[2022] KEHC 2955 (KLR)

EMM v PNN (Civil Case 12 of 2020) [2022] KEHC 2955 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 2955 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Case 12 of 2020

MM Kasango, J

June 16, 2022

Between

EMM

Plaintiff

and

PNN

Defendant

Judgment

1. The plaintiff, EMM was the former wife of the defendant, PNN. They were married under the Kikuyu Customary Law in October, 1991, until their divorce at Chief Magistrate’s Court Ruiru Divorce Cause No. xx of 2019. The plaintiff seeks by this action, declaration that she is entitled to half of the properties registered in the name of the defendant; for an order that the said properties be sold and the sale proceeds be shared equally; and for an order of refund of Kshs 250,000 the money the plaintiff alleged she contributed to the purchase of motor vehicle KBN [particulars withheld].

2. The plaintiff’s claim is denied by the defendant. The defendant by his defence denied that the plaintiff played a role of a wife to the defendant and to the children; or that she worked to utilize her resources in meeting the subsistence expenses of the family, or contributed to the payment of school fees of the children of the marriage and that she did not participate in acquisition of properties for the family.

3. The plaintiff stated that the marriage was blessed with three children. SN first born son is born April 1992; WP second born daughter is born January 1996; and WM last born son bon in the year 2006.

4. They were married while the plaintiff was an undergraduate student at [particulars withheld] Campus University, Nairobi. The defendant proceeded to undertake his PhD studies in Australia in the year 1996. The plaintiff stated that when the defendant left for Australia she had just delivered their second born child. She stated she used to fend for those children single handedly. When defendant left for studies in Australia the family began to construct a house at defendant’s parent’s home. She stated that she supervised all the construction work and worked as a labourer, which included fetching water thereof. At the end of 1996, the plaintiff and the children of the marriage joined the defendant in Australia where the plaintiff worked in a convenience store, during the week days and at the week end she worked at a farm. The plaintiff stated while in Australia she supported the defendant while he studied. That the salary she earned was used for the day to day expenses of the family. The defendant was working and was also given a stipend. His earning and his stipend was set aside for the betterment of the family’s wealth creation on their return to Kenya. That money according to the plaintiff, the defendant sent it to Kenya just before their return. With the saved money and the salary, the defendant continued to receive as a civil servant while he undertook his PhD studies was used by the family to purchase their first matatu. The plaintiff stated that the matatu business thrived and the defendant continue to work as a Civil Servant. The income of the matatu was enough to meet the family’s daily needs. The family was able to buy another matatu. The plaintiff stated that she managed the matatu business by taking the matatus to the garage purchasing spare parts and dealing with the drivers. The defendant in the evening would receive the daily income of the matatus. They eventually owned three matatus.

5. Through the accumulated income of the matatu business the plaintiff said they purchased property Githunguri (withheld) 1954 for Kshs 400,000. This property was developed as the matrimonial home and that is where the plaintiff resides with the children of the marriage. They began residing on that property in the year 2003. This is what the plaintiff stated in evidence in respect to the construction of the matrimonial home:-“I was incharge of the construction of the said land plot and I used to go to the quarry as early as 5. 00 am to queue to buy stones.The funds utilized to build the said land plot came mainly from the matatu business I was managing and partly from the funds the defendant saved from his scholarship stipend and salary while in Australia as we had agreed as foresaid.From the same proceeds we furnished the house.”

6. In the year 2003 they purchased the fourth matatu. In the following year, they sold one of their vehicles and with the proceeds they opened a vehicle spare parts shop at Ruiru town which was run by the plaintiff and the proceeds of that business were used in the family home.

7. The plaintiff said that during that time, the finances of the family were retained by defendant and she could not buy clothes or utensils without asking the permission of the defendant.

8. In the year 2005 the plaintiff undertook a master’s degree at the Kenyatta University and in the same year she was employed but the government as an Agricultural Extension Officer. She earned in that job Kshs.20,000 per month.

9. Thereafter, the family purchased property No Ruiru (withheld)/372 for about Kshs 400,000. The plaintiff said that it was her idea for them to purchase that property and that she signed the sale agreement as a witness.

