[2022] KEHC 12175 (KLR)

DKJ v EA & another (Divorce Cause 2 of 2017) [2022] KEHC 12175 (KLR) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12175 (KLR)

Republic of Kenya

In the High Court at Kakamega

Divorce Cause 2 of 2017

WM Musyoka, J

July 8, 2022

Between

DKJ

Petitioner

and

EA

1st Respondent

BMCI

2nd Respondent

Judgment

1. These are matrimonial proceedings for dissolution of a marriage and distribution of matrimonial property.

2. According to the petition, the petitioner and the respondent started their marital journey through cohabitation in 2006, at Chavakali, which graduated to a customary law in marriage 2007 when the 1st respondent paid dowry. The union was not blessed with children, which brought strains to the marital relationship. The petitioner avers that as a result, the 1st respondent began an adulterous relationship with the 2nd respondent which in culminated in the birth of a child. It is averred that that adulterous relationship exposed the petitioner to anguish as the 1st respondent exhibited extreme enmity cruelty and neglect, particulars of which are set out in the petition. The petitioner avers that she contributed to acquisition of various assets, during coverture which include motor vehicle registration mark and number KCC xxxV, which is registered in the name of 1st respondent, but in her exclusive use and South Wanga/EKero/xxxx. She avers to have had taken out loans and ploughed money into the acquisition of the said assets. She avers that the relationship was beyond salvage. She seeks dissolution of the marriage, declaration that KCC xxxV and South Wanga/Ekero/xxxx are matrimonial properties and an order that the two assets be given to her exclusively both as share and in lien of maintenance.

3. The respondents filed a joint answer and cross-petition, dated January 30, 2018. It is averred that the relationship and the subsequent marriage between them was with the full consultation, knowledge and consent of the petitioner due to the circumstances prevailing on the marriage. The allegations of cruelty and adultery are denied. It is alleged that the petitioner spurned efforts to reconcile, and did not honour her marital obligations to the 1st respondent. It is denied that the 1st respondent moved out of the matrimonial home at Chavakali to live with the 2nd respondent elsewhere. Instead, it is averred that it was the petitioner who packed out of the Chavakali matrimonial home and moved all the matrimonial property to Sirare, and thereby deserted that 1st respondent. It is denied that the petitioner contributed to the acquisition of KCC xxxV and South Wanga/Ekero/xxxx. It is averred that South Wanga/Ekero/xxxx was acquired for the purpose of settling the 2nd respondent, and was developed by the respondent as the matrimonial home for the 2nd respondent to the exclusion of the petitioner. It is averred that the marriage between the petitioner and he 1st respondent had broken down irretrievably and was beyond salvage. The petitioner is accused of committing adultery with several men, and that the 1st respondent found it impossible to live with her. She is also accused of desertion, by moving out of the matrimonial home with all the matrimonial property and of vowing never to come back. She is further accused of cohabiting with other persons since then. The petitioner is also accused of cruelty, by way of exhibiting ungovernable temper, and use of foul and abusive language towards the 1st respondent. The respondent would the marriage dissolved, and the petitioner ordered to handover KCC xxxV.

4. The petitioner testified on February 18, 2020 and breathed life to the averments made to support her case. The 1st respondent testified on January 26, 2021 and breathed life at the averments made in his pleadings and produced exhibits to support his case. The 2nd respondent testified on April 29, 2021, and produced a number of documents to show that she had had children with the 1st respondent. The respondents called other witnesses to support their case. These are DW3 LAL; DW4 GAL; Dw5 CAL; DW6 OJO; DW7. Elijah Nyapara Lubembe; and DW8, Miano James Karuiki. DW3 and DW4 are siblings of the 1st respondent. Both confirmed that the 1st respondent was married to both the petitioner and the 2nd respondent. DW4 said he had loaned some money to him, but he did not have documentary evidence. DW5 was an uncle of the 2nd respondent, his case was that dowry was paid for the 2nd respondent by the 1st respondent. DW6 was a brother in law of the 1st respondent, having married his sister. He said he was party to the purchase of the South Wanga, Ekero land. DW7 was a friend and work colleague of the 1st respondent, he testified to being present when the land was bought on December 5, 2012, and that he signed as a witness, and he had been told it was being bought for the 2nd respondent. DW8 said he supplied the construction materials used to develop the land. He said that he dealt with the 2nd respondent.

