[2010] KEHC 4039 (KLR)
The court found that the applicant acquired the suit property before marriage, and the manner of acquisition (purchase or allocation) was immaterial. There was insufficient evidence to establish the extent of each party's contribution to the development of the property during marriage. In the absence of clear...
Source-derived case information.
- Citation
- [2010] KEHC 4039 (KLR)
- Parties
- Applicant: Esther Wambui Maina; Respondent: Ibrahim Ndwiga
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 165 of 2009
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- suit allowed in part
- Legal Topics
- Matrimonial Property, Division of Property, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Wambui Maina
Applicant
Ibrahim Ndwiga
Respondent
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the suit property acquired before marriage should be considered matrimonial property subject to equal division upon dissolution of marriage.
- 2 Whether either party made a greater contribution to the development of the suit property warranting unequal division.
Ratio Decidendi
The court found that the applicant acquired the suit property before marriage, and the manner of acquisition (purchase or allocation) was immaterial. There was insufficient evidence to establish the extent of each party's contribution to the development of the property during marriage. In the absence of clear evidence of unequal contribution, the court held that both parties are entitled to an equal share of the property. The court directed that the property be valued, and either party may purchase the other's share; failing agreement, the property should be sold and the proceeds shared equally.
Court Disposition
suit allowed in part
Orders
- The suit property shall be valued by a valuer agreed by the parties.
- Either party may purchase the other's share at the determined value.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Suit 165 of 2009
ESTHER WAMBUI MAINA …………….………APPLICANT
VERSUS
IBRAHIM NDWIGA……………………..…….RESPONDENT
JUDGMENT
In this OS, the parties are husband and wife. They solemnized their married on 6th April 1996 at the CPK Cathedral Church, Nakuru. Their marriage was dissolved by a court decree of 3rd October, 2008.
The plaintiff claims the prior to their marriage, she had bought the piece of land situate in Nakuru and known as Title No. Nakuru Municipality/ Block 15/ 350 (the suit property). In the course of their marriage, they jointly constructed a block of flats on it. Now that their marriage has been dissolved, though the construction is incomplete, the plaintiff claims for an order that the suit property be sold and the proceeds thereof be shared equally.
In his replying affidavit, the defendant deridedly asserted that the suit property was allocated to the plaintiff and that she did not buy it as she claimed. He exhibited copies of documents showing that he took a loan from Barclays Bank of Kenya Ltd with which he claimed he developed the suit property. In the circumstances he urged the court to dismiss the plaintiff’s claim.
The parties did not testify. Their respective counsel asked me to decide the matter on the affidavit evidence on record.
I have considered the averments in the affidavits in support of and in opposition to the OS. It is common ground that the plaintiff acquired the suit property prior to marrying the defendant. Whether she bought it or it was allocated to her is immaterial. The fact is that she owned it before they married.
Though the documents annexed to his replying affidavit show that at some stage the defendant obtained some banking facility from his bank, there is nothing to show that he spent the amount or part of it to construct the flats on the suit property. It is therefore not clear what contribution each party made to the construction. In the circumstances, I hold that the parties have an equal share of the suit property. I therefore direct that the property be valued by a valuer agreed by the parties and either party do purchase the other’s share failing which the same be sold in the open market and the parties share equally the proceeds thereof. Each party shall bear its own costs of this suit.
DATED and delivered this 21st day of January, 2010.
D.K. MARAGA
JUDGE.