10. The family also purchased another property Nyandarua (withheld)/436 for Kshs.600,000.

11. The plaintiff stated the defendant allocated to her 1/3 of the family budget she had to meet and she further stated thus:-“I attended all the school meetings for the children who were schooling in Nyeri High School, Precious Blood Kagwe Girls and Bethlehem Academy. The defendant never attended any school meeting and I had to abandon my work and attend to meetings.”

12. That the family further purchased plot in Mboi-I-Kamiti Co. Ltd.

13. The plaintiff’s evidence is that all those immoveable properties that were acquired were registered in the defendant’s name.

14. That the defendant purchased motor vehicle KBN [Particulars Withheld] to which the plaintiff contributed Kshs.250,000/=.

15. That from 2017 the defendant failed to meet the family budget including failing to pay the second born child’s university fees. The plaintiff was also left with the responsibility of taking the last born child to school and pick him in the evening because the defendant refused to do so.

16. The defendant confirmed he married the plaintiff while she was a student of Nairobi University. That they were blessed with three children.

17. That in January, 2001, he acquired and paid for the property Ruiru (withheld)/1954 without the plaintiff’s financial assistance, and through his personal savings he built a residential house which is the matrimonial home.

18. That he also purchased (withheld) Ruiru (withheld)/372 from his personal savings without the assistance of the plaintiff.

19. Further, he purchased two plots in Mboi-i-Kamiti, one for himself and the other for the plaintiff whereby the plaintiff paid Kshs.30,000 while he paid Kshs 30,000 while he paid Kshs 117,000. Similarly, that he purchased the Nyandarua (withheld)/436 without the plaintiff’s assistance. The defendant also denied the plaintiff contributed to the purchase of the vehicle KBN but that it was purchased from the proceeds of another vehicle which he topped up with his savings.

20. The defendant denied deserting their matrimonial home, but rather, that it was the plaintiff who deserted that home between 2014 and 2015.

21. The defendant stated that he employed a house-help to assist the plaintiff when the children were young. He denied failing to pay fees for the children of the marriage and stated that he continued to pay the youngest child’s school fees. The defendant further stated:-“Since 1996, I supported the family while they were staying in Kenya and also supported them to join me in Australia where I was studying where I paid for their tickets and upkeep through my stipend and part-time employment.”

22. The defendant alleged the plaintiff owned a property in Nanyuki and that the plaintiff was more involved with undertaking projects with her sister than with development of her own family. The defendant therefore stated that the plaintiff had not proved any contribution to the acquisition of the properties in this cause.

Analysis 23. The parties filed their issue for determination. Those are:-(a)Were the plaintiff and defendant married from October, 1991 and divorced in May, 2020?(b)Were the following assets acquired during the subsistence of the said marriage?(i)(withheld) Ruiru/1954(ii)(withheld) Ruiru/372(iii)(withheld) Ruiru/436(iv)(withheld) Mboi-i-Kamiti (withheld)(c)Are the properties matrimonial?(d)How should the assets be shared between the parties?(e)Is the plaintiff entitled to a refund of Kshs 250,000 she contributed for purchase of motor vehicle KBN (withheld)?(f)Should a permanent injunction issue against defendant as prayed in the plaint?(g)Who should pay the costs?

24. The first issue identified above is not an issue before court because both parties acknowledged and confirmed that they were married in 1990 and were divorced in May, 2020.

25. Similarly, the parties do not contest that the properties the subject to this suit were purchased during the subsistence of the marriage. It follows that the second issue is found in the affirmative. That determination of what is matrimonial property requires consideration of section 6 of the Matrimonial Property Act (hereinafter the Act). that Section provides:-

“(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.”

26. With that provision of the above section in mind, it follows that, property (withheld)/1954 which both parties confirmed was matrimonial home is matrimonial property. See Section 6(a) of the Act. The other properties listed above are solely registered in the name of the defendant. It follows that bearing Section 6(c) of the Act because those properties are not jointly owned, the plaintiff needs to prove they are matrimonial property.

