[2023] KEHC 25123 (KLR)

AWK v AWK (Matrimonial Cause 12 of 2018) [2023] KEHC 25123 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25123 (KLR)

Republic of Kenya

In the High Court at Nakuru

Matrimonial Cause 12 of 2018

SM Mohochi, J

November 10, 2023

Between

AWK

Applicant

and

AWK

Respondent

Judgment

1. The proceedings before me stem out of an originating summons by the applicant dated October 30, 2018for the distribution of matrimonial property under sections 1, 1A, 3, 3A of the Civil Procedure Act and section 9, 12, 14 and 17 of the Matrimonial Property Act 2013. In it, AWK, the Applicant, seeks against AWK the Respondent, the following orders that;i.That All of that parcel of land known as Nakuru Municipality Block15/xxx together with all the developments and buildings thereon which is registered in the names of AWK and AWK be subdivided into equal shares (both in area, value and buildings) and the two subdivisions be registered separately and Titles or Certificate of Leases be issued separately in the names of AWK and AWK.Alternativelyii.That this Honourable court be pleased to order that a court appointed valuer do proceed all that parcel of land known as Nakuru Municipality Block15/xxx, carry out a current detailed and comprehensive accurate valuation thereof including all the buildings thereon, tender his or her report within a court given period of time; and upon such report being given, the court do appoint a court registered Real Estate Agent to sell either directly or through competitive bids all that parcel of land known as Nakuru Municipality Block15/xxx with all the buildings and other developments thereon and deposit the proceeds thereof in court within a court given period for the same to be shared equally between AWK and AWKiii.That the costs of the Summons be borne by the Respondent.

2. The grounds in support of the Originating Summons are found on the face of the Application and in the Supporting Affidavit sworn by the Applicant on 30th October, 2018. The Applicant states that the property in issue Nakuru Municipality Block 15/xxx, was acquired as a matrimonial home, developed, improved and maintained by joint efforts of the Applicant and Respondent during the pendency of their marriage.

3. That Applicant got married to the Respondent in the year 1974. The marriage was dissolved through Nakuru CMCC No. 818 of 2013 on 27th June, 2017. The Applicant is apprehensive that the Respondent will take up all the proceeds from the subject property as rental income without the Applicant benefitting.

4. The Applicant also avers that therespondent secretly sold Kambi ya Moto Block 1/xxx which was equally owed by both of them thus Nakuru Municipality Block 15/xxx should be shared equally between them

5. On her part the Respondent filed her response vide Replying Affidavit sworn on 3rd November, 2018. She deponed that the said property was solely bought by her in 1988 vide a bank staff loan she attached bank documents AWK (a) and (b)

6. The Respondent contends that she singlehandedly took care of management of the matrimonial affairs after the Applicant got married to two other women with whom he had other children. Further that the property Kambi ya Moto Block 1/xxx was also purchased through a staff bank loan and that she did not sell the land as alluded rather she was forced to sign sale documents in 2002 and found out later that the land had been sold to a third party.

7. The avers that despite the fact that the Applicant’s name they have been separated for 25 years and the other developments were done while the Applicant was away. She denies collecting rental income.

8. The Respondent is apprehensive that if the orders sought are issued she will be left homeless as she has been living there since 1988 while the Applicant benefits having established two other homes, one in Eldoret and the other one in Kitale. That the Applicant has not met the unities of joint tenancy.

9. The Respondent filed a further list of documents dated 26th June, 2023.

10. On 25th July, 2023 the matter came up for hearing and the parties agreed that the subject matter is in their subject names and left it to court do make a determination as to the distribution. Directions were issued for each party to file written submissions.

Applicant’s submissions 11. The Applicant submitted that he has legal interest in the Properties Nakuru Municipality Block 15/xxx and Kampi Ya Moto/Menengai Block 1/ and that the properties were acquired jointly during the pendency of the marriage.

12. The Applicant submitted that the property which is subject to this Application parcel known as Nakuru Municipality Block 15/xxx was purchased by taking a loan whereby since the Respondent could not meet the financial dynamics as she was not creditworthy he was to meet the loan terms flowing from the income of his butchery business. That the butchery business did so well that the Applicant chose to resign from her job whereby the Respondent managed the butchery business and the Applicant moved to Kitale to expand their own income flow.

