[2022] KEHC 10566 (KLR)

JTE v EKM (Civil Suit 60 of 2012) [2022] KEHC 10566 (KLR) (17 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10566 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Suit 60 of 2012

PJO Otieno, J

June 17, 2022

Between

JTE

Applicant

and

EKM

Respondent

Judgment

1. The plaintiff has through an Originating Summons filed on 4/4/2012 approached the court seeking an interlocutory order that the respondent be restrained from alienating, encumbering, interfering and/or in any way disposing of Land Parcel Nos. Athiru Ruujine ADJ/SECTION/xxxx, xxxx and Ndoleli Adj/Section/xxxx pending the hearing and determination of this suit and a substantive order that the honourable court does declare that all the immovable property known as Land Parcel Athiru Ruujine ADJ/SECTION/xxxx and xxxx as matrimonial property and order the division of the said property.

2. The grounds put forth in support of the application are on the face of it and the supporting affidavit sworn by the applicant wherein it is stated that she married the respondent in 1977 under Meru Customary Law and their union was blessed with three issues namely JKK, JMK and FBK. During her marriage, she asserts to have been working as a technician at [particulars withheld], while the respondent was an accounts assistant at the same accompany.

3During the subsistence of their marriage, she says, they acquired Plot No.xxxx Athiru Ruujine/Adj/Section, which is their matrimonial home, Plot No.xxxx Athiru/Ruujine/Adj/Section and Plot No. Ndoleli Adj/Section/xxxx.

4. The couple lived together as husband and wife for 8 years until sometimes in 1986 when the respondent married a second wife namely, JK, with whom they have three issues neglected the plaintiff and her children leaving them to fend for themselves and rely on well-wishers. The respondent then chased her and the children away from the matrimonial home, forcing her to relocate to her brother in law’s nearby home where she stayed until her 2 younger boys became of age and on returning back to her matrimonial home, she was astonished to find it occupied by the second wife. She then decided to involve clan members to try and resolve the dispute amicably but the respondent became hostile and declined to attend some of the meetings.

5. During the deliberations by the clan to have the respondent construct another house for the second wife to pave way for her return to her matrimonial home, the respondent instead showed her Plot No. Ndoleli/Adj/Section/xxxx to cultivate on, which land she contends was uninhabitable. She states that she cultivates the said plot to date to sustain herself while her adult children live with her in laws, and on rented premises.

6. After her attempts to involve the local administration to no avail, she decided to come to court and contends that the respondent thereafter attempted to sell the properties but her sons placed cautions thereon and filed Maua Civil Case No. 58 of 2010, which was withdrawn on 12/5/2011 after the respondent promised to resettle them in their land.

7. She prays that the properties herein be declared as matrimonial properties so that they can be divided equally between them while maintaining being certain that unless the court intervenes, the respondent will never provide for her and the children and thus they will continue to rely on relatives and well-wishers for livelihood hence she stands to suffer irreparable harm and prejudice if the respondent proceeds with the attempts to dispose of the properties. She proposes that the properties be shared equally between her and the respondent.

8. The respondent opposed this originating summons through his statement of defence dated 2/5/2012 where he contends that the parties herein are not spouses, since they have never contracted any legal marriage, under any known law.

9. He stated that they were once lovers but their relationship broke down in 1984 and they did not have any intimate moment ever since because the applicant was married to another man, and as such she could not be his wife. He then asserted that he was a married man who lacked the capacity to contract another marriage with the applicant.

10. He contended that the properties listed claimed by the plaintiff were outside the purview of Section 17 of the Married Women’s Property Act, because they were bequests from his deceased father to hold in trust for himself and his children. To the defendant, the applicant is a busy body who had brought a similar suit in Maua CMCC No.58 of 2010 for which reason gave notice that he would seek for the deposit of security for costs. He concluded that the suit ought to be dismissed with costs, for being fatally defective.

Applicant’s oral testimony 11. The applicant testified that she got married to the respondent in 1977 in Ameru Customary traditions and were blessed with three issues before the marriage got strained in 1985 she was chased away and the two separated. The separation led to her exclusion from the matrimonial home prompting the plaintiff her to go and live on her brother in law’s property, since 2000.

