[2012] KEHC 3233 (KLR)
The court determined that the correct order to be extracted must give effect to both the High Court decree and the Court of Appeal's judgment, ensuring the applicant receives her 50% share in the subject properties. The process for valuation must be fair and transparent, requiring the parties to agree on a mutually...
Source-derived case information.
- Citation
- [2012] KEHC 3233 (KLR)
- Parties
- Plaintiff: Eunice M. Kyalo; Defendant: Cosmas K. Muthembwa
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 2562 of 1994
- Procedural Posture
- Civil Suit / Post Judgment Enforcement Ruling
- Outcome
- Orders issued for appointment of valuer, terms of reference, and further directions for enforcement of property division.
- Judges
- A Mabeya
- Legal Topics
- Enforcement of Judgments, Division of Matrimonial Property, Valuation of Property, Appointment of Experts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice M. Kyalo
Plaintiff
Cosmas K. Muthembwa
Defendant
Procedural Posture
Civil Suit / Post Judgment Enforcement Ruling
Legal Issues
- 1 What is the correct form of the order to be extracted from the court's previous ruling and the Court of Appeal judgment regarding division of property?
- 2 How should the valuation of the subject properties be conducted and by whom?
- 3 What are the terms of reference for the appointed valuer, particularly regarding income and liabilities since cohabitation ceased?
Ratio Decidendi
The court determined that the correct order to be extracted must give effect to both the High Court decree and the Court of Appeal's judgment, ensuring the applicant receives her 50% share in the subject properties. The process for valuation must be fair and transparent, requiring the parties to agree on a mutually acceptable valuer within 15 days, or, failing agreement, for the Deputy Registrar to appoint one. The terms of reference for the valuer must specifically account for the respondent's exclusive use of the applicant's share since December 1992, entitling the applicant to 50% of the income generated from her share, with liabilities remaining the respondent's responsibility. This...
Court Disposition
Orders issued for appointment of valuer, terms of reference, and further directions for enforcement of property division.
Orders
- The parties to agree on the appointment of a mutually acceptable valuer within 15 days to value the specified properties and file valuation reports within 45 days.
- The valuer's terms of reference to be drawn jointly by counsel, with special note that the respondent has been utilizing the applicant's share since December 1992 and owes her 50% of the income made to her exclusion, while liabilities remain his responsibility.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATNAIROBI
CIVIL SUIT 2562 OF 1994
EUNICE M. KYALO………….…………..........…………………………… PLAINTIFF
VERSUS
COSMAS K. MUTHEMBWA ………….……………………………….. DEFENDANT
R U L I N G
On 25th November, 2011, the Hon. Justice Mugo delivered a ruling in this matter meant to give effect to the decree of this court made on 2nd July, 1999 and the Court of Appeal judgment in C.A No. 74 of 2001 delivered on 19th April, 2002 wherein the Applicant was awarded 50% share in the properties the subject matter of the suit.
The parties have failed to agree on the correct version of the order to be extracted from that ruling.
I have carefully read the ruling of Hon. Mugo J and considered the two versions of the orders proposed by the parties, I have come to the conclusion that the correct order from the said ruling should be as follows:-
(1)THATthe parties do proceed to agree on the appointment of a mutually acceptable valuer within the next 15 days, who will undertake valuation of the properties specified in this application and to file appropriate valuation reports in court within 45 days of this order.
(2)THATthe Valuer’s terms of reference be drawn jointly by Counsel with special note being taken of Order 2 of the decree which is relevant because the Respondent has been utilizing the applicant’s share of the property since cohabitation ceased in December 1992 and he owes her 50% of the income he has made to her exclusion while any liabilities remain his responsibility.
(3)THATonce the Valuations are filed parties do mention the matter before the Deputy Registrar, Commercial Division for further orders.
(4)THATin the event the parties are unable to agree on a Valuer, the Deputy Registrar do proceed to appoint one and to draw his terms of reference in accordance with the judgment of the High Court as varied by the Court of Appeal.
(5)THATcosts of this application be in the cause.
Order number two is deliberately explanatory for the reason that, that explanation has an effect on the valuation and end result thereof. That was the intention of the court and I hereby give effect to its intention.
Orders accordingly.
DATED and Delivered at Nairobi this 13th day of July, 2012.
…………..…………………………
A. MABEYA
JUDGE