13. That Respondent had an arrangement with the Applicant the Applicant would meet the educational, food, medical together with all house utilities and the respondent was to pay the loan arrears. That the Applicant actively participated in the lives of their children.

14. That the butchery business was mismanaged by the Respondent that it suffered a downfall being the sole income of the family. The applicant sourced funds to repay the loan arrears and the Respondent sought re-engagement back at her former employer. The Applicant further submitted that the Respondent’s pre-tax annual remuneration was captured and it is not accurate that she met all the financial burden of purchasing the subject property since the monthly earnings could not prove that the financed the loan and purchased Nakuru Municipality Block 15/xxx. It is the Applicant submissions that the Respondent has not provided further income sources to settle the loans as she has alleged and that the Applicant is the one who cleared the pending loans

15. The Applicant in grounding his solvency further contends that he secured a loan of Kshs. 1. 75 million from NIC Bank with Nakuru Municipality Block 15/xxx as security and has attached his bank statements from the year 1999 to 2001 as evidence.

16. The Applicant also submitted that together with the Respondent, they constructed some rental property on the Nakuru Municipality Block 15/xxx that were fully occupied in 2011 and the arrangement was that the income was to be split equally to which the Applicant has never received a penny from the business venture. He submitted that the rental income amounted to family business and relied on the provisions ofsection 2 of the Matrimonial Property Act as a ground for his claim to the rental income.

17. The Applicant submitted that during the pendency of the marriage the Applicant and the Respondent also acquired Kampi Ya Moto/Menengai Block 1/xxx measuring 3 acres and that the arrangement was for the Respondent to be listed as the borrower and the Applicant was depositing monies directly to the Respondent’s account. That in 2001 the Applicant found out that the Respondent had sold Kampi Ya Moto/Menengai Block 1/xxx to a third party without involving the Applicant and the sale agreement did not capture the name of the Applicant despite the property being registered in both their names and the banker’s cheque at Pg 41 of the Applicants bundle was addressed to the Respondent alone. That the matter was reported to the CID and police .

18. The Applicant relied on the following authorities to buttress his claim for equal sharing of the property.Nyeri HCCC No. 100 of 2001, Margaret Ngima Ndaguri vs Ndaguri Ngima AKM v NNNN (2019) eKLR

Respondent’s submissions 19. The Respondent on the other hand denies that the property Nakuru Municipality Block 15/xxxconstitutes matrimonial property.

20. The Respondent submitted that the Applicant did not contribute to the purchase of the matrimonial property. That they lived in the property for many years but the Applicant deserted their home and moved to another home with another family. As such the said home has not been their home for many years. That the only reason the property is in the name of both parties was because the policy at the Respondent’s workplace required women to be registered together with their spouses before being financed to purchase property. The Respondent denies the Applicant assisted in offsetting the loan and relied on the Supreme Court case in JOO vs MBO; Federation of Women Lawyers (Intended Interested Party) Law Society of Kenya & 3 Others (Amicus Curiae) (2021) eKLR that specific contribution has to be ascertained

21. The Respondent further submitted that the Applicant did not ascertain contribution as he did not make any payments toward the purchase of the property and that the contribution was enforced contribution that required his name only to be part of the requirements for the Respondent to obtain a bank loan. She relied on TKM v SMW (2020) eKLR on contribution

22. That in consideration of the provisions of section 2 of the Matrimonial Property Act there was little or no contribution. The only made very minimal contribution towards child care which does not warrant his demanding of an equal share. That he only sent money to take care of his children upon moving to Kitale which cannot sustain a claim of half the suit property. She relied on the case of PNN v ZWN (2017) eKLR

23. The Respondent in conclusion submitted that the Applicant should not be allowed to benefit from where they did not sow.

Analysis and Determination 24. In my considered view the following are issues for determination that arise;i.Is Nakuru Municipality Block 15/xxx considered matrimonial property?ii.What contribution if any did the Applicant make towards the acquisition Nakuru Municipality Block 15/xxx and how should it be shared?

25. On the first issue, I am guided by section 6 (1) of the Matrimonial Property Act on what amounts to matrimonial property that defines matrimonial property as;a.the matrimonial home or homes;b.household goods and effects in the matrimonial home or homes; orc.any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.