5. There are two principal issues for me to determine. One relates to dissolution of the marriage, and the other is division of the property.

6. On dissolution of marriage, I note that both sides have filed pleadings where they urge the court dissolve the marriage. They accuse other of cruelty, adultery and discretion. Even without reciting or narrating the facts placed before me, it is quite evident that the marital relationship between them has completely broken down. Both sides concede that cohabitation, which is the central plank in any marriage, has been broken, and the two have lived separately since 2017. It would appear that efforts to resolve it, by way of reconciliation, have met a dead end. A case had, therefore, been made out for dissolution of the marriage.

7. On division of property, allegedly acquired during marriage, the petitioner claims the motor vehicle and the land. The 1st respondent asserts that the petitioner did not contribute a dime to their acquisition and, therefore, she is not entitled to any of them.

8. Before I analyse the evidence placed before me on the issue, let me first revisit a ruling that Njagi J delivered herein, on August 3, 2017, on an application dated 8th May 2017, which I believe should have a profound effect on my final conclusions. The application was by the petitioner and was against the 1st respondent, seeking restraining orders with respect to KCC xxxV and South Wanga/Ekero/xxxx. Both sides had lodged affidavits supported by documentation to support them receptive cases. The application was canvassed by way of written submissions. In the end, Njagi J. granted the restraining orders sought. What is of interest, for the purpose of this judgment, is what Njagi J said at paragraph 9, 10 and 11 of the ruling.

9. Njagi J wrote: -“9 . The facts presented before the court shows that the property herein was acquired during the marriage of the petitioner and the 1st respondent…. 10. It is herein admitted that the motor vehicle was bought through joint contribution between the petitioner and the 1st respondent. It is therefore matrimonial property jointly owned and acquired during the subsistence of the marriage. Though there is a dispute as to whether or not the petitioner contributed to the purchase of the contested parcel of land, there is evidence that the land was acquired during the subsistence of marriage between the petitioner and the 1st respondent. There is therefore a presumption that the land is held in trust for the petitioner…

11. It is admitted that the motor vehicle was being parked at the petitioner’s matrimonial home at Chavakali. It was pleaded that the 1st respondent took his goods from the matrimonial home at Chavakali and went to live with the 2nd respondent. He appears not to have taken the motor vehicle with him. It would appear that though the motor vehicle was family property, it was at what times at the use of the petitioner…”

10. In that ruling, therefore, Njagi J made final conclusions on certain issues, and I need not crack my mind trying to resolve them. Firstly, it was found and held that KCC xxxV was matrimonial property, jointly owned by the petitioner and the 1st respondent. Secondly, as at 3rd August 2017, the petitioner had and was entitled to possession of the said vehicle. Thirdly, a presumption was made that South Wanga/Ekero/xxxx was held in trust for the petitioner by the 1st respondent. I believe the findings and holdings by Njagi J on KCC xxxV conclusively disposed of the issue relating to it. It was matrimonial property and it was jointly owned. Any undoing of the joint ownership would result in equal distribution of the vehicle. On South Wanga/Ekero/xxxx, the findings were only partially conclusive, to the extent of the making of the presumption. I will need to consider what that means for the purpose of distribution.

11. The presumption made by Njagi J, on South Wanga/ Ekero/xxxx, was founded on section 14(1)(a) of the Matrimonial Property Act No. 6 of 2013, which provides that where matrimonial property is acquired during marriage, in the name of one spouse, there shall be a rebuttable presumption that that property is held in trust for the other spouse. So the presumption made on August 3, 2017, regarding South Wanga/Ekero/xxxx is rebuttable. That is to say that although the court did, on August 3, 2017, find South Wanga/Ekero/xxxx to be matrimonial property that the 1st respondent held in trust for the petitioner, the presumption that there was such a trust could be rebutted on displaced by evidence to the contrary. I trust that the evidence the petitioner tendered, at the oral hearing, on South Wanga/Ekero/xxxx, was designed to have make a final affirmation of that presumption, while that by the 1st respondent in intended to displace the presumption.

