[2022] KEHC 12586 (KLR)

EN v HOO (Originating Summons E043 of 2021) [2022] KEHC 12586 (KLR) (Family) (1 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12586 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Originating Summons E043 of 2021

MA Odero, J

July 1, 2022

IN THE MATTER OF THE ESTATE OF MATRIMONIAL PROPERTY ACT NO. 49 OF 2013 (DECEASED)

Between

EN

Applicant

and

HOO

Respondent

Ruling

1. Before this Court is the Notice of Motion dated 4th January 2022 by which the Applicant EN seeks the following orders:-“1. Spent.2. That pending the hearing and determination of this application, the Honorable court be pleased to restrain the Respondent herein, his agents, servants, Advocates or Auctioneers in any manner or in any way whatsoever and howsoever from issuing threats, harassing, assaulting and embarrassing the Petitioner and/or interfering with the Petitioner’s right to unlimited access to the matrimonial properties.3. That pending the hearing and determination of this application, the Respondent’s Advocate Mr Obach and the Respondent be ordered to forthwith and unconditionally return and/or hand over the following personal effects and items to the Applicant:-i.United States and Kenyan passportsii.Texas driving licenseiii.1 Bank debit cardiv.6 Bank credit cardsv.Kshs 250,000 in cashvi.2 laptopsvii.1 Samsung phoneviii.1 Tabletix.1 computer monitorx.1 Fitbit Sense Advanced Smart Watchxi.2 headphones (one Bluetooth)xii.2 Bluetooth earbudsxiii.1 Bluetooth Speakerxiv.Personal jewelry worth 1000 USDxv.One Safaricom routerxvi.I portable hard drivexvii.2 voice recordersxviii.1 thumb drivexix.6 phone chargersxx.Extension cordxxi.1 air mattressxxii.2 bottles of perfume and toiletriesxxiii.1 pair of sandalsxxiv.Pairs of pantiesxxv.Pairs of brassierexxvi.I pair of coach prescription sunglasses4. That pending the hearing and determination of this application, the officer commanding station OCS of the nearest police station be and is hereby ordered to ensure the safety and protection of the petitioner and that peace, order and tranquility is maintained at all times the Petitioner is accessing and residing within the matrimonial properties.5. That pending the hearing and determination of the main motion, the Petitioner/Applicant be allowed unlimited right of ingress and egress in all matrimonial properties.6. Thatcosts of this application be borne by the Respondent.”

2. The application was premised upon order 40 Rules 1 and 2, Order 50 Rule 1 of the Civil Procedure Rules 2010, Sections 1A, 1B, 3A and 63 (e) of the Civil Procedure Act, Cap 21 Laws of Kenya and all other enabling provisions of the law and was supported by the Affidavit for even date as well as the supplementary Affidavit dated 8th April 2022 both sworn by the Applicant.

3. The Respondent HOO opposed the application through his Replying Affidavit dated 19th March 2022. The application was canvassed by way of written submissions. The Applicant filed the written submissions dated 25th April 2022 whilst the Respondent relied upon his written submissions dated 4th May 2022.

Background 4. The Applicant and the Respondent are a couple who have been married for several years. Their marriage was solemnized in the County of Tarrant, Dallas in the state of Texas USA. The parties both stated that the children born of their union are now all adults.

5. The Applicant averred that during the subsistence of the marriage the couple jointly acquired matrimonial properties including but not limited to Title Number L.R. xxxx which properties were all registered in name of the Respondent.

6. The Applicant filed a chamber summons dated 30th July 2021 seeking conservatory orders in respect of the said matrimonial properties. She averred that she was apprehensive that the Respondent may at any time move to dispose of the matrimonial properties to her exclusion therefore causing the Applicant irreparable harm.

7. In response to the chamber summons the Respondent filed a Notice of Preliminary objection dated 22nd November 2021, challenging the jurisdiction of the court to issue the conservatory orders being sought as the parties were still married to each other and still enjoyed unbroken coverture. The Notice of Preliminary objection was withdrawn on 15th March 2022.

8. The Applicant then filed this particular application seeking orders to allow her unlimited ingress and egress to into the matrimonial properties pending the hearing and determination of the main suit. The current application was prompted by the following events.

9. The Applicant who ordinarily resides in the USA stated that the court made orders on 2nd December 2021 allowing her unlimited access to the matrimonial properties. That she travelled to Kenya in December 2021. On 20th December 2021, the Applicant travelled to their rural home in Mbita, Homa Bay County. That she arrived at the rural home in the evening but was harassed and denied entry by a caretaker employed by the Respondent.

10. The Applicant went on to aver that she was forced to seek the help of the local Assistant chief in order to gain access to her own matrimonial home. She accuses the Advocate representing the Respondent of coming to the home on 21st December 2021, where he proceeded to insult her. That on 3rd January 2002 the Respondent came to the rural home with the same Advocate in tow accompanied by armed thugs. That they forcefully evicted the Applicant from the house during which process she lost several personal documents and items. She alleges that these items were ‘stolen’ by the Respondents Advocate.

