[2017] KEHC 2248 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

MILIMANI

HCC (O.S) NO. 47 OF 2016

IN THE MATTER OF THE MATRIMONIAL PROPERTY ACT, 2013

BETWEEN

ELIZABETH WANJIRU KARUGA........PLAINTIFF/APPLICANT

AND

PAUL KARUGA.............................DEFENDANT/RESPONDENT

JUDGMENT

The Applicant herein by way of Originating Summons Application dated 27th October 2016 and an Affidavit in Support of the Application sought Orders inter-alia that:

I. This Hon. Court do declare that properties (moveable and immoveable) acquired by the joint funds and efforts of the Applicant and the Respondent during their marriage and registered in the name of the Respondent are jointly owned by the Applicant and the Respondent

II. That the said properties be shared equally between the Respondent and the Applicant or be distributed in such other manner as the Court may deem fit to Order

III. That the Respondent be restrained from alienating, encumbering or in any other manner disposing the said properties.

The Summons was based on the grounds that the Applicant and Respondent were a couple. They started living together in 1971 and later solemnized their marriage on 10th June 1988 as evidenced by their marriage certificate of serial no. 32941 and were blessed with one issue of their marriage who is now an adult. Their marriage was dissolved in the Chief’s Magistrate Court as per its judgment of 4th July 2016. In the Affidavit in support of the Summons she submitted that during the pendency of their marriage, they jointly acquired the following properties:

I. NAIROBI/BLOCK/111/784 which is registered jointly in both their names (which was evidenced by a copy of a certificate of lease marked EMK1)

II. ELDORET L.R NO. BLOCK 11 608/609 – Langas Block 111 608 registered in the name of Francis Kanyugi Gitau and Langas Block 111 609 registered in the name of the Respondent Paul Karuga.

III. NDUMBERI/NDUMBERI/T.475 registered in the name of the Respondent

She further submitted that during the subsistence of the marriage, she contributed to the purchase of the properties as she was in gainful employment and had businesses that were income generating. She also contributed towards the welfare of the family. She deposed that the Respondent had threatened to evict her from their matrimonial home and that he intends to sell the Eldoret property. She registered a caution at the Lands Registry, Eldoret to prevent the intended sale. She further deposed that the actions of the Respondent have caused her much suffering thus prompting her to file the Summons.

The Respondent replied to the Summons by way of his Replying Affidavit dated 29th November 2016. He admitted to them having lived together and solemnized their marriage. He denied the deposition by the Applicant concerning joint acquisition of the 3 properties. In the alternative, he submitted that they only jointly acquired one property during the subsistence of their marriage being NAIROBI/BLOCK/ 111/609 which is registered jointly between them. With regard to the other properties, he deposed that he acquired them way back in 1980 through his own independent effort before he had legally married the Applicant and that presently, he had sold Langas Block 111 608 and intends to give Langas Block 111 609 to their daughter; Stella Wanjiru Karuga. He also submitted that the Applicant had sold their second plot in Kapkuros Eldoret and used all the proceeds of the sale to his exclusion. In respect to the 3rd parcel NDUMBERI/NDUMBERI/T.475, he submitted that the same was his ancestral land which his father transferred to his name to take care of the mother. He further deposed that the Applicant has never been on a stable gainful employment and she could thus not have contributed financially to the acquisition of the properties as alleged.

With regard to their matrimonial home, he submitted that the Applicant has been occupying part of the home on KOMAROCK NO. NAIROBI/BLOCK111/784 HOUSE NO. 96 as a tenant by her being the Director of Disabled Child Monitor, a legal entity which has been in occupation of the premises since 2008. He denied threatening to evict her from the matrimonial home. He submitted that the Summons were brought in bad faith and should thus be dismissed with costs.

The Applicant then filed a further Affidavit and Supplementary Affidavit on 19th December 2016 and 9th January 2017 respectively. She denied the Respondent’s averments as to the acquisition of the properties. She argued that the Langas property ELDORET L.R BLOCK 111 609 was still registered under the name of the Respondent and that ELDORET L.R NO. BLOCK 111 608 was indeed disposed and was currently registered in the name of one Francis Kanyugi Gitau.

