[2022] KEHC 12023 (KLR)

BSA v MAQ (Matrimonial Cause 50 of 2018) [2022] KEHC 12023 (KLR) (Family) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 12023 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Matrimonial Cause 50 of 2018

AO Muchelule, J

May 12, 2022

Between

BSA

Applicant

and

MAQ

Respondent

Judgment

1. The applicant BSA and the respondent MAQ got married under Islamic law on December 16, 2002 in Kenya but subsequently migrated to the United Kingdom, where the respondent works. They remained married for 12 years before they divorced. The marriage was blessed with two children: KA and BMA There is a child WM whom the applicant came with into the marriage. The respondent took her in as one of his children.

2. Following the divorce, the parties entered into what they called “marital settlement agreement” dated October 7, 2014. According to paragraph 4 of theagreement, the parties intended –“to voluntarily and equitably settle all of the issues between them, including all parenting arrangements, child and spousal support, property division.”It was agreed that the parties would secure the best interests of the children. The applicant would have the primary physical custody of the children and that the respondent would have visitation and parenting rights.

3. The couple had in the course of the marriage jointly acquired:-a.LR No xxxx IR No xxxx Diamond Park Estate in South B in Nairobi that was four bed roomed house and had rental income of Kshs 50,000/= per month;b.Plot No Nairobi/Block Tassia xxxx Nairobi that comprised 2 shops and 9 flats and whose monthly rent was Kshs 117,000/=; andc.A joint account No xxxx at Gulf African Bank Ltd, Kenyatta Avenue into which the parties agreed to have the rental income from the two properties deposited into monthly.There is no dispute that the parties were jointly registered in respect of property (a) and (b).

4. The parties agreed that the two properties would be co-owned by the three children, and that they (parties) would hold the properties in trust for the children. The respondent agreed to pay weekly maintenance of UK 50 pounds for the children.

5. Paragraph 5 of the agreement provided for arbitration in the event of a dispute. It provided as follows:-“Any dispute difference or questions which may arise at any time between the parties touching upon construction of this Agreement or on the rights and liabilities of the parties with respect thereto shall be referred to the decision of a single arbitrator to be agreed upon between the parties or in default or agreement within fourteen (14) days to be appointed at the request of any party by the Chairman for the time being of the Kenya Branch of the Chartered Institute of Arbitrators or the Vice Chairman if the Chairman is unable or disqualified to act for any reason.Such arbitration shall be conducted in Nairobi, in accordance with and subject to the provisions of the Arbitration Act,1995 or any statutory modification or re-enactment thereof for the time being in force.The decisions of the arbitrator shall be final and binding upon the parties to the fullest extent permissible by law.”

6. The present dispute is contained in the originating summons filed on July 19, 2018by the applicant which she sought the following prayers:-“1. That a declaration do issue that all the under listed properties and bank account registered in the joint names of the applicant and the respondent and or held beneficially and in trust for the applicant and her children:-a.Maisonette No xxxx on LR No xxxx- Diamond Park Estate Nairobi;b.Plot No Nairobi/Block Tassia-xxxx, Nairobi; andc.Bank Account No xxxx at Gulf African Bank Ltd, Kenyatta Avenue Branch for rent deposit in which the rental income from the two properties (a) and (b) above are deposited.2. That an order do issue declaring that the respondent is accountable to the applicant in respect of all the rental income derived from the above stated properties.3. That this Honourable Court be pleased to order that the properties and the income aforesaid be divided in the ratio of 80% to the applicant and her three (3) children and 20% to the respondent respectively or such proportions as the court may deem fit.4. That costs of the summons be provided for.”

7. According to the applicant, the two properties were jointly acquired in the course of the marriage and were therefore matrimonial property; and that she was apprehensive that the respondent would dispose of or and waste the same in a manner that was prejudicial to her and the children. These were the reasons why she had sought the above orders.

8. The respondent swore a replying affidavit in response. He denied that he wanted to dispose of the property in question. He stated that he does not have the title documents to the property and wondered how he would transfer them. He denied that he was obliged to account for the rental income from the properties, stating that the income was being collected by Shariff Hussein whom the parties had agreed on as an agent for that purpose. Therefore, Shariff was the one obliged to account for the rent. He complained that Shariff had not accounted for all the rent, and blamed the applicant for this. He complained that the agreement signed on October 7, 2014 was drafted by their then advocate Hassan Lakicha who did not explain the contents of the same to him, and which agreement he had not read or understand owing to his how level of literacy. His case was that the agreement was unconscionable and had been frustrated, and therefore was no longer binding on the parties. Further, he stated that the applicant had denied him access to the children and had gone ahead to file a case in the UK which had resulted in him being asked to pay more maintenance for the children.