11. The Applicant now seeks orders to allow her unlimited access to all the matrimonial properties and prays that orders be made directing the OCS of the nearest Police Stations to ensure that the orders are obeyed. Further the Applicant prays that orders be made directing the Respondent and his Advocate to return her missing items

12. As stated earlier this application was opposed by the Respondent. The Respondent firstly challenged the signature appearing on the supporting affidavit dated 4th February 2022 alleging that the same is not the signature of the Applicant. Secondly, the Respondent urges the court to expunge the annextures (photographs) annexed to said Supporting Affidavit as the same do not comply with the Evidence Act Cap 80 Laws of Kenya.

13. The Respondent avers that there has been a change in the circumstances of the parties as he has filed for divorce therefore there no longer exists unbroken coverture between the parties. As it transpires the Applicant has also filed a suit in Texas, USA seeking to dissolve her marriage to the Respondent.

14. The Respondent denies that the properties in question including the rural home constitute ‘matrimonial property’ and thus the Applicant cannot demand unlimited access to the same as said properties are registered in his name.

15. The Respondent denies the Applicants claims that she was harassed and was forcefully evicted form the rural home. He denies all knowledge of her alleged missing items. Finally, the Respondent states that the Applicant has already travelled back to the USA where she resides, thus she is not entitled to the orders she seeks.

Analysis and Determination 16. I have considered the application filed before this court, the Replying Affidavit filed by the Respondent as well as the written submissions filed by both parties. It is not in dispute that the parties herein were in a legal marital union. However, it is also not disputed that both parties have now sought to have their marriage dissolved. The Respondent states that he has filed a Divorce Cause at the Milimani Court in Nairobi and has also annexed to his Replying Affidavit dated 19th March 2022 a copy of a Divorce Petition filed by the Applicant in the USA (Annexture ‘H0-2’).

17. The Respondent states that the signature on the Applicants supporting Affidavit is not the Applicants signature. He claims that having been married to the Applicant for several years, that he is able to recognize her handwriting and signature. The Applicant on her part asserts that the signature on the supporting Affidavit is hers.

18. The Respondent has not availed any evidence e.g. a report from a handwriting expert to prove that the signature in dispute is not that of the Applicant. The court has no reason to believe that the Applicant did not sign her supporting Affidavit. I therefore dismiss this allegation.

19. The Respondent prays that the annextures to the Applicants supporting Affidavit be expunged as the same have not been attested nor are they marked as required by Rule 9 of the Oaths and Statutory Declaration Act Cap 15, Laws of Kenya. In my view, the failure to mark said exhibits may have been an inadvertent omission. I will rely on Article 159 (2) (d) of the Constitution of Kenya which exhorts courts to administer substantive justice without undue regard to technicalities.

20. Secondly, the annexed (unmarked) photographs depict scenes of the alleged harassment and eviction of the Applicant from the rural home in Mbita. The Respondent has not denied that some altercation occurred at the rural home. Indeed at Paragraph 30 of his Replying Affidavit the Respondent states that he and his Advocate did travel to the rural home during the time the Applicant was there. He admits that he asked the Applicant to vacate the premises and that “after a long standoff’ the Applicant left the premises. This is a tacit admission that some altercation did occur as is depicted in the un-marked photographs. In his Replying Affidavit the Respondent regrets the fact that the Applicant may have felt harassed by his caretaker. The Respondent however denies any involvement in the said harassment, eviction and/or theft of the Applicants belongings.

21. The Applicant is seeking orders to allow her unlimited access into the matrimonial properties. This prayer is premature as there has been no declaration from any court regarding which properties constitute matrimonial property. That is an issue, which can only be determined at the hearing of the main suit.

22. The Respondent has averred (which averment has not been denied) that the matrimonial properties are registered in his name. In view of the fact that both parties have now filed suits seeking to dissolve their marriage then until a declaration is made regarding what constitutes matrimonial property, the court cannot direct that the Applicant be granted free access to properties which are registered in the name of the Respondent. As stated earlier the determination of what constitutes matrimonial property can only be made after hearing both parties.

23. Secondly aside from the rural home in Mbita the Applicant has not given specifics of any of the other properties she is seeking to access. Court orders must be specific. The court cannot give orders in respect of properties which have not been identified. Which police stations would then be expected to enforce the orders?

24. Thirdly, the Applicant is no longer in Kenya. She has returned to the USA where she resides and works. Obviously, the Applicant cannot access properties in Kenya whilst she is residing the USA. The court cannot make orders on the off chance that the Applicant may decide to visit Kenya. Following the return of the Applicant to her residence in the USA I find that this prayer is now spent.

25. The Applicant claims that certain of her properties were taken away by the Respondents Advocate. She prays for orders that the listed items be returned to her. This is a Probate Court not a Criminal court. No evidence has been adduced regarding the loss of said items much less who took them. If the Applicant feels that she has been unlawfully relived of certain of her properties then she ought to have made a report to the police who have the mandate to investigate her complaint and to charge any person found by the police to be culpable.

26. Finally based on the foregoing I find no merit in this application. The same is dismissed in its entirety. Each party to pay its own costs.

DATED IN NAIROBI THIS 1ST DAY OF JULY 2022. ..........................................MAUREEN A. ODEROJUDGE