[2018] KEHC 9353 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

HIGH COURT CIVIL CAUSE NO. 80 OF 2017

GRACE WAMAITHA ................1ST APPLICANT

ANDREW GITHIGA ............... 2ND APPLICANT

ROBERT KINGA......................3RD APPLICANT

MARY MUTHONI ...................4TH APPLICANT

VERSUS

JOSIAH WANJOGI...............1ST RESPONDENT

ELIZABETH KIBIRU..........2ND RESPONDENT

RULING

1. The applicants are children of the 1st respondent with his first wife who died on 1st July 2016. The 2nd respondent is the 1st respondent’s second wife and the step mother of the applicants. On 21st December 2017 the applicants filed a plaint seeking to protect the matrimonial home left by their late mother with they claimed the 1st respondent had brought the 2nd respondent into. The home is on land parcel Ruiru/East/Block 1/2189 which they claimed the deceased contributed to its purchase. Along with the plaint was summons under sections 7, 14 & 17 of the Matrimonial Property Act No.49 of 2013 seeking orders to restrain the 2nd respondent from accessing, interfering with the arrangement or in any way tampering with any item of the property and to restrain the respondents from interfering with their right to access and/or enjoy the peaceful possession of the matrimonial home pending the hearing and determination of the suit filed herewith. The application was based on the grounds that Ruiru/East/Block 1/2189 was the matrimonial home of the 1st respondent and his late first wife; that the property was jointly acquired by the 1st respondent and their mother; that they financed the construction and development of the property on the basis that the same would always be the family’s bonding point; that since the passing on of their mother, the 1st respondent has since married the 2nd respondent who has been accessing the bedroom which was used by the 1st respondent and their late mother and interfering with the personal effects and arrangements not only in the said room but in the family and matrimonial home hence causing tension, making it difficult for them to access their home, causing conflict between them and their father and interfering with the good memories of their late mother; and that the 1st respondent is in the process of demarcating the property yet the property cannot be subdivided. The application was supported by the affidavit of the 1st applicant dated 21st December 2017 which affidavit reiterated the facts above.

2. The application was opposed by the replying affidavit of the 1st respondent dated 12th February 2018. It was his case that he worked as a banker with National Bank from 1970 up to 1999 when he retired; that he bought a house in Buruburu where he resided with his family but later sold the house after he retired and used the proceeds to purchase Ruiru/East/Block 1/2189 and to build his home where he retired with his family; that he lost his 1st wife on 1st July 2016 and not 2017 as claimed by the applicants; that after he lost his wife, he stayed alone for one year and later decided to look for and marry another wife whom he married on 14th November 2017, one and a half years after the death of his first wife; that from the time he married his 2nd wife, he has received a lot of disrespect and animosity from his children, the applicants herein, who have even been making claims over his property Ruiru/East/Block 1/2189 which is registered in his name; that the house claimed by the applicants as their matrimonial home is his home which he built with his own money and sweat and any personal effects that belonged to their mother now belong to him by right on priority basis over anybody else; that the applicants have absolutely no claim over his parcel of land and over his other assets as they did not contribute in any way towards purchasing them; that the applicants should respect him as their biological father and respect his constitutional right to own and enjoy property and to marry whoever he chooses; that he is still alive and the applicants should be aware that they are not dealing with his estate; and that the 1st applicant is illegally in possession of his title documents, assets and his late wife’s personal belongings which by law belong to him and should be compelled by the court to return them to him.

3. The respondents also filed a notice of preliminary objection dated 12th February 2018 in which they basically contended that the applicants, not being the 1st respondent’s wife and not having contributed to the acquisition or development of the property, have no locus standiand cause of action against the respondents.

4. Parties filed their written submissions which I have considered.

5. The plaint and summons were filed under sections 7, 14and17 of the Matrimonial Property Act No. 49 of 2013. The Matrimonial Property Act was enacted –

“to provide for the rights and responsibilities of spouses in relation to matrimonial property and for connected purposes.”

In section 2 of the Act a “spouse”

“means a husband or a wife.”

“Matrimonial property” under sections 2 and6 of the Act means property, whether movable or immovable, that is jointly owned and acquired during the subsistence of the marriage between a husband and wife. The property may be registered in the joint names of the spouses, or may be registered in the name of one of them. It includes matrimonial home or homes, and household goods and effects.

6. The applicants are children of the 1st respondent by his deceased wife. They are not a wife or a spouse in relation to him. The matrimonial home they are laying claim to belonged to the 1st respondent and his late wife. They have no cause of action against the 1st respondent, and neither can they move against him in relation to the said home. They have no capacity under the Matrimonial Property Act to make a claim against the respondents, or any of them.

7. If they seek to bring the suit over the estate of their deceased mother, they would have, first of all, gain capacity after taking out letters of administration in regard to her estate (Trouistik Union International & Another –v- Jane Mbeyu & Another [1993]eKLR). They did not plead that they have taken out letters.

8. On the merits of the application, the 1st respondent is the registered owner of Ruiru/East/Block 1/2189 on which the matrimonial home is built. Under section 26(1)of theLand Registration Act (Cap No. 3 of 2012) the title of a registered proprietor of land is prima facie evidence that the proprietor is the absolute and indefeasible owner of the land, subject to any encumbrances, easements, restrictions, and cautions contained or endorsed in the certificate. It is not usual to issue an interlocutory injunction against a registered proprietor of land who is in possession. On the facts of the case, the applicants have not shown that they have a prima facie case against the respondents.

9. In conclusion, I strike out the cause by the applicants against the respondents because of lack of capacity to sue and because they have no cause of action. Costs will be borne by the applicants.

DATED and DELIVERED at NAIROBI this 26TH day of JULY 2018

A.O. MUCHELULE

JUDGE