(s). The respondent is not denying that the suit property was a matrimonial home but his contention is that the applicant took other properties in order to forego her claim in the suit property. The respondent is also denying that the applicant contributed towards the development of the suit property. Be that as it may, since there is an admission that the suit property was a matrimonial home and the applicant is claiming her rights in the suit property, it would be in the best interest of both parties to ventilate their issues in a substantive suit and adduce evidence to substantiate their claims.

28. The period of delay is 5 years from the date when the decree absolute was issued. The applicant stated that after the divorce was finalized, she was under the impression that they would have solved the dispute amicably. Therefore, there was no need to file the matrimonial property scause. It was not until April 2022 after the respondent moved his family into the suit property that she decided to take action. As I have observed hereinabove, there are two conflicting titles of the suit property. Since the applicant was convinced that the suit property was being registered in the joint names of the parties and was sent a copy of the title to that effect, there would have been no need to file a matrimonial cause over the suit property. The delay in filing the matrimonial cause, cannot be entirely blamed on the applicant. It is after finding out that the respondent had moved into the matrimonial home with his second wife in April 2022, that the applicant filed this application seeking leave on 10/5/2023. I find that the delay has been satisfactorily explained.

29. On the prejudice to be suffered, the respondent has not denied that the suit property was a matrimonial home. I therefore find that the respondent will not suffer any prejudice if this court was to allow this application since the respondent will have the opportunity to prove if the applicant is entitled to a share of the suit property.

30. In the absence of being given an opportunity to file the matrimonial cause out of time, this court will not assume the requisite jurisdiction to hear and determine the dispute between the parties. The best interests of justice demand that a party should be accorded every reasonable opportunity to ventilate their grievances within our judicial system.

31. In the end, I find that the application dated 10/5/2023 is merited and the following orders do issue: -a.The applicant is hereby granted leave file a Matrimonial Property Cause out of time.b.The applicant to file and serve the Matrimonial Property Cause within 30 days hereof.c.The respondent to file and serve his response within 30 days from service.d.In default of compliance with order (b) above, the applicant will not be granted any further extension of time to comply.e.Mention on 5th March, 2024 for further directions.f.Costs be in the cause.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 9TH DAY OF NOVEMBER 2023. R. WENDOHJUDGERuling delivered in the presence of;Ms Akoya holding brief for Ms. Atieno Opiyo for the Applicant.Mr. Ochieng holding brief for Ms. Misare for the Respondent.Emma & Phelix Court Assistants.