[2022] KEHC 12495 (KLR)

CKS v JSS & another (Matrimonial Cause 1 of 2019) [2022] KEHC 12495 (KLR) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12495 (KLR)

Republic of Kenya

In the High Court at Kakamega

Matrimonial Cause 1 of 2019

WM Musyoka, J

July 8, 2022

Between

CKS

Petitioner

and

JSS

1st Respondent

SOL

2nd Respondent

Judgment

1. The suit herein was initiated by way of an Originating Summons, dated 12th December 2019, seeking a variety of orders relating to matrimonial property, and in particular Isukha/Shirere/xxxx, Kakamega Town/Block xxxx and Isukha/Shitoto/xxxx.

2. The orders sought are: -1. That the plaintiff, having been and still being lawfully married to the defendant herein, is entitled to and/or obliged to benefit from the Matrimonial Property, which was acquired and/or accumulated by the plaintiff and the defendant respectively during the joint coverture and/or period of marriage.2. That in the event of dissolution of the marriage between the plaintiff and the defendant, the plaintiff should be entitled to half share of the property acquired during the subsistence of the marriage and/or joint coverture.3. That the defendant herein holds LR. Isukha/Shirere/xxxx , Isukha/Shitoto/ , LR Kakamega/Town Block II and any other Matrimonial Property to be declared by the Plaintiff, on trust for the plaintiff and that an order should issue restraining the transfer and registration of any dealings in respect of that property without the consent of the plaintiff.4. That the plaintiff is entitled to live in and enjoy quite possession of her matrimonial house built on LR Isukha/Shirere/xxxx to the exclusion of the 1st defendant’s second wife who has not in any way contributed to the purchase, development or construction of the said house and/or land.5. That an order directed at the 1st defendant compelling him to grant the plaintiff unrestricted access and enjoyment of quite possession of her matrimonial house built on LR. Isukha/Shirere/xxxx .6. That a permanent injunction restraining the defendant either by himself, agents, representatives, servants and/or employees or any other person claiming through him from interfering with, trespassing onto and/or restricting the plaintiff’s rights, occupation and/or interests over her matrimonial house built on LR Isukha/Shirere/xxxx.7. That Kakamega Town/Block II/xxxx being Matrimonial Property, the same ought to not have been sold/transferred by the 1st defendant to the 2nd defendant without the consent of the plaintiff.8. That the plaintiff is entitled to rental income from LR Kakamega/Town Block II/xxxx on the basis that the same is Matrimonial Property acquired during the subsistence of the marriage between the plaintiff and 1st defendant.9. That an order be issued nullifying the sale of LR Kakamega/Town Block II/xxxx , by the 1st defendant to the 2nd defendant on the basis that the same was undertaken without the consent of the plaintiff10. That a permanent injunction restraining the defendant either by himself, agents, representatives, servants and/or employees or any other person claiming through him from interfering with, trespassing onto and/or restricting the plaintiff’s rights, occupation and/or interests over her house No. 4 built on LR Kakamega/Town Block II/xxxx .11. In the alternative to (9) above, an order directed at the 1st defendant compelling him to compensate the plaintiff at half of the current market value of LR Kakamega/Town Block II/xxxx the Matrimonial Property, which has been sold, disposed of and/or transferred by the 1st defendant to the 2nd defendant without the consent and/or participation of the plaintiff.12. Costs of the Originating summons be borne by the 1st defendant.13. Any other orders that the court may deem fir and expedient to grant.

3. In her supporting affidavit, sworn on 12th February 2019, the plaintiff avers to be the wife of the 1st defendant, they got married in 2003, and hold a certificate of marriage serial xxxx. They got three children, VMS, IOS and PIS. She avers that as a family they owned various matrimonial properties registered in the name of the family members who hold them in trust for the family. She avers to have contributed to the acquisition of such assets. She avers that she and 1st defendant acquired LR Kakamega/Town Block II/xxxx in a year which is not disclosed, which was registered in his name. The same was developed by way of putting up flats or apartments, by the joint efforts to both of them. She avers that sometime in December 2018, the 1st defendant sold Kakamega/Town Block II to the 2nd defendant. She asserts that she did not consent to the said sale.

