[2022] KEHC 14757 (KLR)

BM v MGW (Civil Suit 40 of 2015) [2022] KEHC 14757 (KLR) (Family) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14757 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Suit 40 of 2015

MA Odero, J

October 7, 2022

Between

BM

Plaintiff

and

MGW

Defendant

Judgment

1. Before this court is the originating summons dated April 3, 2012 by which the Plaintiff BM seeks the following orders:-'1. That it be declared that 50% of the following property with all buildings and developments thereon which property was acquired by the joint funds and efforts of both Plaintiff and Defendant during their marriage and is registered in their joint names (as is more specifically shown in the annexed affidavit of the Applicant) belong to the Plaintiff. Plot No xxxx (share Certificate No xxxx of xxxx Co Ltd).2. That in the alternative the said property be sold and the net proceeds of the sale be shared between the Plaintiff and the Defendant pro rata.3. That the said property be settled for the benefit of the Applicant in such manner and proportions as this Honourable court deems fit and just.4. That the Defendant himself, his agents and/or servants be restrained from alienating, encumbering or in any other manner disposing of the said property.5. That the Defendant be condemned to pay the costs of this application and the incidentals thereto.'

2. The summons which was brought under section 17 of the Married Womens Property Act 1882 was supported by the Affidavit of even date sworn by the Plaintiff.

3. The Respondent MWG opposed the summons through the Replying Affidavit dated July 4, 2012 in response to which the Plaintiff filed a Further Affidavit dated February 9, 2016.

4. The summons was canvassed by way of viva voce evidence. Each side called only one (1) witness in support of their case.

The Evidence 5. The Plaintiff who relied upon her written statement dated October 3, 2016 told the court that she and the Defendant began to cohabit in the year 1997. That in the year 2008 they got married under Kikuyu Customary Law. Their union was not blessed with any issue although the Plaintiff came into the marriage with a six (6) year old daughter named EW from her previous marriage to one SN who had passed away in June 1996.

6. The Plaintiff stated that she lived with the Defendant as his wife for a period of fifteen (15) years. That in the year 1988 the Plaintiff acquired a Plot being Plot No xxxx (Share certificate No xxxx of xxxx Co Ltd) (hereinafter referred to as the ‘suit Property’) for Kshs 140,000. The Plaintiff states that for the sake of their union she had the suit property registered in their joint names.

7. The Plaintiff avers that between 1998-2007 the couple began to develop the suit property which was the matrimonial home and put up rental units to generate extra income. That she paid for installation of power and water to the property.

8. The Plaintiff also claims that she purchased a motor vehicle Registration xxxx which the Defendant sold without her consent and spent the sale proceeds himself. That she later purchased another motor vehicle Registration No xxxx which the Defendant again sold to his Uncle without her knowledge.

9. The Plaintiff states that major difference arose between the couple and she left the matrimonial home in the year 2011. That she has had to rent alternative accommodation for which she pays Kshs 6,800/- per month, whilst the Defendant continues to reside in the matrimonial home with his new wife. The Plaintiff now prays for a declaration that the suit property belongs solely to her. In the alternative, the Plaintiff seeks orders that the suit property be sold and the net proceeds of sale be shared between herself and the Defendant.

10. As stated earlier the summons was opposed by the Defendant who relied upon his written submissions dated February 24, 2020. The Defendant denies that he was ever married to the Plaintiff. He states that no traditional rites were ever conducted under Kikuyu Customary Law. According to the Defendant, he and the Plaintiff merely cohabited from the year 1996 when the Plaintiff and her six (6) years old daughter moved with him into a single room in Dandora Phase 5. The Defendant insists that the Plaintiff was merely a girlfriend.

11. The Defendant states that he educated the Plaintiffs daughter through primary and secondary school and that he also paid for her University education at Kenyatta University.

12. The Defendant stated that during the course of their relationship the couple managed to acquire several properties including Plot No xxxx, Plot No xxxx and a Plot in xxxx. The Defendant concedes that sometime in the year 1997 the couple jointly purchased Plot No xxxx (the ‘suit property’). He states he singlehandedly financed the development of the suit property without any assistance from the Plaintiff. The Defendant further states that the Plaintiff is currently in possession of four plots one of which is a developed Plot No xxxx to which he lays no claim.

13. The Defendant concedes that the couple purchased two (2) vehicles. He states that the Plaintiff put salt in the engine of motor vehicle Registration No xxxx after a quarrel and states that the Plaintiff took away the motor vehicle Registration No xxxx which she was using to run a taxi business.

14. The Defendant confirms that the couple separated in the year 2011 when the Plaintiff left the matrimonial home carrying away all the household items without his knowledge leaving behind only a mattress. He confirms that he remained in the suit property, where he now resides with his new family. The Defendant confirms that he has now re-married and is blessed with two (2) issues.

15. The Defendant alleges that the Plaintiff has come to court with unclean hands as she intentionally failed to mention the other properties the couple jointly acquired which properties have since been transferred into the Plaintiffs name without his consent. He prays that the suit property be allocated to him as he was solely responsible for its development.

