[2015] KEHC 7415 (KLR)
The court found that the judgment delivered on 25th March 2013, which declared the suit property to be owned in equal shares and directed its sale or buyout, remains valid and enforceable as it has not been stayed or set aside. The court considered the applicant's financial hardship and the urgency created by the...
Source-derived case information.
- Citation
- [2015] KEHC 7415 (KLR)
- Parties
- Plaintiff: E A O; Defendant: C O O
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 41 of 2008
- Procedural Posture
- Civil Case / Post Judgment Enforcement Ruling
- Outcome
- Application for enforcement of judgment granted; property to be sold or bought out as per judgment and valuation reports.
- Judges
- REA Ougo
- Legal Topics
- Matrimonial Property, Property Apportionment, Valuation of Property, Enforcement of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
E A O
Plaintiff
C O O
Defendant
Procedural Posture
Civil Case / Post Judgment Enforcement Ruling
Legal Issues
- 1 Whether the court should enforce the judgment declaring equal ownership and direct the sale or buyout of the matrimonial property.
- 2 Whether the valuation reports submitted by both parties should be used to determine the sale price or buyout amount.
- 3 Whether the applicant is entitled to expedited enforcement due to financial hardship and imminent sale by the bank.
Ratio Decidendi
The court found that the judgment delivered on 25th March 2013, which declared the suit property to be owned in equal shares and directed its sale or buyout, remains valid and enforceable as it has not been stayed or set aside. The court considered the applicant's financial hardship and the urgency created by the bank's statutory notice of sale. Both parties had submitted valuation reports, and the court determined that these reports should be used to guide the sale or buyout process as previously ordered. The court thus ordered that the property be sold using the submitted valuation reports, with proceeds to be apportioned equally, or that either party may buy out the other at half the...
Court Disposition
Application for enforcement of judgment granted; property to be sold or bought out as per judgment and valuation reports.
Orders
- The valuation reports submitted by both parties shall be used to sell the matrimonial home as directed in the judgment dated 25th March 2013.
- Proceeds of sale to be apportioned equally between the parties.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CIVIL CASE NO. 41 OF 2008
UNDER SECTION 17 OF THE MARRIED WOMAN PROPERTY ACT, 1882
IN THE MATTER OF AN APPLICATION FOR DECLARATION OF PROPERTY RIGHTS
E A O …………………………………………..PLAINTIFF
-VERSUS-
C O O …………………………..…………..DEFENDANT
RULING
By a judgment dated 25th March 2013 Justice G.B.M. Kariuki as he then was after hearing the parties declared that the suit property No. RUIRU/KIU/BLOCK [particulars withheld]situated in Nairobi which is jointly registered in the names of the applicant and the respondent is owned in equal shares by the Applicant and Respondent.
That the suit property be sold and the proceeds thereof be apportioned equally between the parties providing that either is at liberty to buy out the other by paying the other half of the agreed market value of the property to be determined by a competent valuer agreed on by the parties and in the absence of agreement to be appointed by the court.
On the 8th of April 2013 the defendant filed an application to stay the execution of the said judgment and also sought the setting aside of the same. I note that this application has never been prosecuted to-date.
The applicant through a Notice of Motion filed on 8th May 2013 sought to have a valuer appointed by the Court. The said order was granted on 26th March 2015.
In compliance the applicant filed a valuation report from Mbindah & Company dated 28th April 2015 on residential property No. RUIRU/KIU/BLOCK [particulars withheld],Kahawa Sukari Thika County as per the said report the property is valued atKshs. 15,012,500/- while the respondent filed a valuation report from Interlink Real Estate on the said property and as per the said report the property is valued at Kshs. 12,000,000/-.
Today morning Mrs. Rashid for the applicant drew the courts attention to the two reports and also to a further affidavit filed by the applicant. She depones in the said affidavit that she has secured a loan with consolidated bank to purchase the said house where she resides with the children. Currently she is unemployed and the loan repayment have become difficult to manage that the bank has given her a statutory notice of sale of the said property which is due to be sold at any time hence she is in dire need of finances and requests the court to expedite the process of sale of the Kahawa Sukari matrimonial home or alternatively the respondent to pay her half the value of the said home. Mrs. Rashid in her submissions in court has asked this court to enforce the judgment as it still stands and the obstacle that was the valuation report has now been undertaken.
The respondent though served did not attend court the judgment delivered on 25th March 2013 has neither been stayed nor set aside and the same is therefore enforceable. I therefore order that the valuation reports submitted be used to sell the matrimonial home as directed in the judgment dated 25th March 2013. Going as per the said valuation reports the property should fetch a sum of between 12 million and 15 million. Costs shall be in the costs.
Dated, signed and delivered this 25thday of June 2015.
R. E. OUGO
JUDGE
In the presence of:-
…………………………………….. For the Applicant .………………..…….…….………… For the Respondent
M/s. Charity Court Clerk