4. Attached to her affidavit is a certificate of marriage, Serial No. xxxx, evidencing celebration of the marriage of the plaintiff and the 1st defendant on 6th December 2003. A certificate of official search for Isukha/Shirere/xxxx , showing that the same was registered on 4th October 2007 in the name of National Oil Corporation of Kenya Ltd. An official search for Isukha/Shirere/xxxx showing that it is registered in the name of the 1st defendant since 15th June 2014 and was charged to Kenya Commercial Bank Ltd. A certificate of official search for Kakamega/Town Block II/xxxx , showing that it was registered to the 2nd defendant on 11th October 2018. A letter dated 12th May 2018, on the letter head of [Particulars Withheld] Investments, talking about transfer of tenancy, following the sale of Kakamega/Town Block II to the 2nd defendant. There are copies of birth certificates for the three children of the plaintiff and the 1st defendant.

5. The Originating Summons was filed simultaneously with a Motion, dated 12th February 2019, where the plaintiff sought injunctive orders, to restrain the defendants from interfering with her rights over Kakamega/Town Block II/xxxx . These affidavits were filed, purported to be in support, but it is not clear whether they support the Motion or the Originating Summons. The Motion was heard, and Njagi J granted orders, on 25th April 2019, to restrain the 2nd defendant from parting with Kakamega/Town Block II/xxxx pending hearing and determination of the suit, and to command the 1st defendant to keep paying rent for the rooms occupied by the plaintiff in the Kakamega/Town Block II , again, pending hearing and determination of the suit.

6. The 1st defendant responded to the Originating Summons, through his affidavit of 25th February 2019. He avers that he started staying with the plaintiff in 1996 as husband and wife, and they formalized the marriage in 2003 in church. He avers that he was no longer cohabiting with the plaintiff as husband and wife, since 2008, owing to differences that arose when the plaintiff began to use the court process to defraud him of his property. He cited a children’s court case filed at Eldoret. He says that the plaintiff moved out of the matrimonial home after that, and since then the relationship has been acrimonious. He avers that the plaintiff was unemployed with no source of income when he married her, and she was a housewife, and could not contribute to acquisition of property, he further avers that his children with the plaintiff too were also unemployed, and could not contribute to acquisition of property. He states that when the plaintiff fell into destitution in 2017, as mother of his children, he approached her and gave her a house to stay in within Kakamega/Town Block II/xxxx . He avers that that property was charged as security with a bank, he had problems repaying the loan, and he sold it, repaid the money, and purchased another property with the balance, which he put up a house for the plaintiff. He asserts that he plaintiff stays on Kakamega/Town Block II/xxxx as a tenant for the 2nd defendant. He avers that the plaintiff abandoned him. He married another wife. He avers that the parties have not divorced. He avers that Isukha/Shirere/xxxx was not matrimonial home. He says that they bore their children while living within Kakamega/Town Block II/xxxx , but their ancestral home was at Khwisero, where the plaintiff has a house. He asserts that the plaintiff has not contributed to his business. He avers that Kakamega/Town Block II now belongs to the 2nd defendant, and it was no longer matrimonial property. He has attached an order made in the Eldoret Children’s case.

7. The 2nd respondent responded to the Originating Summons vide an affidavit, sworn on 27th February 2019. He avers to have bought Kakamega/Town Block II/xxxx on 26th April 2018, and at that time it was charged to CFC Stanbic Bank. The 1st defendant had defaulted in his obligations to the bank, and the property was due for sale by the bank. He avers that the 1st defendant had acquired the property long before he married the plaintiff, and, therefore, the property was not matrimonial. He avers that he had information that the plaintiff had given consent for the property to be charged. He avers that upon the property being charged and sold to him, it ceased to be matrimonial property. He asserts that he paid part of the purchase price directly to the bank to offset the loan, and upon the completion of the loan, the bank discharged the property and the same was registered in his name.

8. He has attached to his affidavit copies of several documents to support his case. There is a sale agreement for Kakamega/Town Block II/xxxx dated 26th April 2018, for a sum of Kshs. 22,000,000. 00. There is a green card for Kakamega/Town Block II , showing charges were registered against the title in 2003 and 2010, and was transferred to the 2nd defendant on 11th October 2018. The change was discharged on 9th September 2010 and another change was registered on the property for Kshs.25,000,000. 00 on 30th September 2018. All the charges were discharged on 29th August 2018 and 21st September 2018. There is a letter dated 2nd August 2016 to Jupiter Oil Ltd from CFC Stanbic Bank warning the company that if outstanding arrears of monthly instalments were not settled, the bank would institute recovery measures. There is a 30-day demand note from the bank dated 10th March, 2017, but which relates to Isukha/Shirere/103 and not Kakamega/Town Block II/xxxx. There is a bank funds transfer form dated 11th July 2018 evidencing part payment of the purchase price by the 2nd defendant. There is a discharge dated 29th August 2018 of Kakamega/Town Block II/xxxx. There is a certificate of lease of Kakamega/Town Block II/xxxx, dated 12th October 2018, registered in the name of 2nd defendant.

