[2025] KEELC 4834 (KLR)

AWG v DNK (Deceased Represented by His Personal Representatives) & another; DMG (Interested Party) (Environment & Land Petition 4 of 2022) [2025] KEELC 4834 (KLR) (24 June 2025) (Judgment)

Neutral citation: [2025] KEELC 4834 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Petition 4 of 2022

CA Ochieng, J

June 24, 2025

(Formerly HCCHR Division Petition No. 18 of 2020) IN THE MATTER OF THE ENFORCEMENT OF THE BILL OF RIGHTS UNDER ARTICLE 22(1) OF THE CONSTITUTION OF KENYA (2010) AND IN THE MATTER OF THE CONSTITUTION OF KENYA 2010, ARTICLE 2 (5), 2 (5) B AND IN THE MATTTER OF ARTICLE 21 (3), 27 (3), 29, 35 AND 40 (1), 45 AND 68 (C) (III) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF ARTICLE 6(1) (H) OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN AND IN THE MATTER OF ARTICLE 16(1) OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS AND IN THE MATTER OF ARTICLE 7 (D) OF THE PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND PEOPLE’S RIGHTS ON THE RIGHTS OF WOMEN IN AFRICA AND IN THE MATTER OF ARTICLE 159 (2), 258 OF THE CONSTITUTION

Between

Dr. AWG

Petitioner

and

Dr. DNK (Deceased Represented by His Personal Representatives)

1st Respondent

Crescent View Holdings Ltd

2nd Respondent

and

DMG

Interested Party

Judgment

1. Through a Petition dated the 14th January, 2021, the Petitioner seeks for judgment against the Respondents in the following terms:1. Spent2. A declaration that the Petitioner has occupational rights and the same cannot be terminated or defeated in any manner whatsoever by the Respondents.3. An order prohibiting, restricting and interdicting the Respondents from in any way, directly or indirectly, dealing with the home contrary to such occupational rights, either by themselves or by their agents nor in the guise of the 2nd Respondent by the 1st Respondent.4. Costs of this Petition.

2. The Petition was supported by the affidavit of the Petitioner where, she deposes that she is the wife of the 1st Respondent. She explains that together with the 1st Respondent, they are shareholders of the 2nd Respondent. Further, that she owns 30% shares while the 1st Respondent holds 70% shares. She contends that LR Nairobi /Block 110/111 hereinafter referred to as the ‘suit land’, is their matrimonial home which is registered in the name of the 2nd Respondent. She claims that the 1st Respondent had transferred his shares in the 2nd Respondent, to the Interested Party who is his son and disposed of the matrimonial property without her consent.

3. The Respondents opposed the instant Petition, but the 1st Respondent died. Further, prior to the 1st Respondent’s demise, the parties had gone for mediation culminating in the Petition being compromised through a consent judgment recorded on 20th April, 2023. However, the Interested Party later sought joinder to the Petition, which was granted and the consent judgment was then set aside on 21st November, 2023.

4. The Interested Party later filed a replying affidavit dated the 11th February, 2024, opposing the Petition. He contends that he is opposing the Petition in his capacity as a majority shareholder in the 2nd Respondent company. He confirms that the Company was incorporated on 25th August, 2003. Further, that the Petitioner is a Shareholder having 30% shares. He insists that the 2nd Respondent is a Company governed by the Companies Act. He contends that the Petitioner has been performing her duties as a Shareholder and Director of the 2nd Respondent and made reference to the sale of the Company’s land in Naivasha being Uns. Industrial Plot No. 77. Further, that the Petitioner is still a signatory of the 2nd Respondent’s account. He insists that the suit land is a company investment and not a matrimonial home as claimed. He reiterates that the 2nd Respondent is a company run by resolutions passed under the Companies Act.

5. The Petitioner filed a rejoinder affidavit reiterating her averments in the Petition and avers that she was lawfully married to the 1st Respondent from 2nd March, 1990 until 23rd June, 2023 when he passed on. She contends that they sold their property in the United States of America (USA) to purchase a matrimonial home in Kenya. Further, that upon returning from the USA, they jointly identified the suit land as their matrimonial home and purchased it, in 1999.