27. In respect to the third issue above, the court finds and holds that property Ruiru/1954 is matrimonial property. Whether or not the other properties are subject to be shared between the plaintiff and the defendant will be considered as I consider the fourth issue above.

28. The major issue that is the fourth issue for consideration in this judgment is whether the properties the subject of this suit should be shared between the parties and if so in what proportion. Before delving in discussion of that issue, I need to state that the defendant erred in submitting that properties allegedly registered in the plaintiff’s name, that is the Mboi-i-Kiamit plot and the vehicle registration No. KCK (withheld) are subject of this suit. I categorically say they are not. The defendant did not counter claim in his defence to bring those properties within the purview of this case: See the Court of Appeal’s holding in the case Galaxy Paints Company Limited v Falcon Guards Limited [1999] eKLR thus:-“... Civil Procedure Rules, are clear that issues for determination in a suit generally flow from the pleadings and unless the pleadings are amended in accordance with the Civil Procedure Rules, the trial court by dint of the aforesaid rules may only pronounce judgment on the issues arising from the pleadings or such issues as the parties have framed for the court’s determination.”

29. It follows the Mboi-i-Kamiti property allegedly owned by the plaintiff and motor vehicle KCK (withheld) will not be considered in this judgment.

30. I will now return to the main issue on sharing of the properties, if at all, the subject of this suit. I will begin by first considering Section 14 of the Act. that Section provides:-“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.”

31. As stated above in this judgment, all the properties the subject of this case were acquired during the subsistence of the marriage and were registered in the defendant’s sole name. Going by the provisions of Section 14(1) above, the rebuttable presumption is that those properties are held by the defendant in trust for the plaintiff. Rebuttable presumption is defined in the Black’s Law Dictionary Tenth Edition as:-“An inference drawn from certain facts that establishes a prima facie case which may be overcome by the introduction of contrary evidence.”

32. The defendant by his evidence responded that presumption by showing through receipts and other documents that the properties were bought from his sole finances.

33. The plaintiff in turn laboriously gave details of her financial and non-financial contributions she made to the family’s wealth accumulation. The details of that alleged contribution is set out above in this judgment. But to recap the plaintiff said that defendant went to Australia to further his studies leaving her soon after having given birth to their second born child. She and their two children joined the defendant in Australia whereupon she worked in a convenient store and in the farm. She said that her income was the money they used for their upkeep in Australia while they saved the stipend and salary the defendant received. It was that saving they used as a springboard to their investment journey in Kenya. The plaintiff also narrated how she assisted in the management of their matatus business whose proceeds enabled them purchase the immovable properties. The plaintiff’s evidence is that the income of the matatu business was retained by the defendant.

34. Section 2 of the Act defines contribution in matrimonial property cases. The Section provides thus:-“In this Act, unless the context otherwise requires:-“contribution” means monetary and non-monetary contribution and 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.

35. The court in the case AWM v JGK[2021] eKLR considered that Section and held thus:-“Section 2 of the Matrimonial Property Act defines contribution to include companionship.It is clear to this court that the Matrimonial Property Act of 2013 recognizes and formalizes both the monetary and non-monetary contribution of parties in a marriage. The same position is captured in authorities including NWM v KNM [2014] eKLR where it was stated that the court must give effect to both monetary and non-monetary contributions that both the applicant and the Respondent made during the currency of the marriage to acquire the matrimonial property. The same position was held by the House of Lords in White v White [200] UKHL 54 where the Court alluded to the greater awareness of the value of non-financial contributions to the welfare of the family.It is my considered view that the non-monetary contribution often-times cannot be quantified. If that contribution were to be reduced to monetary terms I am sure that a woman’s non-monetary contribution in the home would amount to a higher amount compared to that of the man. It is my finding therefore that the Applicant made monetary and non-monetary contribution towards acquiring the matrimonial property and that her non-monetary contribution is higher than that of the Respondent.”