9. The application was disposed of orally. The plaintiff testified on 20th January 2021, and breathed life to the averments made in her Originating Summons and the affidavit sworn in support of it. She called her two children, VMS and IOS as her witnesses. The 1st defendant testified on 27th May 2021. He breathed life to the averments made in his replying affidavit. The 2nd defendant testified on 28th September 2021 and breathed life to his replying affidavit to the Originating summons.

10. The 2nd defendant called one witness, Daniel Masira Kimauru, a deputy Land Registrar. He testified that the charges on LR Kakamega/Town Block II/xxxx where discharged in 2018. He stated that in the parcel file there was a consent, executed on 26th April 2018, by CKS of P.O. Box xxxx Kakamega, to the sale and transfer of Kakamega/Town Block II/xxxx, to the 2nd defendant. He said that he was not aware that that spousal consent was false. He said he was with one in charge of the lands registry at the time. He stated that the transaction was handled by a Land Registrar know as Monica Bor. He said he could only testify on what was on record. He said he got summons to come to court on Kakamega/Town Block II/xxxx, and that he did not know that it was about the consent, he just came with the entire file. He said that he could not tell whether the signature in the spousal consent was not that of the plaintiff. He said that the spousal consent was in the parcel file when he was summoned. He said land registrars had no role in the preparation of spousal consents. He said that he was not summoned to come and produce the spousal consent, and that was why he carried the entire file which included the spousal consent.

11. At the close of the oral hearings, the parties filed written submissions, which I have read and noted the arguments made.

12. The originating summons is principally about Kakamega/Town Block II/xxxx. It refers to other assets in the prayers, such as Isukha/Shirere/xxxx, and Isukha/Shirere/xxxx, but those other assets are not mentioned in the supporting affidavit sworn on 12th February 2019 nor in the verifying affidavit of even date. There is a bundle of eight documents, the first one is marked CKS-01 and the rest CKS and executed by the commissioner for oaths on 11th February 2019. These appear to be attached to the verifying affidavit, yet the verifying affidavit makes no reference to any annextures. The supporting affidavit does refer to only one annexture, the marriage certificate, which is marked CKS-01. However, CKS-01 is not attached to the supporting affidavit. It is not clear to me what the verifying affidavit verifies, for it refers to a plaint, and not the Originating Summons. There is no plaint on record. It is no clear what the supporting affidavit supports, for it refers neither to the Originating summons nor to the Motion. The two affidavits were commissioned on 12th February 2019 but the alleged annextures were signed by the commissioner for oaths on 11th February 2019. What I am saying is that the originating summons is poorly conceived and badly drafted. The principal pleadings in proceedings commenced by Originating Summons is a combination of the Originating Summons and the affidavit verifying it. The Originating Summons carries the prayers and the grounds, while the affidavits carries the facts and gives the evidential background to the matter. So, the failure to mention the other assets in the affidavit would mean that those other assets are not before the court. The documents alleged to be annextures to the affidavit are not annexed at all, to the extent that the affidavits make no reference to them. I shall take it that only the marriage certificate is properly annexed. The Originating Summons, like all other applications, be they motions or chamber summons, only carries the prayers and general grounds, and the foundation for the case is set out in the affidavit in support. As the affidavit in support in this case only talks about Kakamega Town/Block II/xxxx, I shall confine myself to making determinations on Kakamega Town/Block II/xxxx. Parties are bound by their pleadings.

13. Secondly, the plaintiff and the 1st defendant are still in matrimony, for the marriage between them is yet to be dissolved. Under the Matrimonial Property Act, No. 49 of 2013, the court divides matrimonial property only upon dissolution of the marriage or divorce. The policy behind this is said to be to preserve the marital union, and. for stability to prevail, a court ought not divide matrimonial property while the parties are still in coverture. I believe the court can only make declarations of rights, in the circumstances, but not divide the property. The relevant provisions in the Matrimonial Property Act, that is sections 7 and 9 states as follows: -“7. Ownership of matrimonial propertySubject 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.

