[2022] KEHC 13690 (KLR)

JRN v ENN alias EM (Civil Appeal E007 of 2021) [2022] KEHC 13690 (KLR) (4 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13690 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E007 of 2021

LM Njuguna, J

October 4, 2022

Between

JRN

Applicant

and

ENN alias EM

Respondent

Judgment

1. The plaintiff brought this suit by way of an originating summons against the respondent seeking determination of the following issues;i)That the honourable court be pleased to issue a declaration that all the under listed properties which are registered in the name of the respondent are jointly owned by the applicant and respondent:a)Title number Kagaari/Gitare/Txxxx.b)Title number Kagaari/Kigaa/xxxx.c)Title number Kieni/Mufu/xxxx.d)Matrimonial home situated on title number Kieni/Mufu/xxxxe)That the honourable court be pleased to distribute the foresaid properties in equal shares between the applicant and the respondent.i)That the honourable court be pleased to grant such other and/or further relief that may deem just.ii)That the cost of this application be provided for.

2. The originating summons is supported by the applicant’s affidavit dated August 2, 2021.

3. The respondent filed a replying affidavit sworn on August 16, 2021 and wherein he deposed that the applicant deserted her matrimonial home from the year 2004 and was adamant that she would never go back to her matrimonial home. That the applicant has come to this court with untidy hands with an intent to mislead this court when she seeks for the prayers sought in the originating summons;

4. He deponed that he solely owns the suit lands given that he purchased the same and further that he enrolled the applicant to Eregi Teachers College where she was wholly dependent on him for the college fee and general up keep and so she was not in a position to contribute either financially or in kind towards the acquisitioning of the properties. That, in any case, the applicant was in college and he was left taking care of their first born son who at that time was nine months. It was his case that he bought LR No Kagaari/Kigaa/xxxx measuring 0. 60 ha and the title deed issued on August 4, 1981 and the same is solely registered under his name. That during this time, the applicant had just completed college and was still depending on the respondent given that she had attained a referral in her exams and so was earning a paltry amount of Kshs 782/= while the respondent was fully providing for the family.

5. That the said LR Kagaari/Kigaa/xxxx was as a result of sub division ofLR Kagaari/Kigaa/xxxx after disposing part of the said parcel to another party with spousal consent given in form of a letter by the applicant as she was travelling to Mombasa during that time. He further deponed that he sustained serious long term injuries and due to the need for funds, he disposed part of LR Kagaari/Kigaa/ xxxx out of necessity as they were not in good terms with the applicant. That he acquired a loan from teachers sacco in the year 1984 as the same could be evidenced from the pay slips annexed. He reiterated that the alleged matrimonial home in LR Kyeni/Mufu/xxxx was constructed some years after the applicant had left the matrimonial home. That the applicant should be content with the salary and pension she receives given that the same emanated from his labour. In the end, he urged this court to disallow the orders sought and averred that should the same be allowed, he will suffer irreparably.

6. Directions were given that the matter proceed by way of viva voce evidence of which the parties filed their respective statements including witness statements.

7. The applicant in her submissions came up with three issues for this court to determine. Whether the suit properties constitute matrimonial property; the applicant submitted that LR Kagaari/Gitare/Txxxx, Kyeni/Kigaa/xxxx and Kagaari/ Kigaa/xxxx were acquired during the subsistence of the marriage and as such, the same constitutes matrimonial property. Reliance was placed on section 6 of the Matrimonial Property Act. In reference to whether the applicant contributed towards the acquisition and development of the matrimonial property, it was submitted that the applicant was in a gainful employment as a primary school teacher and further that, the applicant in terms of monetary contribution, a mother’s contribution in a home cannot be quantified in that it is the duty of a mother to ensure the home runs smoothly, all the needs of the children and the husband are catered for. Reliance was placed on section 2 of the Matrimonial Property Act. In regards to whether the applicant is entitled to an equal share or such higher portion of the matrimonial property, it was submitted that the three properties having been registered in the name of the respondent, does not mean that the properties belong to him. Reliance was placed on the case of Echaria v Echaria (2001) eKLR in that the applicant herein had proved that indeed she contributed both directly and indirectly towards the acquisition of the said properties.It was her submission that she is entitled to the matrimonial property acquired during the subsistence of the marriage and therefore urged this court to grant the orders as sought.