HEARING

The Hearing commenced on 26th January 2017 with the Applicant Elizabeth Karuga who explained the contents of her pleadings. On 16th February 2017, the Court heard the evidence of the Respondent and he also relied on his pleadings.

The Applicant informed the Court that she worked at K.I.A from 1976 to 1977 and with Kenya Union of Civil Servants from 1978. She joined her Husband in Eldoret and operated a soda distribution business.

SUBMISSIONS

Applicant’s Submission

After the matter was heard, parties filed their respective submissions. The Applicant filed her submissions on 15th March 2017. She reiterated the contents of her pleadings and further submitted that she started cohabiting with Respondent from 1971 and thus during the subsistence of that marriage which was solemnized in 1988, they acquired the suit properties together and she contributed to the acquisition and development.

Respondent’s submissions

The Respondent also filed his submissions on 8th March 2017. He relied on Section 6 of the Matrimonial Property Act, 2013 which defines what constitutes matrimonial property. He further relied on Section 59 of the Marriage Act, 2014 which espouses on various ways through which a marriage celebrated in Kenya can be proven. He submitted that the Eldoret property LANGAS BLOCK 111 609 was acquired before his marriage to the Applicant in 1978 and thus by virtue of section 5 of the Matrimonial Property Act, 2013which provides,

“Subject to section 6, the interest of any person in any immoveable or moveable property acquired or inherited before marriage shall not form part of the matrimonial property...”

The said property does not constitute matrimonial property and is not available for distribution.

He further relied on the cases of A.O v N.A Civil suit No. 86 of 2012 and E.L.GvN.K.W Civil suit No. 14 of 2016 wherein it was held that only properties acquired during the subsistence of marriage amounted to matrimonial property and were subject to distribution.

In submitting that NDUMBERI/NDUMBERI/T.475 was not matrimonial property as the same was ancestral land, he relied on Section 6(2) of the Matrimonial Property Act, 2013 (ibid) which excludes trust property including property held in trust under customary law as matrimonial property.

With regard to their matrimonial home KOMAROCK NO. NAIROBI/BLOCK 111/784 HOUSE NO. 96, he submitted that it was indeed acquired during the pendency of their marriage and the same is matrimonial property. He however argued that he acquired it through a mortgage facility which was fully serviced by him. He further submitted that an extension thereof was let out to the Applicant’s organization at an agreed rent of Ksh. 18,000/- monthly. He relied on the case of Peter Mburu Echaria v Priscillah Njeri Echaria (2007) wherein the Court of Appeal observed that a spouse was entitled to a share of Matrimonial property according to his or her contribution.

ANALYSIS

This matter relates to the division of matrimonial property between the parties who were married but the marriage was dissolved on 4th July 2016. They have since lived apart but in the matrimonial home and now seek to distribute the properties they acquired during the subsistence of their marriage so that both can move on with their separate lives. Article 45 (3) of the Constitution of Kenya, 2010 speaks to the rights and entitlements of parties to a marriage before, during and after the marriage as in this instant case. It provides;

“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.”

These rights as alluded to by the Article include rights as to ownership of matrimonial property between the parties after the marriage has terminated. The Matrimonial Property Act, 2013 a statute which breathes life into that Article as was held in V.W.NvF.N [2014] eKLR quoted in the case of Peter Njuguna NjorogevZipporah Wangui Njuguna C.A 128 of 2014 extensively provides for the rights and responsibilities of spouses in relation to matrimonial property.

Section 6 of the Actprovides:

(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.

Section 7provides:

“Subject 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.”

AndSection 2 defines“contribution”to mean monetary and non-monetary contribution and further elucidates that; Non-monetary contribution 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

From the facts of the case as reiterated above, it is the Applicant’s position that the 3 properties listed in her Summons and the subject of this suit all constitute matrimonial property as they were acquired during the subsistence of her marriage to the Respondent and that she contributed in one way or the other towards their acquisition and thus should be shared equally. The Respondent on the other hand contends that some of the properties listed as such do not constitute matrimonial property and should thus not be the subject of this sought division. The Respondent attempts to further explain why some of those properties do not constitute matrimonial property. I shall undertake to first explain whether or not the properties are matrimonial property before discussing whether there was contribution and determining the shares of the parties in the properties.