9. Acquisition of interest in property by contribution.Where one spouse acquires property before or during the marriage and the property acquired during the marriage does not become matrimonial property, but the other spouse makes a contribution towards the improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made.”

14. The Constitution of Kenya, 2010 recognizes the centrality and importance of the family unit as the basis for social order and stability, hence it makes provisions for its recognition and protection at Article 45, which states as follows; -“(1).The family is the natural and fundamental unit of society and the necessary basis is social order, and shall enjoy the recognition and protection of the state.(2)every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.(3)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(4)Parliament shall enact legislation that recognizes(i)marriages concluded under any tradition, or system of religious, personal or family law; and(ii)any system of personal and family law under any tradition, or adhered to by person’s profession a particular religion.To the extent that any such marriages or systems of law are consistent with the Constitution.”

15. Article 45(3) is of crucial importance to the dispute herein, with respect to the rights of the parties during and after dissolution of marriage. It provides for equality or equal rights. The Matrimonial Property Act appears to depart from the equality principle, at section 7, by introducing the element of contribution. There is still a huge divide on whether what is adjudged to matrimonial property should be divided equally according to the principle in Article 45(3) of the Constitution, or whether it should be subjected to contribution under Section 7 of the Matrimonial Property Act. I believe the principle in Article 45(3) of the Constitution should override what stated in section 7 of the Matrimonial Property Act.

16. From the material on record, Kakamega Town/Block II/xxxx was acquired when the plaintiff and the 1st defendant were in matrimony. That marriage, as noted above, is still subsisting. They set up a home there, although the property is leasehold. They were in business together. The property was developed in the course of doing business together, although the 1st defendant, in one breath said they did business together, and in another said the plaintiff was a house wife. There are all hallmarks of a matrimonial property in Kakamega Town/Block II/xxxx. Is it still matrimonial Property? Both sides concede that it was sold to the 2nd defendant. There is evidence that the same was transferred to the name of the 2nd defendant, and there is a certificate of lease on record, dated 12th October 2018, bearing the name of the 2nd defendant as the lease holder. That being the case, Kakamega Town/Block II/xxxx does not qualify to be matrimonial property.

17. The plaintiff does recognize that fact, and it is on that basis that she invites the court to invalidate the said sale so as to restore the property, to the family, that is to say make it matrimonial property once more. I doubt whether the High Court has jurisdiction to invalidate processes that are undertaken under the Land Registration Act, No. 3 of 2012, land the land Act, No. 6 of 2012. Spousal consent is a concept in the land legislation, and not in the Matrimonial Property Act. The plaintiff has cited section 93(3) (4) I believe of the Land Registration Act, on that. The High Court has jurisdiction to divide matrimonial property under the Matrimonial Property Act, but it has no jurisdiction to deal with issues provided for under the Land Registration Act. The jurisdiction over such issues is conferred on the Environment and Land Court by Article 162(2) of the Constitution and section 2 and 101 of the Land Registration Act. section 2 and 150 of the Land Act is also relevant. Article 165(5) of the Constitution goes on to declare, emphatically, that the High Court shall exercise no jurisdiction whatsoever over the matters that fall under the jurisdiction of the courts envisaged under Article 162(2) of the Constitution. Clearly, therefore, I, sitting as a judge of the High Court, have no jurisdiction to determine whether the said sale of Kakamega Town/ Block II/xxxx, and its transfer and registration to the 2nd respondent, was valid, and to invalidate it. That jurisdiction sits with the Environment and Land Court.

18. For avoidance of doubt, Articles 162(2) and 165(5) of the Constitution; sections 2 and 101 of the Land Registration Act and sections 2 and 150 of the Land Act state as follows:“162(2)Parliament shall establish courts with the status of the High Court to hear and determine disputes relating toa.employment and labour relations; andb.the environment and the use and occupation of, and title to, land.

“165(5)The High Court shall not have jurisdiction in respect of mattera.reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; orb.falling within the jurisdiction of the courts contemplated in article 162(2)“2 “Court” means the Environment and Land Court established under the Environment and Land Court Act, 2011, (No. 19 of 2011)“101 Jurisdiction of the court. The Environment and Land CourtThe environment and Land Court established within the Environment and Land Court Act, 2011, (No. 19 of 2011) and the subordinate courts have jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act”“2 “Court” means the Environment and land court established under the Environment and Land Court Act, 2011, (No. 19 of 2011)”“150. Jurisdiction of the environment and land courtThe environment and Land Court established in the Environment and Land Court Actand the subordinate courts as empowered by any written law shall have jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act”

19. I reiterate that spousal consents, to sales and other land transactions, transfers of land and registration of land are governed by land registration, and in particular the Land Registration Act. By dint of the Constitution and the Land Registration Act, the High Court has no jurisdiction to handle disputes that arise over such issues. The mandate of the High Court is stated in the Matrimonial Property Act, and it is limited to making orders on how matrimonial property is to be shared. Anything beyond sharing of such property should be placed before the court with jurisdiction.