8. The respondent submitted that he was married to the applicant and that the marriage was dissolved on February 9, 2021 and that they were blessed with four issues of marriage. He submitted that the applicant does not deserve any of the mentioned properties for the reason that she did not contribute in any way towards the realization of the same. The respondent submitted that even if the applicant was eventually employed, her salary could not allow her to acquire any loan. It was his submissions that the construction of matrimonial home started from the year 2007, four years after the applicant had deserted and as a result, it is insincere for her to lay claim on the same. He attached receipts to support his claims. He reiterated that the applicant is being insincere by alleging that the respondent solely and unlawfully sub-divided LR Kagaari/Kigaa/xxxx to LR Kagaari/Kigaa/xxxx and xxxx and fraudulently sold LR Kagaari/Kigaa/xxxx which the respondent purchased in 1984 and later subdivided to LR Kagaari/Kigaa/xxxx in 2001, which was part of the original Kagaari/Kigaa/xxxx sold ½ an acre with the full knowledge and participation of the applicant. That it was out of necessity that he sold Kagaari/Kigaa/xxxx. In the end, he prayed that the orders sought in the originating summons be disallowed.

9. I have considered the application, the replying affidavit, viva voce evidence on record and the submissions by the parties herein. In my view, this court has been called upon to determine whether the orders sought herein can be granted.

10. This case revolves around the application of article 45(3) of the Constitution as read with section 7 of the Matrimonial Property Act, 2013. The former provides that:Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.

11. What I understand by this provision is that parties to a marriage do not lose their rights merely because they have entered into a matrimonial union but they continue to enjoy equal rights at the time of the marriage, during the marriage and at the termination of the marriage.

12. Section 6 of the Matrimonial Property Act defines ‘matrimonial property’ as:(a)the matrimonial home or homes;(b)household goods and effects in the matrimonial home or homes; or(c)any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.

13. Under section 2 of the Act, ‘matrimonial home’ has been defined as:-Any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property.

14. In the case of TMV v FMC (2018) eKLR, Nyakundi J formed the view that:-“…for property to qualify as matrimonial property, it ought to have been acquired during the subsistence of the marriage between the parties unless otherwise agreed between them that such property would not form part of matrimonial property.”

15. Similarly, in the case of Paul Kagwa v Jackline Muteteri (Matrimonial Cause-2005/23) [2006] UGHC 17 (18 May 2006) while citing Bossa, J in John Tom Kintu Mwanga v Myllious Gafafusa Kintu (divorce appeal No 135 of 1997) (unreported) Mwangusywa J expressed himself as hereunder:-“On the last issue of whether the petitioner is entitled to matrimonial property, I clearly believe that she does and I so hold. Matrimonial property is understood differently by different people. There is always that property which the couple chose to call home. There may be property which may be acquired separately by each spouse before and after marriage…. The property to which each spouse is entitled is that property which the parties choose to call home and which they jointly contribute to.”

16. In this case, the defendant has submitted that the properties as listed by the applicant do not constitute matrimonial property since he acquired the same single handedly and further paid the loan by himself. As such, this court has been urged to find so. In my view, the fact that the property was acquired through a loan, the same does not tie this court’s hand to order for an appropriate share between the parties if this court is convinced that the parties contributed towards the realization of the properties and the same were acquired during the subsistence of their marriage.

17. It is not in dispute that the applicant got married to the respondent on January 7, 1978 but the marriage was dissolved by court on February 9, 2021. It is also not in dispute that they have four (4) issues of marriage while the suit property was purchased in the year 1975. I adopt the holding of Kemei, J in ENN v SNK [2021] eKLR that a matter regarding division of matrimonial property ought/shall have the following facets proved by either party:-a)The fact of a valid, legal, regular marriage in law;b)Dissolution of such marriage by/through an order of the court;c)That earmarked/listed property constitutes matrimonial property; acquired and developed during subsistence of the marriage;d)Contribution by each party to the acquisition/ development.