9. In paragraph 15 of the replying affidavit, the respondent deponed as follows:-“15. Thatin furtherance of the above objectives and in spirit of equity, fairness to first the parties themselves and to the children of our marriage, I do propose the resolution of the matter as follows:-a.the applicant and myself to be registered singly as proprietors of any one of the two suit properties absolutely;b.the applicant to be given the first priority choose the property she wants registered in her name;c.the rental proceeds from the suit properties to be strictly applied towards purchase of property/apartments to be registered and held in trust for the three minors until they all reach the age of majority. The rental income from the property/apartment to be deposited in a separate trust account strictly to take care of the interest and welfare of the minors.”

10. The respondent asked that the suit be dismissed with costs.

11. Shariff swore an affidavit to state that he had been appointed by both parties to be collecting rent and remitting it into the joint account, a task that he had religiously undertaken. He denied that any funds had not been accounted for.

12. The suit was filed through Hassan N Lakicha Advocates but there was change of advocates to Lesinko, Njoroge & Gathogo Advocates. The respondent was represented by Ali & Co Advocates. Each counsel each filed written submissions. I have read and considered them.

13. Although, regarding the issue of jurisdiction, no party sought to rely on the arbitration clause in the agreement, I wish to point out that the respondent entered appearance and filed a response to the originating summons. That meant that he did not wish to rely on the arbitration clause, and therefore the court assumed jurisdiction over the dispute between the parties (Charles Njogu Lofty v Bedouin Enterprises Ltd [2005]eKLR).

14. It is also evident that, although the respondent made prayers in paragraph 15 of the replying affidavit, there was no conterclaim filed by him. The only claim that should legitimately be determined is the one contained in the originating summons by the applicant.

15. The parties agree that, in the course of their marriage, they jointly acquired massionette No xxxx on LR No xxxx – Diamond Park Estate Nairobi and Plot No Nairobi/Block Tassia – xxxx Nairobi, each of them being registered in their joint names. Each property has rental income which is saved in their joint accounts No xxxx at Gulf African Bank, Kenyatta Avenue Branch. Under section 14 of the Matrimonial Property Act,2013 –“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.”It is clear to me that either party had an equal claim to each property.

16. Both in the replying affidavit and in the written submissions by the respondent, it was conceded that either party has an equal claim to the two properties that were jointly registered in their names. The parties entered into the marital settlement agreement in which they agreed that the two properties shall be held by them in trust for the three children. The agreement was signed on October 7, 2014 by the parties whose witnesses also signed. The respondent cannot seek to resile from this agreement on the basis that he was either not very literate or that it was not explained to him. He did not file a counterclaim seeking to be released from theagreement. He stated that at the time of the agreement they had a common advocate, Mr Hassan Laikicha. The present suit was filed about four years later. All this while he was carrying a copy of the agreement. He did not complain about it during that time. Secondly, the Agreement states that it was the result of comprehensive and deliberate mediation process between the parties and the elders who eventually witnessed it. The respondent is quiet about this.

17. It is evident that even the applicant is by the originating summons seeking to resile from the agreement. She is the one who annexed the agreement to the originating summons meaning she sought to rely on it. But in her prayer 3 in the summons, she sought as follows:-“3. Thatthis honourable court be pleased to order that the properties and the income aforesaid be divided in the ratio of 80% to the applicant and her three (3) children and 20% to the respondent respectively or such proportions as the court may deem fit.”She is equally bound by the agreement which she signed and produced to the court.

18. The rental income from the properties is being kept in the joint account opened by the parties. It is Shariff whom they appointed to be collecting rent and depositing here. He manages the two properties subjects the rental income to audit. I find no evidence that he has adversely dealt with the rental income. The respondent has no role in the collection of the rent or its banking, and therefore cannot be called upon to account to the applicant for the rent.

19. Because the agreement stated that the rental income goes into the joint account, and there was no provision that either party can access it, I take it that the income was being kept in trust for the children, and find so.

20. Under the Act, and by the parties own pleadings, the two properties were matrimonial property to which either party had an equal claim and share. However, by their own marital settlement agreement,each signed away her/his claim when it was agreed that they hold each property in trust for their children. They are each bound by that agreement.

21. The result is that I declare that Maisonette No xxxx on LR No xxxx (IR No xxxx), Diamond Park Estate Nairobi and Plot No Nairobi/Block Tassia – xxxx, Nairobi are registered in the joint names of the applicant BSA and the respondent MAQ in trust for their three children KA, BMA and WM Further, the rental income collected from the two properties and deposited into the parties joint account No xxxx at Gulf African Bank Ltd, Kenyatta Avenue is held in trust for the use of the three children.

22. Either party shall pay own costs.

DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF MAY 2022A.O. MUCHELULEJUDGE