12. During her marriage, both worked in Thika, her as a quantity controller while the defendant was in accounts and they acquired plot No. 2054 Athiru, where they constructed their home using contribution by both. They later acquired plot No. xxxx and xxxx Ndoleli hence she wants the court to give her a share of the three properties she considers matrimonial.

13. During cross examination, she stated that they met at work place, love blossomed and they got married in 1977 under Ameru Customary Law which she understood well. The two informed their parents of their intentions to marry and started living together after which the defendant’s parents who advised him to pay dowry which he had not done so to date. She informed 23 clan members of his default but she could not remember their names, although there was a letter to that effect.

14. On contribution, she reiterated earning a salary which she contributed to the acquisition of the matrimonial properties and in the construction of the house though she did not have a bank statement to show that contribution. Out of discussions with the clan elders, he gave her a portion of Plot No. xxxx which she has been tilling just as she worked on plot No.xxxx and developed it. She denied that all these properties were registered in the name of the respondent’s father, and maintained that they belonged to the respondent even though she did not ask him where plots came from. Maua CMCC No. 58 of 2010, was withdrawn after the defendant pleaded for forgiveness and promised to settled her as the first wife.

15. In re-examination, she stated that she had adduced proof of her contribution towards buildings on those pieces of land and that she withdrew the case at Maua after the respondent promised to settle her as his wife. She stated that the clan members met on 28/5/2001 and there were minutes to that effect and lastly that the letter from the ministry of lands showed that the respondent was the owner of the properties and not his father.

Submissions 16. The position taken by the applicant in her submissions filed on 17/7/2019 was that the 3 properties were acquired during the subsistence of her marriage to the respondent. She submitted that after she was chased away from her matrimonial home since a second wife had already occupied it, the respondent asked her to take possession and cultivate Plot No. xxxx, Ndoleli Adjudication Section, which turned out to be uninhabitable. She added that since her marriage to the respondent had irretrievably broken down, her only recourse was to apply under Section 17 of the Matrimonial Property Act to get what is due to her.

17. She then cited PNN v ZWN(2017)eKLR, to support her position on the application of section 17 of the Act. She also relied on Section 14 of the Matrimonial Property Act, for stipulation that where property is acquired during marriage in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse while asserting that she made contributions to the family, both monetary and indirectly and she for sure contributed towards the development of the matrimonial home. PWK v JKG[2015]eKLR, was then cited for the proposition that, where the disputed property is not so registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective proportions of financial contribution of the property. She urged the court to find that the applicant is entitled to a share of the matrimonial property and award her as such. She submitted that the respondent had severally failed to offer any evidence to controvert her evidence. She urged the court to find that she has a justifiable and legal interest in ½ of the 3 properties named in her application.

18. The respondent in his submissions filed on 25/11/2021 denied ever marrying the applicant under Kimeru Customary Law or any other known legal regime but admitted that they had a casual relationship and they were blessed with 3 children. He denied either having any marriage negotiations with any of the applicant’s relatives or knowing the applicant’s parents and home and contended that they separated in 1985 and accused the applicant of being responsible for their separation, as she left him and married another man.

19. Thereafter, he married another wife with whom he is still cohabiting, takes care of all his children including the ones he had with the applicant, and accused the applicant of attempting to grab his properties which were meant for his children. He submitted that since 1984, there has never been any consortium or conjugal relationship between them. He submitted that none of his properties were acquired with the help or participation of the applicant.

20. He submitted that he had since transferred land parcel No. xxxx Ndoleli Adjudication Section to his eldest son JK, but the applicant had been forcefully utilizing the same. He submitted that he was only left with a small portion of land, where he lives with his wife, after transferring the rest to all his children and reiterated that what he had with the applicant was not a marriage because no celebrations were done to mark the union nor was any dowry paid

21. He cited EGM v BMM[2020]eKLR, on the inconsistency of the provisions of the Constitution with those of the Matrimonial Property Act with regards to equality of the parties to a marriage as well as MEK v GLM[2018]eKLR, where equality in marriage was viewed as a situation where each party makes contribution, so as to discourage dependency by one spouse. He thus terms the application to have been brought in bad faith to box him into a corner and frustrate him out of spite, malevolence and jealousy. In urging the court to dismiss the application, he submitted that since he had not contracted any marriage with the applicant, she was estopped from claiming anything from him in the name of matrimonial property.