18. A similar view was adopted inPOM v MNK (2017) eKLR where the court appreciated that:“This is a suit for division of matrimonial property. The legal regime governing such endeavor is the Matrimonial Property Act, Act No 49 of 2013. The relevant provisions are to be found in part iii thereof. According to those provisions, in particular section 7, such property is to be divided upon divorce or dissolution of the marriage. The prerequisites are that the parties ought to have been in a marriage, to have had acquired matrimonial property during coverture and for their marriage to have been dissolved as at the point orders on division of matrimonial property are being made. A party, who moves the court for orders relating to division of matrimonial property, or declarations thereon, must strive to bring his case within the prerequisites stated above.”

19. Section 14(b) of the Matrimonial Property Act provides that:-Where matrimonial property is acquired during marriage—(b)in the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal.

20. However, section 7 of the Matrimonial Property Act, provides as follows:Ownership of the matrimonial property vests in the spouses according to the contribution of other spouse towards its acquisition and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.

21. Based on section 7 aforesaid, it is my understanding that where the contribution towards the acquisition of matrimonial property can be identified, in the event of divorce or dissolution of the marriage, the said property will be divided between the spouses in accordance with their respective contribution towards the acquisition. In that event, there is no presumption of 50:50 ownership of the said property. In my view, the 50:50 presumption is only to be invoked where there is evidence that both spouses contributed towards the acquisition of the property and there is no way of determining each spouse’s contribution thereto. It is in that light that I understand the position in Falconer v Falconer[1970] 3 All ER where Justices of Appeal held that:‘‘And the principles applicable to whether a matrimonial home standing in the name of the husband belonged to them both jointly (in equal or unequal shares) were that the law imputed to the husband and the wife an intention to create a trust for each other by way of inference from their conduct and the surrounding circumstances; an inference of trust would be readily drawn when each had made a substantial financial contribution was stated to be such or indirectly as where both parties went out to work and one paid the housekeeping and the other paid the mortgage instruments; but whether the parties held in equal shares would depend on their respective contributions.’’

22. It is however clear that contribution need not necessarily be in financial terms since according to section 2 of Matrimonial Property Act, 2013:“Contribution” means monetary and non-monetary contribution and includes—(a)Domestic work and management of the matrimonial home;(b)Child care;(c)Companionship;(d)Management of family business or property; and(e)Farm work.

23. The applicant testified that when she got married on January 7, 1978, she was a housewife but later joined teacher’s training college in May, 1978 for two years. That she got employed in the year 1990 and that LR Kagaari/Gitare/Txxxx was bought in the late 1989 and that during that time she went to college, she left their first born child under the care of the respondent. She conceded that LR Kagaari/ Gitare Txxxx was acquired while she was still in college but during the holiday, she used to take care of the family; LR Kagaari/Kigaa/xxxx was bought early 1981 or thereabouts and by then, she was earning a salary of Kshs 990/= and that she contributed an amount ofKshs 6,000/= towards the realization of the same. That Kyeni/Mufu/xxxx was bought in 1984 and it cost Kshs 23,000/= and she contributed aboutKshs 10,000/= towards the realization of the said land. It was her statement that the said properties were registered in the name of the respondent for the reason that during that time, properties were being registered in the name of the men. She reiterated that the matrimonial home was built in the year 1994 and that she contributed about Kshs 800,000/= towards the building of the same. She conceded that part of LR Kagaari/Kigaa/xxxx was sold so that they could realize school fees for their children.

24. It follows that, there is no rule of thumb that in the event of a divorce, the property must be shared in the ratio of 50:50. That, each case must be decided on its own facts was appreciated by the Court of Appeal in TKM v SMW[2020] eKLR where it stated as follows:“We bear in mind the edict in Muthembwa v Muthembwa(2002) 1 EA 186, and many other decisions reminding the courts that in assessing the contribution of spouses in acquisition of matrimonial property, each case must be dealt with on the basis of its peculiar facts and circumstances but bearing in mind the principle of fairness.”