20. Secondly, and without prejudice to what I have discussed above, is the matter of whether or not there was spousal consent to the disputed transaction. The plaintiff asserts that there was no consent or she did not consent to the transaction. The defendants assert that she did. The 2nd defendant called the Deputy Land Registrar for Kakamega County, one David Masira Kimauru, who came to court with the parcel file for Kakamega Town/Block II/xxxx. He testified that that file contained a spousal consent, dated 26th April 2018, duly executed by the plaintiff, consenting to the sale and transfer of Kakamega Town/Block II/xxxx to the 2nd defendant. He identified the signatures of the land registrar who had handled the transaction, and stated the he was unaware that the said spousal consent was cooked or fake. The public officer bespoke the contents of the file he had. It had the consent in question. Am not persuaded that the plaintiff was able to shake him on cross-examination. Whether a document is fake or forged is a matter of evidence. The usual way to deal with such allegations is to have the signature on the contested document subjected to forensics by a handwriting or document examiner, it cannot be impeached otherwise. The plaintiff did not subject the document to forensic examination, and I, therefore, have no basis to assess or determine whether or not the spousal consent in possession of the lands registry was fake or false or not. The burden shifted on the plaintiff, once the consent was presented, to prove that the signature on it was not hers. She did not do so, and I find that there was a valid spousal consent by her to the said sale and transfer of the land.

22. In view of what I have stated above, I shall proceed to answer the questions raised in the originating summons.1. To question number (1), I declare that the plaintiff, having been and still being lawfully married to the 1st defendant herein, is entitled to benefit from the matrimonial property acquired or accumulated jointly by the plaintiff and the 1st defendant during coverture or period of the marriage;2. To question number (2), I declare that, in the event of dissolution of the marriage between the plaintiff and the 1st defendant, the plaintiff shall be entitled to half share of the property jointly acquired during the subsistence of the marriage or during coverture by them;3. To question number (3), I decline to declare that Kakamega Town/Block II/xxxx is held in trust for the plaintiff by the1st defendant since the same was sold to the 2nd defendant and was registered in his name on 11th October 2018 and it had thereby ceased to be matrimonial property and I decline to issue the injunctive orders sought;4. To question number (4), I decline to make any declaration on Isukha/Shirere/xxxx as no factual background was set out on the affidavits sworn by the plaintiff in support of the case;5. To question number (5), I decline to make the order to sought relating to Isukha/Shirere/xxxx as no factual background was set out in the affidavits sworn by the plaintiff in support of the case6. To question number (6), I decline to make the order sought relating to Isukha/Shirere/xxxx as no factual background was set out in the affidavits sworn by the plaintiff in support of the case7. To question number (7), I decline to make the declaration sought, on grounds of lack of jurisdiction, to deal with issues relating to title to property, but I take note of the spousal consent held in the records of the lands registry, dated 26th April 2018;8. To question number (8), I declare to make the declaration sought, on grounds of lack of jurisdiction, to deal with issues relating to title to property and its use and occupation, in view of the sale and transfer of Kakamega Town/Block II/xxxx to the 2nd defendant;9. To question number (9), I decline to make the order sought, on grounds of lack of jurisdiction to determine the question of title to property and to sale and transfers of land;10. To question number (10), I declare to make the order sought, on grounds of lack of jurisdiction to deal with issues relating to title to property and to its use and occupation, in view of the sale and transfer of Kakamega Town/Block II/xxxx to the 2nd defendant;11. To question number (11), I find that the plaintiff was entitled to half share of Kakamega Town/Block II/xxxx before it was sold, and, upon its sale, she is entitled to half of the proceeds of sale, after discounting the amount that was paid to the bank to clear the outstanding loan or loans for which the property had been charged, and I order the 1st defendant to pay the said half share to the plaintiff;12. To question number (12), this being a family matter, each party shall bear their own costs; and13. To question number (13), I make no other or further orders.It is so ordered

JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 8thDAY OF JULY 2022W M MUSYOKAJUDGE