[2019] KEHC 11920 (KLR)
The court found that both parties had enforceable monetary judgments against each other: the applicant owed the respondent Kshs.3,305,525 for matrimonial property, while the respondent owed the applicant Kshs.1,041,700 in child maintenance arrears. Rather than require each party to pursue separate execution...
Source-derived case information.
- Citation
- [2019] KEHC 11920 (KLR)
- Parties
- Applicant: FNK; Respondent: PWW
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 32 of 2010
- Procedural Posture
- Civil Suit / Ruling on Application for Set Off After Judgment on Matrimonial Property
- Outcome
- application for set-off allowed, subject to payment within 90 days
- Judges
- AO Muchelule
- Legal Topics
- Matrimonial Property Distribution, Set Off of Judgments, Child Maintenance Arrears
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
FNK
Applicant
PWW
Respondent
Procedural Posture
Civil Suit / Ruling on Application for Set Off After Judgment on Matrimonial Property
Legal Issues
- 1 Whether the applicant is entitled to set off the amount owed to the respondent for matrimonial property by the amount the respondent owes in child maintenance arrears.
- 2 Whether it is just and efficient to allow set-off instead of separate execution proceedings.
Ratio Decidendi
The court found that both parties had enforceable monetary judgments against each other: the applicant owed the respondent Kshs.3,305,525 for matrimonial property, while the respondent owed the applicant Kshs.1,041,700 in child maintenance arrears. Rather than require each party to pursue separate execution proceedings, the court held that it was just, efficient, and a proper use of judicial resources to allow the applicant to set off the maintenance arrears against the amount owed for matrimonial property. The court relied on the principle that set-off is permissible even where the claims are independent, as long as it serves the interests of justice and efficiency. The respondent's...
Court Disposition
application for set-off allowed, subject to payment within 90 days
Orders
- The applicant shall pay to the respondent Kshs.2,263,825, being Kshs.3,305,525 less Kshs.1,041,700 in maintenance arrears.
- Payment shall be made within 90 days from the date of the ruling.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
CIVIL SUIT NO. 32 OF 2010 (O.S)
FNK..........................................................................................APPLICANT
-VERSUS-
PWW.....................................................................................RESPONDENT
RULING
1. The applicant and the respondent got married under Kikuyu customary law in 1994. On 20th December 2001 the marriage was solemnized under the African Christian Marriage and Divorce Act (now repealed). The marriage was blessed with two issues. Following a petition filed by the applicant, the marriage was dissolved.
2. The respondent filed an originating summons to determine the matrimonial property acquired between them. In a judgment delivered on 26th September 2014 the court determined that LR No. […..] Kahawa Sukari and motor vehicle Toyota Spacio registration number KAY […]J were matrimonial properties between them. It was found that the applicant’s contribution to the acquisition of the land was 75% and the respondent’s contribution was 25%. For the vehicle, each party’s contribution was 50%. The properties were valued. At the end of the day, it was ordered that the applicant pays to the respondent Kshs.3,305,525/= in respect of the properties.
3. It is not disputed that there were proceedings between the parties for maintenance of the children. The proceedings were in children case No. 605 of 2009 at Nairobi filed by the applicant. On 21st January 2010 the respondent was ordered to pay Kshs.10,000/= per month being maintenance. It was pleaded by the applicant, and not denied by the respondent, that the latter fell into default in regard to the payment of the maintenance, and that, as matters stand, a total of Kshs.1,041,700/= is outstanding. Evidence of a notice to show cause why the respondent should not be sent to civil jail for non-payment was annexed to the present application.
4. The application dated 15th November 2018 was filed by the applicant seeking that she be allowed to pay to the respondent Kshs.3,305,525/= less the Kshs.1,041,700/= that the respondent owes her in maintenance of their children. It is evident that the respondent has demanded from her the Kshs.3,305,525/=. This application for set-off was brought under Order 7 rules 3 and 4, Order 22 rule 22 and Order 45 of the Civil Procedure Rules and sections 1A, 3A and 63(e) of the Civil Procedure Act.
5. The response was that the applicant is a wealthy lady, a consultant with the World Bank and earning over Kshs.1,000,000/= monthly, and the suit property has a tenant who pays Kshs.45,000/= per month which she has not accounted for. He claimed to be unemployed, and that the applicant is bent on harassing and intimidating him. These allegations, I find, do not go to the substance of the application for set-off.
6. On the facts on record, I find that, instead of the parties prosecuting separate execution proceedings to recover the money owed by one party against the other, it is just, efficient and timely use of court’s and the parties’ resources to allow the set-off, even considering that the two claims were independent of each other (County Government of Kilifi –v- Mombasa Cement Limited [2017]eKLR). I consequently allow the applicant to pay to the respondent Kshs.3,305,525/= less Kshs.1,041,700/=, which comes to Kshs.2,263,825/=.
7. I consider that the Kshs.2,263,825/= has remained unpaid since 23rd October 2018. I ask that the payment be done within 90 days, failing which the present application shall be deemed to have been dismissed.
8. I do not make any order as to costs.
DATED and DELIVERED at NAIROBI this 7TH NOVEMBER 2019
A.O. MUCHELULE
JUDGE