26. The Applicant submits that Nakuru Municipality Block 15/xxx constitutes matrimonial property, on the other hand the Respondent contends that she that the said property does not constitute matrimonial property and insisted that she single handedly contributed towards their acquisition by securing a loan from her them employer Barcklays Bank and the only reason the name of the Applicant appears in the ownership document was because her then employer had a policy which would allow women to get financing for purchasing property if the property was registered in the name of their spouses.

27. Under section 2 of the Act, ‘Matrimonial home’ has been defined as:-any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property.

28. Nyakundi J. in the decision in T.M.V. vs F.M.C (2018) eKLR, Nyakundi J. stated that;“…for property to qualify as matrimonial property, it ought to have been acquired during the subsistence of the marriage between the parties unless otherwise agreed between them that such property would not form part of matrimonial property.”

29. The Applicant claimed to have married in 1974 under the Kikuyu customary law, the Respondent has admitted those assertions. The divorce was finalized vide decree dated 27th June, 2017. The property Nakuru Municipality Block 15/xxx was registered on 23rd May, 1997 during the pendency of the marriage. The said property meets the definition in section 6 and qualifies as matrimonial property.

30. On the second issue, the question that needs determination under the issue is whether the Applicant has proved contribution and to what extent.

31. Having mulled over the rival arguments on the issue of contribution towards the acquisition and developments of the subject matrimonial property. I have also read and analyzed the authorities cited by each side. I am cognizant of the fact that this case must be dealt with on the basis of its peculiar facts as enumerated by Court of Appeal in TKM v SMW [2020] eKLR where it is stated as follows:“…We bear in mind the edict in Muthembwa v. Muthembwa (2002) 1 EA 186, and many other decisions reminding the courts that in assessing the contribution of spouses in acquisition of matrimonial property, each case must be dealt with on the basis of its peculiar facts and circumstances but bearing in mind the principle of fairness….”

32. Section 2 of the Matrimonial Property Act 2013 defines contribution towards the acquisition of matrimonial property as:In this Act, unless the context otherwise requires—“contribution” means monetary and non-monetary contribution and includes—a.domestic work and management of the matrimonial home;b.child care;c.companionship;d.management of family business or property; ande.farm work.

33. It is a common ground that there were 2 properties acquired during the marriage; Nakuru Municipality Block 15/xxxand Kambi ya Moto Block 1/xxx. That were registered in the joint names of the parties in this suit there seems to be a dispute as to the contribution of either party in purchase and development of Nakuru Municipality Block 15/xxx.

34. Section 14(b) of the Matrimonial Property Act provides that:-Where matrimonial property is acquired during marriage—(b)in the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal.

35. Regardless, section 7 provides:“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.”

36. The law under the matrimonial property Act recognizes both the monetary and non-monetary contribution of parties in a marriage.

37. Under article 45(3) of the constitution:“Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.”

38. The constitutional provision grants equal rights to parties to a marriage but does not necessarily equal sharing of matrimonial property unless the contribution is determined to being equal contribution to the other party.

39. The Respondent produced loan papers and her bank statement to show how deductions were affected from her salary while serving as an employee of Barclays bank. The Respondent admitted that the properties were both acquired during subsistence of the marriage but denied that the same were acquired through joint efforts claiming that the Respondent had not made any contribution to the purchase of the property and further that the purchase was vide by a bank loan which the Respondent solely financed.

40. Although the offer letter dated April 9, 1988 states the loan amount as Kshs. 311,575 the court has not been informed how much the purchase price was. The court does not have the advantage of comparative evidence from either party.

41. The court also notes that the Respondent retired from the bank upon request effective December 21, 1987 and she was re-engaged by the Bank from 8th November, 1888. That is a period of one year that the Respondent was not in the employment of Barclays bank. The offer letter is dated 9th April, 1988 the time during which the Respondent was not employed. The questions this court asked itself is How was she afforded a staff loan yet she was no longer a staff? Furthermore, how was she able to meet basic needs if at all she was not employed and was servicing a loan? The Respondent quit her job since there was security of sustaining basic needs and the loan was being financed somehow.