6. She argues that the Transfer Instrument dated 2000 clearly shows that the property was transferred to the 1st Respondent’s name and they built their matrimonial home thereon, moving into it, in 2002, long before the incorporation of the 2nd Respondent. She admits that the 1st Respondent transferred 70% shareholding to his son D.M.G. (Interested Party) freely and Voluntarily and the Transfer was without consideration hence a Gift. Further, that the Interested Party is a son whom the 1st Respondent got before he married her. She denies benefitting from proceeds of sale of any property owned by the 2nd Respondent. She reiterates that her Petition is not false. Further, that she clearly outlined her grievances as a wife and minority shareholder, which has significant legal implications. She reaffirms that the 1st Respondent retains rights associated with the monetary value of his contributions, while the Interested Party has made no contribution so far.

7. The Petition was canvassed by way of written submissions.

Submissions Petitioner’s Submissions 8. The Petitioner in her submissions reiterates her averments in thePetition including the respective affidavits. She highlights the background of the Petition and the proceedings herein. She submits that the suit land is recognized as matrimonial property in Kenya as they have continuously occupied it since 2002 as a family home. Further, that she holds guaranteed 30% shareholding in the 2nd Respondent, through which the contested property is held. She insists that she is not required to prove individual monetary contributions. She further submits that her interest in the suit land endures regardless of any attempt at corporate re – characterization. She further submits that the 1st Respondent’s unilateral transfer of the suit land to the 2nd Respondent merely transferred de jure title, leaving the de facto beneficial interest – accrued through joint matrimonial contributions vested within the marital union.

9. She avers that despite the transfer of the legal title, the underlying presumption of equal beneficial ownership remains and such a presumption is not easily displaced in the context of joint matrimonial contributions. She urges the court to pierce the corporate veil. Further, that the 1st Respondent’s demise does not extinguish the legal consequences of his unilateral transfer, which remains binding on his estate and it’s intents to circumvent matrimonial claims, warrants judicial scrutiny. She states that the transfer of shares to the 1st Respondent’s son constitutes a valid donatio mortis causa (DMC). Further, that the transfer did not convey any change in the beneficial control or ownership of the suit land held by a company. She further submits that the transfer qualifies as a gift in accordance with section 31 of the Law of Succession Act.

10. To support her averments, she relied on sections 2, 6(1) (a), 12 (1), 12(3) and 14 of the Matrimonial Properties Act; section 3(1) (2) of the Marriage Act; Article 45 (3) of the Constitution; Section 93(2) of the Land Registration Act including the following decisions: AKK v PKW Civil Appeal No. 61 of 2019; Njoroge v Ngari (1985) KLR, 480; Mwangi v Mwangi (1996) eKLR; Peter Mburu Echaria v Priscilla Njeri Echaria CCA No. 75 of 2001; Salomon v Salomon & Co. Ltd (1897) AC 22; Prest v Petrodel Resources Limited (2013) UKSC 34 and Re Estate of Makokha Idris Khasabuli (2019) eKLR.

2nd Respondent and Interested Party’s Submissions 11. They submitted that the Petitioner is a minority Shareholder suing the Company and majority shareholder, which suit should ordinarily be brought under section 222 or 221 of the Companies Act. Further, that jurisdiction would lie with the Commercial division of the High Court. They reiterate that the Petitioner holds 30% while the Interested Party holds 70% of the 2nd Respondent. They further submit that the Petition offends the doctrine of avoidance as it is engaged in an exercise of ballooning issues so as to create non-existent constitutional issues. They reaffirm that the reliefs sought by the Petitioner do not warrant the filing and hearing of a Petition. Further, that the Petition has not met the threshold of a matrimonial property cause as the Petitioner’s share is already determined, having willingly joined the 2nd Respondent in 2017, as a director/shareholder and is well seized to participate in decision making. To support their averments, they relied on the following decisions: NGV v CNV also known as CHM (Matrimonial Cause 6 of 2021) (2022) KEHC 16645 (KLR); AKK v PKW (2018) eKLR and KKB v SCM & 5 Others (Constitutional Petition 014 of 2020) (2022) KEHC 289.

Analysis and Determination 12. Upon consideration of the instant Petition, respective affidavits, annexures and rivalling submissions, the following are the issues for determination. Whether the Petition meets the threshold of a Constitutional Petition.

Whether this Court has jurisdiction to handle this matter.

Whether the Petition is merited.

As to whether the Petition meets the threshold of a Constitutional Petition.

13. The Petitioner claims infringement of her proprietary rights to Nairobi Block 110/ 111, which she contends to be matrimonial property. She cites violation of property rights as a married woman under Article 6 (1) (h) of the International Convention on the Elimination of All Forms of Discrimination against Women, Article 16(1) of the Universal Declaration of Human Rights, Article 7(d) of the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa and Article 45 (3) of the Constitution of Kenya. She seeks an order prohibiting the Respondents from interfering with the suit parcel.