I. KOMAROCK NO. NAIROBI/BLOCK 111/784 HOUSE NO. 96

It is uncontested that this property is registered jointly in the name of both parties,(this is evidenced by a copy of a certificate of lease marked EMK1).The Applicant submitted that the property was acquired during the subsistence of their marriage and that she contributed towards its acquisition as she was in gainful employment then. The Respondent though agrees that the property was acquired during the pendency of their marriage, he however submitted that he acquired it in 1980 through a mortgage facility which was fully serviced by him and that part of the home was rented out to an Organization.

Looking atsection 6 of the Matrimonial Property Actwhich defined matrimonial property to include matrimonial home, this property does constitute matrimonial property according to the meaning of the Act. Moreover, in as much as the Respondent might have indeed serviced the mortgage facility on his own without help from the Applicant, it would be unfair to dismiss the role that she played as a wife to the Respondent and mother to their Child at that particular point. She must have contributed in one way or another in her capacity as a wife to the Respondent by providing companionship, child care to their child and management of the matrimonial home. The Applicant was in formal employment from 1977 to 1979 and later engaged in soda distribution business. She made both direct and indirect contribution to the acquisition and development of the suit property.

In the case of V W N v. F N (ibid)it was held inter-alia;

“...The Matrimonial Property Act recognizes that both monetary and non monetary contribution should be taken into account in determining contribution...”

Moreover, she was employed and later conducted businesses during the marriage and she thus made financial contribution.

Additionally,Section 14 of the Matrimonial Property Act provides:

Where matrimonial property is acquired during marriage—

(a) …

(b) In the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal.

This rebuttable presumption comes in handy having considered the voluntariness of marriage unions.

By dint of Section 14(b), ibid, and by reason of the fact that this property was acquired during the pendency of the marriage and is registered in the names of both parties and also taking into account contribution of the parties, the presumption applies in that both parties have an equal interest in the property. With this said, it is this Courts position that this suit property does constitute matrimonial property and thus vest in both parties equally.

Moreover, the Respondent admitted in his testimony that this suit property was jointly acquired during the marriage and has been their matrimonial home to date. Therefore, the property shall be shared equally between the parties and she shall not pay rent of Ksh. 18,000/- as she is a co-owner of the home.

II. NDUMBERI/NDUMBERI/T.475

It is the Applicant’s contention that this property constitutes matrimonial property though the same is registered in the name of the Respondent. The Respondent on the other hand contends that the said parcel is ancestral land. He informed this Court that in 1992 his late father asked him to obtain a loan and develop his portion of ancestral land which he did. His father transferred the land in his name in 1996 so that he could take care of his mother. The Respondent’s father died in 1997. On the land are his siblings; 2 brothers and their families after his mother died. This is the land where the Respondent’s mother lived until her demise and siblings and their families as a whole.

The question is whether property inherited by a married person constitutes matrimonial property.

Section 6(2)ofthe Matrimonial Property Actprovides;

“Despite subsection (1), trust property, including property held in trust under customary law, does not form part of matrimonial property.”

In Muthembwav Muthembwa(2002) 1 EA 186 it was held,

“...no spouse can acquire an interest in any property inherited by the other spouse from his or her parent unless the property had been improved with finances provided by the other spouse.”

As explained by the Respondent, this suit property was transferred to him by his father so that it can be used for the benefit of the family as a whole. He thus holds the property as a trustee for his family and not in his capacity as a sole heir. Having regard to these circumstances under which the transfer was made, the Respondent holds the land as a trustee and thus it cannot be said to constitute matrimonial property. The Applicant has not shown any evidence that she used her finances to purchase or develop the land. Since the transfer of the land was by the Respondent’s father during his life to him, to hold it for the rest of the family residing on the land, it is not available for distribution.