Analysis and Determination 22. Having read the pleadings, the evidence led and submissions offered, I isolate the issues for determination to be: -a)Whether there was a marriage between the parties?b)If the answer to (a) above be in the positive, whether there having been no divorce or nullification of the marriage, the claim under the Act becomes stillborn?c)if the b) above turn out in the positive, whether the applicant /plaintiff is entitled to any part of the property claimed?d)what orders should be made as to costs?

23. The first issue is the anchor issue because without marriage the question of matrimonial property becomes moot and the claim must fail. It thus follows that should I answer this issue in the negative then all else become fait accompli.

24. In these proceedings, only the plaintiff gave evidence while the defendant failed to file any witness statements nor attend court to give evidence on a date taken by consent. Accordingly, the defense case was closed without any evidence and therefore the statement of defence filed remain no more than allegations with no probative value at all1. The flip side is that the plaintiff’s evidence remains intact and uncontroverted. That evidence was to the effect that the two cohabited between 1977 and 1986 and were blessed with three children who the defendant accepts as his. During the same period a house was constructed by the two upon plot no xxxx, Athiru Rujiine adjudication section. Parties went into loggerheads, according to the plaintiff, after the defendant married a second wife and the plaintiff was evicted from the house hitherto used as the matrimonial home. She did not go to the unknown but was housed by the defendant’s brother. The dispute was escalated to the clan with the help of the local administration and resolutions were made that the defendant rents a house for the plaintiff as he built a house for his second wife so that the plaintiff be availed what had been her home before the second wife came in. The record of those proceedings before the clan show that the defendant agreed to give the plaintiff land to settle upon.1Trust Bank Ltd v Paramount Universal Bank Ltd, HCC No. 1243 of 2001

25. That evidence on how the dispute had been handled show on a balance of probabilities that the defendant did present and hold out as being married to the plaintiff. That holding out even after problems had cropped up persisted for a period up to 2001. That is cumulatively 30 years. I consider the cohabitation coupled with reputation of the two as couples to entitle the court to draw a presumption of marriage. In Mary Wanjiku Githatu v Esther Wanjiru Kiarie [2010] eKLR, the Court of Appeal, Bosire JA., summarized the position thus:“The existence or otherwise of a marriage is a question of fact. Likewise, whether a marriage can be presumed is a question of fact. It is not dependent on any system of law except where by reason of a written law it is excluded. For instance, a marriage cannot be presumed in favour of any party in a relationship in which one of them is married under statute. However, in circumstances where parties do not lack capacity to marry, a marriage may be presumed if the facts and circumstances show the parties by a long cohabitation or other circumstances evinced an intention of living together as husband and wife.

26. During cross examination of the plaintiff, industry was put in asserting that no rights like visits and dowry payment was made to constitute an Ameru customary law. That is very well and good but for a court to presume marriage, compliance with such requirement is wholly unnecessary. In Phylis Njoki Karanja & 2 others v Rosemary Mueni Karanja & Another [2009] eKLR, the court held that the presumption of marriage could be drawn from long cohabitation and acts of general repute by the parties and regardless of performance of customary obligations. The court of Appeal said:“Before a presumption of marriage can arise a party needs to establish long cohabitation and acts of general repute; that long cohabitation is not mere friendship or that the woman is not a mere concubine but that the long cohabitation has crystallized into a marriage and it is safe to presume the existence of a marriage. We are of the view that since the presumption is in the nature of an assumption it is not imperative that certain customary rites be performed.”(Emphasis provided)

27. The court thus finds and holds that out of repute gained by the parties coupled with a cohabitation of more than nine years, the parties were indeed married.