16. Upon close oral evidence parties were invited to file and exchange their written submissions. The Plaintiff did not file any written submissions whilst the Defendant relied upon his written submissions dated June 7, 2022.

Analysis and Determination 17. I have carefully considered this originating summon, the Reply filed by the Defendant, the evidence adduced before the court as well as the written submissions filed by both parties. The following are the issues which arise for determination.(i)Was there a valid marriage existing between the parties.(ii)Does Plot No xxxx constitute Matrimonial property.(iii)What share (if any) of said property is the Plaintiff entitled to.(i)Existence of a Marriage

18. It is common ground that the Plaintiff and the Defendant cohabited as man and wife during the period 1997 to 2011. The couple did not bear any child together but the Plaintiff did come into the relationship with a six (6) year old daughter from a previous marriage. The Plaintiff asserts that she and the Defendant were married having entered into a customary union under Kikuyu Customary Law in the year 2008. She testified that the Defendant visited her rural home with his parents and fulfilled the Kikuyu Customary rites.

19. The Defendant on his part denies that he was ever married to the Plaintiff. The Defendant denies that he fulfilled the Kikuyu Customary marital rites. Whilst the Defendant concedes that he and his family visited the Plaintiffs rural home, he denies that any Kikuyu Customary marriage was conducted. The Defendant claims that the family of the Plaintiff demanded too much as dowry so they left.

20. I have perused the Defendants Replying Affidavit dated July 4, 2012. In that replying Affidavit the Defendant depones as follows:-'2. That the Plaintiff and myself entered into a customary marriage sometimes in 1996. 3.That our marriage had one issue, a daughter, who was taken care of by both the Plaintiff and myself.4. That we lived as man and wife until November 6, 2011 when the Plaintiff without any reason known to me deserted our matrimonial home and took away assorted household goods valued at about Kshs 300,000/-.'

21. Therefore contrary to his denials in court the Defendant in his sworn Affidavit confirmed the fact that he married the Plaintiff under Kikuyu Customary Law. The Defendant is clearly not being truthful in his evidence. He cannot now be allowed to run away from his sworn statement that he married the Plaintiff.

22. Further the Defendant has conceded that the couple cohabited as man and wife from 1996 to 2011 a period of fifteen (15) years. They raised the Plaintiffs daughter together and purchased property. If the Plaintiff was merely a girlfriend the Defendant would not have accepted to raise her daughter as his own. The long period of cohabitation proves that the parties were in a marital union. Accordingly based on the Defendants own admission and the period of cohabitation, I find that a marriage did exist between the parties.

(ii) Matrimonial Property 23. The bone of contention in this suit is the property known as Plot No xxxx. Each party is seeking to have the suit property allocated to themselves. I am mindful of the fact that to date the marriage between the parties has not been dissolved. Neither party has filed a divorce cause seeking to have the marriage between them dissolved. As such, the question of distribution of matrimonial property does not arise. The court at this stage may only make a ‘declaration’ respecting any property found to be matrimonial property.

24. Section 17 of the Matrimonial Properties Act provides as follows:-'(1)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 the person.(2)An application under subsection (1)—(a)Shall be made in accordance with such procedure as may be prescribed;(b)May be made as part of a petition in a matrimonial cause; and(c)May be made notwithstanding that a petition has not been filed under any law relating to matrimonial causes'.

25. Therefore under section 17 a spouse or former spouse may file an application seeking 'declaratory orders' in respect of matrimonial property.

26. In the case ofEWM vs MWM [2020] eKLR a case on all fours with the present case the Court of Appeal in overturning a ruling on a Notice of Preliminary premised on the grounds that the parties had not divorced, stated as follows:-'Section 17 of the Act the court is not limited in respect to the declaration of rights of a spouse’s interest in matrimonial property a plain reading of section 17 enables a spouse, subsistence of a marriage notwithstanding, to made an application for declaratory orders. It further states that an application may be made as part of a petition in a matrimonial cause and notwithstanding that a petition has not been filed under any law relating to a matrimonial causes. It is our opinion that the divorce cause does not prevent a party from bringing an action for declaration of rights to property in the High Court under section 17 of the Act.'

27. Section 6 of the Matrimonial Property Act defines Matrimonial Property as follows:-(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.'

28. Both parties are in agreement that the suit property was the home, which they occupied during the period of their union. The Plaintiff confirms that when she left the marriage she moved out of the suit property where the couple were living.

29. The Defendant has not disputed the fact that following the acquisition of the suit property the couple commenced construction of their family residential home in which they resided for fifteen (15) years. In his replying affidavit, the Defendant at paragraph 7 states that-'7. That I constructed our matrimonial home on the above plot and rental rooms which generate monthly income for the family.'

30. This is an unequivocal confirmation from the Defendant that the suit property was indeed the matrimonial home.

31. Section 6(1) (b) includes in the definition of matrimonial Property 'any immovable property jointly owned and acquired during the subsistence of the marriage.' The suit property was acquired during the subsistence of the marriage and the said property is registered in the joint names of the Plaintiff and the Defendant. Therefore the suit property falls squarely within the definition of Matrimonial Property provided by section 6 (1) (a) and (b) of the Act. I therefore find that the suit property was infact matrimonial property.