42. Further looking at her re-engagement letter, she was reengaged at a salary of Kshs. 90,000 per annum translating to Kshs. 7,500 per month before deductions. The Respondent has not demonstrated that she had other extra sources of income to sustain herself and her family during the time that she was not employed or after re-employment. That salary could not have financed the loan and catered for basic needs of the home. I think the Respondent is not honest before court.

43. To ascertain his contribution, that Applicant claims to have been sending money at home from his business in Kitale. The Applicant also shared a letter from his daughter thanking him for paying school fees, an affidavit dated 29th August 2000 confirming his ability to support his daughter EWK for further studies in the United States and attached copes of bank statement from Standard Chartered Bank. He has also attached a water bill and some receipts for rate payments. That in my books counts as non-monetary contribution.

44. The Respondent has submitted that the Applicant never took part in purchasing the property and only contributed little towards the welfare of the children. Taking care of the children is confirmation of non-monetary contribution.

45. Despite the Respondent denying selling Kampi ya Moto/Menengai 1/xxx and averred that she was forced to sign some documents by the Applicant and found out later that the land was sold to a third party. The Applicant has produced a sale agreement dated 14th July, 2001 to show that the Applicant sold Kampi ya Moto/Menengai 1/xxx to a third party where only her name was written in the agreement despite the property being registered in their joint names . A cheque No. 003173 was issued in her name dated 13th July, 2001. There were subsequent complaints made to the police and the Director of Criminal Investigation Nakuru. I cannot be convinced that the Respondent was unaware or uninvolved in the sale of that land

46. In a letter dated 12th August, 2013 the Applicant through his lawyers wrote to the Respondent to sit down and find out how to recover Kampi ya Moto/Menengai 1/xxx or alternatively the Applicant recovers the value of the land Nakuru Municipality Block 15/xxx instead of commencing criminal investigations. The Respondent has had a benefit to sale of a matrimonial property to the exclusion of the Applicant despite her not producing evidence of her being the sole purchaser.

47. Looking at this case, the Respondent has not convinced the court that she bought the said property single handedly. It is quite unfortunate that the parties have found themselves in this situation. If they had known they would have found themselves in this situation, then they would kept records of contribution but that is not the case since nobody enters into a marriage with the idea of ever ending the marriage.

48. In EKTM v ECC [2021] eKLR the court observedIt must however be appreciated that when two people meet and the marriage ship takes off from the dock, none of the passengers ever foresee that the ship would hit the turbulent waters in future. It is only when they are in deep seas and the ship has hit a rock and is about to capsize that they realised that they ought to have taken certain measures during the course of their voyage. By then too much water has gone under the bridge and there is little in terms of documentary evidence that can be retrieved as regards their monetary contributions. Consequently, none of them sees the need to keep documentary evidence of the expenses they incur towards the sustenance of the family. In fact, the keeping of such documents may bring problems to the couple as it may be deemed to lack of trust.

49. In determining contribution, I will consider the peculiar nature of this suit. I have considered the evidence on record and I find that both parties made both monetary and non- monetary contributions towards the purchase and development of the suit property. To what extend is what neither party has afforded court with evidence. The developments in the suit property have not been well described as to what developments are there the court is unaware, the number of rental houses and how they were developed, how much the property was purchased. The parties have left the share distribution to the discretion of the court.

50. Nevertheless, any form of contribution the subsequently led to the purchase of a property whether directly or indirectly played a role in purchase of that property and where there is no evidence of how much either party contributed, equality should be applied. Both gained money which was used on the family unit. The Respondent already benefited from the sale of Kampi ya Moto Menenagai Block/xxx a 50%: 50% division is therefore reasonable in the circumstances of this case.

51. I am satisfied that the Applicant has proved his case on a balance of probability and thus enter judgement and order as follows;a.That the applicant is entitled to half share beneficial interest in the property known as Nakuru Municipality Block 15/xxxb.That the said property shall be shared based on valuation report filed in court prepared by valuer agreed by both parties and the proceeds be shared equally between the Applicant and Respondent.c.In the alternative, either party shall buy out the beneficial interest of the other in the said property in monetary terms.d.There shall be no orders as to costs.It is so ordered.

DATED, SIGNED AND DELIVERED AT NAKURU ON THIS 10TH DAY OF NOVEMBER 2023. MOHOCHI S.M.JUDGE OF THE HIGH COURT.