25. It was therefore held inFederation of Women Lawyers Kenya (FIDA) v Attorney General &another [2018] eKLR that:-“The law recognizes equal worth and equal importance of the parties in marriage. Thus, the beneficial share of each spouse as the law on the division of matrimonial property stands in Kenya ultimately depends on the parties proven respective proportions of financial contribution either direct or indirect towards the acquisition of the property. First, the Act recognizes monetary and non-monetary contribution which is clearly defined. By providing that a party walks out with his or her entitlement based on his or her contribution, the section entrenches the principle of equality in marriage.”

26. It follows from the foregoing that, despite the constitutional requirement that parties in a marriage have equal rights, each party must be able to prove either contribution was monetary or non-monetary lest a party will not be entitled to any share in the matrimonial property. The onus squarely falls on the party who alleges contribution to prove such contribution in the acquisition of the subject property, be it monetary or non-monetary contribution. Accordingly, it is my view that even monetary contributions ought not to be simply pegged on documentary evidence but on any viable proof that this court may find irrefutably convincing. The court may, based on the evidence presented before it be able to ascertain whether or not there was in fact any monetary contribution which was due to the fact that the spouses never contemplating that the marriage would go south, never documented.

27. In this case, it is not in doubt that the parties herein were blessed with four children and that aside, it is not disputed that they were both teachers thus engaging in a gainful employment albeit the applicant getting employed later on in the day. Of importance to note is the fact that the parties herein cohabited together prior to them solemnizing their marriage in the year 1978. The parties herein agree that thereafter the applicant was registered at Eregi Teachers College and that the college fee was paid by the respondent. The parties also concede to the fact that during that time, they had their first born who was left under the care of the respondent. In reference to LR Kagaari/ Gitare/Txxxx, the same from the evidence on record was acquired and then transferred to the respondent herein in the year 1979. In reference to LR Kagaari/Kigaa/xxx , the same from the record shows that it was transferred into respondent’s name on August 1, 2001 although the parties agree that they sold a part of the same to realize fee for their children’s school fee.

28. In reference to LR Kyeni/Mufu/xxxx the same was transferred to the respondent in the year 1984; and this is where the parties herein established their matrimonial home. The parties have conceded to the fact that this is where they lived as a family. The respondent has further submitted that the applicant deserted the home sometime in the year 2004 and that he solely worked towards improving the said home. That the applicant was earning a paltry amount and that she could not have made contributions towards the acquisition of the said land.

29. In civil appeal No 142 of 2018 in CWM v JPM [2017] eKLR, the Court of Appeal recognized this reality and held as follows:“...parties are of equal worth and human dignity, whatever their station in life. To the issue before us, it is obvious the appellant having been married for 18 years made some contribution to the family of respondent at the time of such overture. In our view, that contribution, be it domestic work and management of the matrimonial home, child care or companionship falls within the definition of contribution under the Act".[see alsoWhite v White (200) UKHL 54 and Miller v Miller & McFarlane{2006} UKHL 24].

30. In reference to the evidence before this court, it is not in dispute that both the applicant and respondent were in gainful employment. In my view, all the parties herein made direct and indirect contributions towards the realization of some of the properties they realized during their marriage and therefore, I find that both parties made both monetary and non- monetary contributions towards the purchase and development of the said properties.

31. But of importance to note is the fact that the applicant when she deserted the respondent, the respondent continued improving the said matrimonial home as evidenced in the receipts annexed as exhibits. Therefore, it is my view that this court should take note of the same to the benefit of the respondent.

32. In the above premises, I therefore make the following orders:a)A declaration that the property known as LR Kagaari/Gitare/Txxx registered in the name of the respondent is a matrimonial property to be shared in the ratio of 60:40 in favour of the respondent.b)A declaration that LR Kagaari/Kigaa/xxxx is a matrimonial property and the remnant of the same be shared in the ratio of 50:50. c)That LR Kyeni/Mufu/xxxx registered in the name of the respondent is a matrimonial property and the same to be shared equally but net of improvements caused by the respondent has been determined.

33. Each party to bear its own costs of the summons.

34. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 4TH DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE…………………………………………..…..for the Applicant…………………………………………….for the Respondent