III. ELDORET L.R NO. BLOCK 11 608/609 (Langas Block 111 608 and Langas Block 111 609 )

From the pleading, it was the Applicant’s position that this property also constitutes matrimonial property though solely registered in the name of the Respondent. The Respondent submitted that he acquired it way back in 1978. He explained that as at 23rd August 2016, Langas Block 111 608belonged to one F.K.G and Langas Block 111 609 belonged to him. He submitted that the entire property was acquired by him before he married the Applicant and that he intends to bequeath the remaining Langas Block 111 609 to their daughter. The Applicant admitted that Langas Block 111 608 was sold to a 3rd party and submitted that Langas Block 111 609 was still registered under the Respondent’s name and she had registered a caution against it to prevent him from disposing it pending the hearing and determination of this case.

From the averments, it is the Respondent’s position that the property does not constitute matrimonial property as it was acquired before his marriage to the Applicant. This notwithstanding, he had admitted to paragraph 4 of the Applicant’s Affidavit in support of the Summons which stated;

“I and the Respondent started living together in 1971 and later solemnized our marriage in 10th June 1988. ”

Common Law Marriages; a principle which still applies and was held to be good law arise from the principle of presumption of marriage after a reasonable period of cohabitation by the parties. Presumption of marriage usually arises where a man and woman cohabit and hold themselves out as man and wife even though they have not undergone any formal marriage. This Common law presumption is applicable in Kenya by virtue of Section 3 of the Judicature Act, Cap 3 Laws of Kenyaand the case ofYawevRepublic C.A No. 13 of 1976.

From the facts, the parties lived together from 1971 though the marriage was solemnized 7 years later. During this period they had one child, this Court presumes that the parties had a marriage for all intents and purposes from 1971. The said suit property was acquired in 1978. Although no solemnisation had taken place, 7 years is a period long enough for a marriage to be presumed. Therefore, the parties were married at the time the property was acquired and the same constitutes matrimonial property. The same shall be shared equally.

DETERMINATION

From the foregoing analysis of each of the suit properties, it is this Court’s position that only KOMAROCK NO. NAIROBI/BLOCK 111/784 HOUSE NO. 96andELDORET L.R NO. BLOCK 11 608/609 constitutes matrimonial property as explained in the former part of this analysis. However, taking into account the fact that Langas Block 111 608 was sold to a third party, a bona-fide purchaser for value, the same is not available for distribution. The Applicant also sold Kipkarus L.R 12429. The only portion that is available for distribution is Langas Block 111 609.

In Francis Njoroge vVirginia Wanjiku Njoroge C.A 179 of 2009 quoted in Peter Njuguna NjorogevZipporah Wangui Njunguna C.A 128 of 2014 it was held:

A division of matrimonial property must be decided after weighing the peculiar circumstances of each case.”

This position as read with Section 7 of the Matrimonial Property Act for this court to carefully consider the circumstances of each case so as to proceed on a basis of fairness and conscience.

In this instant case, it is clear from the pleadings by both parties and the analysis in the former part of this discourse that the two suit properties which constitute matrimonial property were acquired during the subsistence of their marriage. Although it might indeed be a fact that the Respondent did contribute a lion share to their acquisition, the contribution of the Applicant cannot be dismissed. She; as a wife and mother contributed in ensuring the wellbeing of her husband and Child during the pendency of the marriage as the Husband went out to work and provide for the family. Moreover, taking into account the fact that she was in gainful employment at some point in her marriage, we cannot deny that she helped sustain the family in one way or the other as her pocket would allow. The bottom line is that both parties did their best in providing for their family and though the marriage might have faced challenged forcing them to opt-out, the fact still remains that both contributed emotionally, financially and psychologically to their marriage. The non-monetary contribution is on the very same pedestal with the financial contribution as both exist to nurture a family as a social unit. In as much as one cannot quantify non-monetary contribution, I am convinced that it should be held as important as their financial contribution.

DISPOSITION

I. NAIROBI/BLOCK/111/784 registered in the joint names of the parties and comprised of the matrimonial home be shared equally between the parties.

II. ELDORET L.R BLOCK 11 609 shall be shared between the two parties equally.

III. NDUMBERI/NDUMBERI T.475 is not inherited property but ancestral land occupied by the Respondents’ siblings. No occupation and no developments have been made by the Applicant. The property shall remain with the Respondent’s family only.

DATED, SIGNED and DELIVERED IN OPEN COURT this 3RD day of NOVEMBER 2017

MARGARET W. MUIGAI

JUDGE

IN THE PRESENCE OF;

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