36. The plaintiff gave evidence and it was not contradicted, that she ran a car spare parts shop. It would therefore be seen that as a wife and mother, even if there was house help present, she was juggling between the house hold care, taking care of the children, the defendant and the car spare parts shop.

37. Section 7 of the Act deals with ownership of matrimonial property. That section provides:-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.

38. Although Article 45(3) of the Constitution provides that parties to a marriage are entitled to equal rights at the time of marriage, the jurisprudence that has developed on division of matrimonial property reveals that the term equal does not necessarily mean 50-50 division of matrimonial property. The court indeed as much in the case PNN v ZWN[2017] eKLR as follows:-“Does this marital equality recognized in the Constitution mean that matrimonial property should be divided equally? I do not think so. I take this view while beginning from the premise that all things being equal, and both parties having made equal effort towards the acquisition, preservation or improvement of family property, the process of determining entitlement may lead to a distribution of 50:50 or thereabouts. That is not to say, however, that as a matter of doctrine or principle, equality of parties translates to equal proprietary entitlement. The reality remains that when the ship of marriage hits the rocks, flounders and sinks, the sad, awful business of division and distribution of matrimonial property must be proceeded with on the basis of fairness and conscience, not a romantic clutching on to the 50:50 mantra. It is not a matter of mathematics merely as in the splitting of an orange in two for, as biblical Solomon of old found, justice does not get to be served by simply cutting up a contested object of love, ambition or desire into two equal parts. I would repeat what we said in Francis Njoroge v Virginia Wanjiku Njoroge, Nairobi Civil Appeal No. 179 of 2009; ‘… a division of the property must be decided after weighing the peculiar circumstances of each case.’”

39. I have carefully considered the parties evidence. The plaintiff has convinced this Court, on a balance of probability that, she made contribution to the purchase of the properties both directly and indirectly. She contributed to the acquisition of the properties and their development. Although the defendant alleged the plaintiff was wasteful and did not make any contribution, what his statement shows is that during the period when the properties were acquired, that was not the case that she was not wasteful until their marriage began failing. This explains why the defendant started his sentence in his statement, thus:-“Elizabeth became uncooperative, selfish, wasteful, so distant soon after employment and in many cases she hardly provided the necessary companionship in non-monetary contribution to matrimonial property.”

40. Clearly, the parties had a cordial relationship because they were together as they purchased the Mboi-i-Kamiti property, the Ruiru (withheld) 372. The latter transaction the plaintiff witnessed the agreement for sale dated 25th January 2008. The plaintiff also witnessed the document evidencing defendant’s ownership of Ruiru(withheld)1954 dated January 17, 2001. If the plaintiff’s attitude to the marriage changed, it changed after the subject properties were purchased.

41. The alleged wastefulness and uncooperativeness of the plaintiff would seem to relate to when the marriage was floundering. Otherwise, it is clear the parties were close and worked together to build the family wealth to what it is now.

42. Considering the facts of this case and bearing in mind the Matrimonial Property Act, I find and hold that the plaintiff is entitled to share the properties: Ruiru/1954 and half share of Nyandarua 436. The defendant shall retain properties: Ruiru/372; half share of Nyandarua and Mboi-I-Kamiti. There being insufficient evidence of the alleged contribution by the plaintiff to the purchase of motor vehicle KBN the claim for that refund is declined.

Disposition 43. The judgment and the declaration of this Court is as follows:-(a)The Property Ruiru(withheld) 1954 shall be transferred to the plaintiff.(b)The property Ruiru(withheld) 372 shall be retained by the defendant.(c)The property Nyandarua (withheld)/436 shall be divided equally between the plaintiff and defendant.(d)The property Mboi-I-Kamiti property shall be retained by the defendant.(e)The plaintiff’s claim for refund of Kshs.250,000 fails and is dismissed.(f)Each party shall bear their own costs.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 16TH DAY OF JUNE, 2022. MARY KASANGOJUDGECoram:Court Assistant : MouriceFor the Plaintiff : S.N. NgangaFor the Defendant : Mr. KamonjoCOURTJudgment delivered virtually.MARY KASANGOJUDGE