12. The title deed for South Wanga/Ekero/xxxx, dated 20th June 2013 indicates that the same was registered in the name of the deceased on June 14, 2013. He claims to have bought it in 2012, and he had placed a document on record dated December 5, 2012, being an agreement of sale for South Wanga/Ekero/xxxx, between him and Mohammed Bakari Mbanyako. He said South Wanga/Ekero/xxxx was a subdivision from South Wanga/Ekero/xxxx, but he provided no proof of the said sub- division, by either producing mutation forms for South Wanga/Ekero/xxxx or consent of the local Land Control Board to sub- divide South Wanga/Ekero/xxxx or by way of a green card for South Wanga/Ekero/xxxx. There is, therefore, no evidence that the sale agreement dated, December 5, 2012 had anything to do with the purchase of South Wanga/Ekero/xxxx.

13. So, where did the money to buy South Wanga/Ekero/xxxx come from? Although the 1st respondent said that he bought South Wanga/Ekero/xxxx without any support from the petitioner, he did not provide any proof of payment of the purchase price. The petitioner on her part said she paid Ksh.300,000. 00 as her contribution to the purchase of the land. She said that she withdrew the money on December 15, 2012 and gave the cash to the 1st respondent. The evidence of who paid what for the land is hazy. The 1st respondent has not provided any proof of payment, while the petitioner said she paid Kshs.300,000. 00, money withdrawn on December 15, 2012. None of the partes was definitive on the actual cost of the land. I will go by the sale agreement, it put the sale price at Kshs.270,000. 00 , says that the total purchase price of Kshs. 270,000. 00 had been paid in full on December 5, 2012. So, what was the Kshs.300,000. 00 for, that the petitioner says she withdrew on 1December 5, 2012 and gave to the 1st respondent? The 1st respondent says it was for the car. The petitioner was to pay Kshs.450,000. 00 in total, as her contribution. Which she did in two tranches, one in 2011 of Kshs.150,000. 00 and the second in December of 2012. The car was registered in the name of the 1st respondent in 2015. It sounds plausible, that the money withdrawn by the petitioner on December 15, 2012 of ksh.300. 000. 00 and given to the 1st respondent did not go to the purchase of the land, as that transaction had been completed on December 5, 2012. The sale agreement of December 4, 2012 was produced by the petitioner as per her evidence and, therefore, it is her evidence that the land was fully paid for by December 5, 2012, which means that the money she withdrew could not have been utilized to pay for the land for the land had already be paid for by then. It would be my finding and holding therefore, that the petitioner did not contribute financially to the purchase of South Wanga/Ekero/4353.

14. There was a contest on who developed South Wanga/Ekero/4353. The petitioner says she did contribute to its development. She produced a black book, with entries made by her on December 18, 2016, December 18, 2016, December 18, 2016,December 19, 2016, December 20, 2016, December 21, 2016, December 22, 2016, December 23, 2016, December 24, 2016, December 29, 2016, December 30, 2016, December 31, 2016, January 2, 2017, January 3, 2017 and January 4, 2017, detailing expenses on various items relating to construction. She said they were details of the expenses on the development of the land. However, she did not provide any receipts to support those expenses, nor present a witness to speak to what she alleged was done by her towards the development. She also said she deposited a sum of Kshs.300,000. 00, on January 30, 2017, into the account of the 1st respondent which was meant for development of South Wanga/Ekero/4353. The 1st respondent stated that that deposit was to pay for the car, yet the petitioner had competed her contribution of Kshs.450,000. 00 for the car in December 2012 after she paid him Kshs.300,000. 00 withdrawn on December 15, 2012. The said car had been registered in the name of the 1st respondent in 2015, and the payment in 2017 cannot have had anything to do with the car.

15. The 2nd respondent produced receipts to support her claim that she was the one who developed the land. DW8 was called to authenticate those receipts. The 1st respondent was categorical that it was the 2nd respondent who developed the land. All those receipts relate to expenses incurred in 2017, in the months of February, March, April, June and July 2017. I note that whereas the petitioner made an effort to show where she got the money she was spending, the 2nd respondent did not disclose the source of the money, reflected as spent in those receipts placed on record. If she contributed to the development, what was her source of the money? It is not lost on me that some of the receipts were in February 2017. Just after the petitioner deposited a sum of Kshs. 300,000. 00 into the account of the 1st respondent.