(iii) Distribution of the Matrimonial Home 32. This a case where both parties claim to be entitled to the whole share of the matrimonial home. Neither party has produced in court any tangible evidence by way of receipts or otherwise to back their claims. The Plaintiff alleges that she purchased the plot alone and paid a price of Kshs 140,000 but had it registered in the joint names of herself and the Defendant for the sake of the marriage. However, the Plaintiff has not tendered any evidence by way of a sale Agreement or receipt to prove that she paid an amount of Kshs 140,000 for the property.

33. On the other hand the Defendant claims to be entitled to the entire suit property on the basis that he singlehandedly developed the property and constructed the matrimonial home as well as rental units on the land. The Defendant has annexed some payment receipts as evidence that he alone financed the purchase construction materials of the suit property. However, the annexed receipts are issued to both the Defendant and BM who is the Plaintiff proving that they both made financial contribution towards the purchase of building materials.

34. The fact of the matter is that the suit property is registered in the joint names of the Plaintiff and the Defendant. The plot allocation Certificate Serial No 0639, which is dated August 28, 1985 is annexed to the Originating Summons dated April 3, 2012. That ownership document clearly names the Defendant MWG and the Plaintiff BM as the registered owners of Plot No xxxx.

35. Likewise the lease document in respect of the suit property which is annexed to the Defendants list of Documents indicates that the lease was issued to both MWG and BM as tenants in common in equal shares.

36. Article 45(3) of theConstitution of Kenya 2010 provides that-'Parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of the marriage.'

37. Section 14 of the Matrimonial Property Act sets out two rebuttable presumptions in regard to property acquired during marriage as follows:-'14. Presumptions as to property acquired during marriage 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.'

38. In the case of MGNK – vs – AMG [2016] eKLR the Court in interpreting Section 14 of the Matrimonial Property Act held as follows:-'When matrimonial property is registered in the joint names of the parties, there is normally a presumption that each party made equal contribution towards its acquisition. The presumption however is rebuttable.'

39. The suit property is registered in the joint names of the Plaintiff and the Defendant. In Paragraph (6) of his Replying Affidavit dated July 4, 2012, the Defendant concedes'That sometimes in February 1997 we acquired Plot No xxxx (Share Certificate No xxxx Co Ltd) for Kshs 140,000 which we had registered in our joint names'40 Further in his written statement the Defendant admits that the suit property was acquired jointly and that both parties contributed toward its purchase.

41. The Defendant has not rebutted the legal presumption that the parties are entitled to an equal share of the suit properties. Similarly, the Plaintiff has not adduced any evidence to satisfy this court that the suit property ought to vest entirely to her.

42. The Defendants arguments that the Plaintiff owns two other properties cannot be used as a basis to deny her equal share of the suit property. In any event, the Plaintiff told the court that the two properties in Joska belonged to her late husband.

43. The Defendant claims that he singlehandedly constructed the matrimonial home as well as the rental units and as such is entitled to a greater percentage share in the same. He submits that the Plaintiff made no contribution towards the construction and development of the suit property.

44. Contribution by a spouse for purposes of sharing matrimonial property may be monetary or non-monetary or both. According to section 2 of the Matrimonial Property Act;'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; and(e)Farm work;(own emphasis)

45. Therefore due consideration must be given in law to both monetary and non-monetary contribution. The parties herein were cohabitating as a married couple. I have no doubt that the Plaintiff played a contributory role by way of domestic role and supervision of the home to enable the Defendant concentrate his finances on construction.

46. In Civil Appeal No 142 of 2018 in CWM vs JPM [2017] eKLR, the Court of Appeal held as follows:-'Parties are of equal worth and human dignity, whatever their station in life. To the issue before us, it is obvious the appellant having been married for 18 years made some contribution to the family of the respondent at the time of such coverture. In our view, that contribution, be it domestic work and management of the matrimonial home, child care; or companionship falls within the definition of contribution under the Act.'

47. I find that the suit property having been acquired during the subsistence of the marriage between the parties and having been registered in the joint names of the parties belongs to the two equally. Accordingly, I find that the Plaintiff is entitled to a 50% (fifty percent) share of the suit property.

48. Finally, I allow the originating summons and make the following orders:-(1)A declaration be and is hereby issued that the Plaintiff is entitled to a 50% (fifty percent) share of the property known as Plot No xxxx (share Certificate No XXXX of xxxx Co Ltd) together with all the buildings and developments thereon.(2)The Defendant by himself his agents and/or servants be and is hereby restrained from alienating encumbering or in any other manner whatsoever disposing of the said properties without the consent and involvement of the Plaintiff.(3)Each party to pay its own costs for this summons.

DATED IN NAIROBI THIS 7TH DAY OF OCTOBER, 2022. ............................MAUREEN A. ODEROJUDGE