14. At the submissions stage, the Petitioner widely relied on the Matrimonial Property Act, 2013, the Marriage Act, Chapter 150, Section 93 of the Land Registration Act as well as Article 45 of the Constitution to argue that there is a presumption of joint ownership for all property acquired during the subsistence of a marriage.

15. The 1st Respondent passed away in the course of proceedings. The 2nd Respondent and the Interested Party fielded a joint defence, contending that the Petitioner is only making an attempt to circumvent the Companies Act so as to appropriate to herself, property which belongs to the 2nd Respondent company, and by extension other shareholders. They also aver that since there was no prayer in the Petition stating that the suit land is matrimonial property, the same should be disregarded.

16. It is not in dispute that the Petitioner is the wife to the 1st Respondent (now deceased). It is further not in dispute that both the Petitioner and 1st Respondent were shareholders of the 2nd Respondent wherein the Petitioner held 30% shares while the 1st Respondent had 70% shares. It has emerged that the 1st Respondent transferred his shares to the Interested Party, prior to his demise. It is further not disputed that the suit land is registered in the name of the 2nd Respondent company.

17. The Petitioner seeks a declaration that her occupational rights cannot be terminated or defeated in any manner whatsoever by the Respondents and that an order should issue prohibiting or restricting the Respondents from in any way, directly or indirectly, dealing with the home contrary to such occupational rights, either by themselves or by their agents. From the prayers sought in the Petition including responses by the Respondents and Interested Party, it is clear that the fulcrum of the dispute revolves around ownership of the suit land, which is registered in the 2nd Respondent’s name. She insists that even though the suit land is registered in the name of the 2nd Respondent, it constitutes matrimonial property. This brings me to the question that if this is the claimed position, then does this Petition meet the threshold of a Constitutional Petition.

18. In the case of Anarita Karimi Njiru v Attorney General [1979]KLR 54, it was held that any Petitioner seeking redress under the constitution must state his claim with precision, referring to the Constitutional provisions which have been violated.

19. Further in the case of Mumo Matemo v Trusted Society of Human Rights alliance [2014] eKLR, it was held that:“…The principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court… Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle”

20. While in the case of Kenya Bus Services Ltd v Attorney General & 2 Others (2005) 1 KLR, it was held that:“…Fundamental rights and freedoms are contained in the Constitution and are principally available against the State because the constitution’s function is to define what constitutes Government and it regulates the relationship between the Government and the Governed. On the other hand the rights of individual interests are taken care of in the province of private law and are invariably redressed as such….”

21. In this instance, the Petitioner seeks redress against the Respondents and Interested Party for having interfered with the ownership of the suit land, which she contends hosts their matrimonial home. Even though she has highlighted her grievances against the Respondents and Interested Party, it is my considered view that the fulcrum of the dispute herein falls within the ambit of Matrimonial Property Act as well as the Companies Act and not the Environment and Land Court. Further, I find that the alleged Constitutional issues have not been properly framed. In the foregoing while associating myself with the decisions cited, I find that the Petition does not meet the threshold of a Constitutional Petition.

As to whether this Court has jurisdiction to handle this matter. 22. From the Petition and the respective affidavits, it has emerged that the suit land is indeed registered in the name of a Company, which is the 2nd Respondent herein. It is trite that the disputes relating to companies including their Shareholders are governed by their respective Memorandum of Association and Articles of Association.

23. I opine that it the High Court commercial division that is entrusted with the jurisdiction of handling disputes revolving around Companies as Section 13 of the Environment and Land Court Act, which stipulates jurisdiction of the ELC does not confer jurisdiction of this Court to handle disputes revolving around Shareholders of companies. In the circumstances, I find that this Court does not have jurisdiction to handle this Petition.

As to whether the Petition is merited. 24. Since I have already held that the issues raised in this Petition are governed by private law and should have been filed in either the High Court Commercial Division or Family Division, in the interest of justice, I will not delve into handling them. It is my considered view that the Petitioner should have proceeded to file this matter in one of the said courts instead of filing it as a constitutional Petition.

25. In the foregoing, I find that the Petition is unmerited and will proceed to strike it out.

26. Each party to bear their own costs.

DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF JUNE 2025CHRISTINE OCHIENGJUDGEIn the presence of:Moranga for PetitionerKimtai for 2nd Respondent and Interested PartyCourt Assistant: Joan