28. On the second issue whether the action is tenable on the basis that the marriage is yet to be terminated, it is important to remember that the suit was filed on4. 4.2012 and brought pursuant to Section 17 of the Married Women’s Property Act 1882. That Act was repealed by the Matrimonial Property Act which came into force on 16/1/2014. The amendment of the statute does not dissipate rights and obligations that had accrued under the repealed law. Section 23 (3) of the Interpretation and General Provisions Act, which safeguards all rights, obligations, liabilities and privileges where legislation is repealed states thus: -“Where any written Law repeals in whole in part another written Law, then unless a contrary intention appears, the repeal shall not;a.Revive anything not in force or existing at the time at which the repeal takes effect; orb.Affects the previous operation of a written Law so repealed or anything duly done or suffered under a written law so repealed; orc.Affect a right, privilege, obligation or liability acquired, accrued or incurred under a written Law so repealed; ord.Affect a penalty for forfeiture or punishment incurred in respect of an offence committed against a written Law so repealed.”

29. The law before amendment was that a cause of this nature was maintainable during the currency of the marriage. That was the position disclosed by the facts in PNN v ZWN [2017] eKLR and the court of appeal having isolated the question as to whether the repealed law was applicable rendered itself as follows: -“37. In this case, as earlier observed, the marriage between P and Z had virtually come to an end but subsisted on paper. P had already moved in with another woman and transferred part of the disputed property to her. The parties had to come to terms with the reality that they were no longer going to share or enjoy joint ownership of whatever property they may have previously owned and therefore the wisdom in putting their house in order. I would answer the second question in the positive.”

30. Having found that the repealed law applied it went on to decide the appeal on the merit and undeterred by the fact that the claim was lodged and pursued during the subsistence of the marriage. The rationale is that the purpose of the statute was to ascertain the property rights and assign same as appropriate. The court quoted Pettit v. Pettit [1970] AC 777:- where it was held:“One of the main purposes of the Act of 1882 was to make it fully possible for the property rights of the parties to a marriage to be kept separate. There was no suggestion that the status of marriage was to result in any common ownership or co-ownership of property. All this in my view negatives any idea that Section 17 was designed for the purpose of enabling the court to pass property rights from one spouse to another. In a question as to title to property, the question for the court was whose is this? And not to whom shall this be given?”

31. Then concluded that ‘the purpose of the Section is not to defeat rights but to provide a machinery for ascertaining rights and once ascertained, then the register would be changed to take account of them.’ I am bound by that decision and thus hold that the subsistence of the presumed marriage without dissolution does not defeat the cause which is properly before the court.

32. Now, is the plaintiff, being a wife to the deceased, entitled to a share in the claimed property? It remains the law that a spouse is not entitled to the others property merely on account of marriage without more. The law under the repealed and the new statute and after the new constitution has been interpreted to underscore contribution as a basis of entitlement.

33. As said before, the uncontroverted evidence is that the two parties acquired three parcels of land and developed a home together using individual from the same employer. That evidence was never controverted and I find it to suffice as proof within a balance of probabilities.

34. I do find that in the absence of precise contribution by each, the prudent thing to do is to invite and apply equality between the spouses. I declare that the two shall share the three parcels equally. However, the plaintiff acknowledges that there is another wife who is on the property, plot No xxxx, Athiru Rujiine adjudication section, since her departure. In order that not more disputes are instigated by this decision to which that other wife was never made a party, with the evidence that the plaintiff has been using Plot no xxxx Ndoleli Adjudication Section, while not much was said on what takes place in Plot NO. xxxx, Athiru Rujiine adjudication section, and there being little on the acreage and values on all the parcels of land, it is directed and ordered as follow :-

a)The plaintiff gets Plot no xxxx Ndoleli Adjudication Section, in whole and half of Plot NO. xxxx, Athiru Rujiine adjudication section being her share of the matrimonial property.b)For avoidance of doubt, the defendant retains plot No xxxx, Athiru Rujiine adjudication section and half of Plot NO. xxxx, Athiru Rujiine adjudication section.c)The defendant shall within 60 days from the date of this judgment cause the property so adjudged to be transferred to the plaintiff and in default the deputy Registrar shall sign on his behalf.d)The costs of subdivision and transfer shall be borne by the plaintiff.e)Being a family dispute, each party shall bear own costs.f)Mention be on the 15. 8.2022 before the Deputy Registrar to record compliance.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, ONLINE, THIS 17TH DAY OF JUNE 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for the ApplicantNo appearance for the RespondentCourt Assistant: Mwenda