16. What do I make of all these? My finding is that the petitioner and the 2nd respondent have not provided proof that they contributed financially to the sale and acquisition of South Wanga/Ekero/xxxx. However, there is some evidence that the petitioner contributed to the development of the property, through the sum of Kshs.300,000. 00 that she deposited to the account of the 1st respondent on January 30, 2017. I take it that the moneys reflected in the receipts have come from that deposit. It will also take it that the expenses reflected in the receipts from March, April, June and July 2017 might have come from the 2nd respondents own sources. I conclude, therefore, that both the petitioner and the 2nd respondent contributed to the development of South Wanga/Ekero/xxxx.

17. Was it a property bought for the 2nd respondent? I note that the original title deed had been in the custody of the petitioner until it was produced in court on February 18, 2020. She also had custody of the sale agreement of 5th December 2012; until she produced it in court in 2020. The title deed was processed in 2012. The 1st respondent said that he married the 2nd respondent in 2012, and that was when he bought South Wanga/Ekero/xxxx. The 2nd respondent testified that she was married in May, 2012. Cohabitation had begun in March, 2012, and the traditional marriage rites were performed in December 2012. She alluded to an affidavit of marriage signed and sworn on October 17, 2012. That means that by the time the sale agreement for South Wanga/Ekero/xxxx was happening, the 2nd respondent was a wife of the 1st respondent. If that was so, and if South Wanga/Ekero/xxxx was bought specifically for her, why then did the 1st respondent keep the sale agreement of 5th December 2012 in the matrimonial home he shared with petitioner at Chavakali, and not in the custody of the 2nd respondent, the person for whom it was bought? Secondly, when the title for South Wanga/Ekero/4353 was issued in June 2013, he did not take it to the 2nd respondent, instead he placed it in the custody of the petitioner. Why so, if the 2nd respondent was already his wife by 2013? Thirdly, Njagi J, in the ruling of August 3, 2017, alluded to the 1st respondent moving his goods from the matrimonial home at Chavakali and going to live with the 2nd respondent. It is noted that he left the car behind, and it would appear that he also left behind the documents relating to the ownership of the land, with the petitioner. That would suggest that the 2nd respondent was yet to be married at the time the land was being bought. I, therefore, reject the argument that it was being bought for her. As to whether the land meant for the petitioner was at Emalindi, I find that the 1st respondent had no property at Emalindi, for where his house stood was still land registered in his father’s name, according to the evidence, and succession was yet to be done to his father’s estate, and that Emalindi land was yet to vest in him. The petitioner cannot probably could not be entitled to a property that did not belong to the 1st respondent.

18. According to section 2 of the Matrimonial Property Act, No 49 of 2013, contribution on acquisition of matrimonial property can be either monetary or non-monetary. The non-monetary contribution includes domestic work, management of the matrimonial home, child care, companionship, among others. When the land was being acquired in 2012, the petitioner and the 1st respondent were married and in good terms. There was cohabitation, companion-ship and caring for one another. That cohabitation broke in 2017. It would appear that the 2nd respondent was not fully in the picture until sometime in 2017. I shall find, therefore, that as at December 5, 2012, when the land was being brought, the petitioner did contribute to the purchase by way of managing the matrimonial home at Chavakali, doing domestic work there and providing companionship to the 1st respondent. So, it cannot be said that she did not contribute anything to the acquisition of the land.

19. Overall, I find and hold that the petitioner did contribute to and is entitled to a portion of the land. Of course, with the entry of the 2nd petitioner, the position will be that the land is to be shared between three persons being the petitioner; the 1st respondent and the 2nd respondent. I find that the petitioner is entitled to one quarter of South Wanga/Ekero/xxxx.

20. The final orders are; -a.That the marriage between the petitioner and the 1st respondent is hereby dissolved;b.That I declare that KCC xxxV and South Wanga/Ekero/xxxx are matrimonial property, the petitioner is entitled to 50% of KCC xxxV and 25% of South Wanga/Ekero/xxxx;c.That the two assets shall be valued, and the petitioner shall pay 50% of the value of KCC xxxV to the 1st respondent, while the 1st respondent shall pay 25% of the value of South Wanga/Ekero/xxxx to the petitioner; andd.That each party shall bear their own costs.

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