[2009] KEHC 154 (KLR)
The court found that both parties had agreed to a 50:50 apportionment of the matrimonial property but could not agree on its value. After reviewing the two conflicting valuation reports (Ksh. 2.3 million and Ksh. 6 million), the court determined that the lower valuation was a gross undervaluation and the higher...
Source-derived case information.
- Citation
- [2009] KEHC 154 (KLR)
- Parties
- Applicant: GWK; Respondent: JEGW
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 2 of 2006
- Procedural Posture
- Divorce Cause / Post Judgment Application for Distribution of Matrimonial Property
- Outcome
- Application for distribution of matrimonial property allowed; property valued at Ksh. 4 million and to be apportioned 50:50 between the parties.
- Judges
- J Karanja
- Legal Topics
- Matrimonial Property Distribution, Valuation of Matrimonial Assets, Apportionment of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
GWK
Applicant
JEGW
Respondent
Procedural Posture
Divorce Cause / Post Judgment Application for Distribution of Matrimonial Property
Legal Issues
- 1 What is the fair value of the matrimonial property (Plot No.[Particulars Withheld]) for purposes of distribution between the parties?.
- 2 What is the appropriate apportionment ratio for the matrimonial property between the parties?.
- 3 What procedure should be followed if neither party is able to pay the other for their share of the property?.
Ratio Decidendi
The court found that both parties had agreed to a 50:50 apportionment of the matrimonial property but could not agree on its value. After reviewing the two conflicting valuation reports (Ksh. 2.3 million and Ksh. 6 million), the court determined that the lower valuation was a gross undervaluation and the higher figure was excessive. The court exercised its discretion to adopt a fair average, rounding the combined valuations to Ksh. 8 million and setting the property's value at Ksh. 4 million. Each party is entitled to half of this value. The respondent, currently residing on the property, is given the option to pay Ksh. 2 million to the applicant within 120 days to retain the property. If...
Court Disposition
Application for distribution of matrimonial property allowed; property valued at Ksh. 4 million and to be apportioned 50:50 between the parties.
Orders
- The matrimonial property (Plot No.[Particulars Withheld]) is valued at Ksh. 4 million.
- Each party is entitled to a 50% share of the property value.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Divorce Cause 2 of 2006
IN THE MATTER OF AFRICAN CHRISTIAN MARRIAGE AND DIVORCE ACT CAP 151 OF
THE LAWS OF KENYA
AND
IN THE MATTER OF THE MATRIMONIAL CAUSES ACT 152 OF THE LAWS OF KENYA
GWK…………………………………………………………PETITIONER
VERSUS
JEGW…………………………….………………………..RESPONDENT
R U L I N G
The Judgment in this file i.e Divorce Cause No.[PARTICULARS WITHHELD] between the parties herein was rendered by the Honourable Justice Khaminwa on 9/7/2007. She dissolved the marriage between the parties herein, handled the custody issues but ordered that either party may make an application within 30 days thereof for the distribution of the matrimonial property. Counsel for JEGW – the Respondent in the Divorce cause - Joe Kathungu and Co. Advocates filed the application dated 14/9/2007. The parties nonetheless thereafter reached a consent on all the issues raised in that application save for the value of Plot No.[Particulars Withheld]on which stands the matrimonial house. The parties also agreed to apportionment of 50:50 of the matrimonial property in question. I say they agreed because the petitioner agreed on 50:50 but the Respondent said 20:80 or 50:50. So in my view, the property should be shared on 50:50 basis. The matter went to hearing but the parties could not agree on the value of the property in question. Each party engaged a valuer. They both visited the site on separate occasions and compiled reports.
Upcountry valuers who were instructed by JE gave the land in question together with the developments a value of Ksh.6,000,000. Shelter valuers who were contracted by GW arrived at a composite value of 2. 3 million. Both valuers were called to court to be cross-examined on their valuation but each justified his figures. At the end of the day we were left with this huge variance which could not be explained. Both counsel in their written submissions asked the court to appoint an independent valuer but this in my considered view may not solve the problem given that whichever party who is not satisfied with that valuation could challenge the same and we would be back to square one.
I have carefully gone through the 2 reports. I have observed that the report by upcountry valuers was certainly more detailed and the attached photographs have assisted me immensely in arriving at my decision. Even with my limited knowledge in valuation matter, I can with certainty say that the house in question has a value much higher than the 1. 5 m. given to it by shelter valuers. They grossly undervalued the same. What the Respondent may not have realized is that the said valuation would work against him because the court can easily accept that value and order that the property be left to the petitioner who should refund the 50% of the assigned value to the Respondent. He would then not be heard to complain that it was undervalued.
After considering the valuation reports and the able submissions by both counsel, I have come to the conclusion that the 2. 3 m is a gross undervaluation. The 6 million would be on the higher side given the area and the topography. Justice demands that the court arrives at a figure in between the 2 valuations. In my considered view a balance or a near average of the 2 valuations would be fair and just. I will therefore add up the 2 values- which amounts to 8. 3 million, round it off to 8 million which will give us an average of 4 million. This formula is guided purely by solomonic law and has nothing to do with the law in our statutes.
I therefore value the property at Ksh. 4 million – with the apportionment of 50:50 to each party. The Respondent who is said to be living on the property with the so called 2nd wife will therefore pay Ksh.2 million to the petitioner if he wants to remain on the said property. The payment must be made within the next 120 days from the date hereof failing which the petitioner will have the option to pay the 2 million to the former husband if she wants to take the home. If neither of this is possible, then the property will be advertised and sold in the open market by a property agent to be identified by counsel for both parties and the proceeds therefore be shared equally between the two parties.
Each party will bear the costs of this application.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 3rd day of Nov 2009.
In presence of:-Mr.Kathungu for Applicant present
Igati Mwai for Chomba for Respondent present
Petitioner/applicant present.