[2022] KEHC 11300 (KLR)

KRKC v HMC (Matrimonial Cause 5 of 2021) [2022] KEHC 11300 (KLR) (15 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11300 (KLR)

Republic of Kenya

In the High Court at Mombasa

Matrimonial Cause 5 of 2021

JN Onyiego, J

July 15, 2022

Between

KRKC

Plaintiff

and

HMC

Defendant

Judgment

1. On the December 8, 2005, the plaintiff herein KRKC a Germany national (herein after the plaintiff) contracted a civil marriage at the Registrar of Marriages Mombasa with HM ( hereafter the defendant). Subsequently, the couple settled and continued cohabiting as such within Kwale county until 2017 when the plaintiff discovered that the defendant had lied to her that he was a bachelor yet he had another wife married under Islamic law.

2. As a result of the said discovery, the plaintiff petitioned for divorce at the Chief Magistrate’s Court Mombasa vide Divorce cause No 7/2019. On January 24, 2020, the said marriage was dissolved as the same had irretrievably broken down. Accordingly, a decree nisi was issued to that effect.

3. Subsequently, the plaintiff moved to this court vide an originating summons dated January 3, 2020 filed on March 23, 2020 seeking determination of the following questions.a.Whether the plaintiff was initially married to the defendant;b.Whether the marriage was valid;c.Whether the marriage between the plaintiff and the defendant is dissolved;d.Whether the plaintiff and the defendant acquired any property and more specifically property known as Kwale/Diani/1872/Kale Diani /1873 and Kwale/SN/Kundutsi/“C”326 and whether they are all properties acquired during the subsistence of the marriage between the petitioner and the respondent;e.Whether the lands known as Kwale/Diani/18XX, Kwale/Diani/18XX and Kwale/SN/Kundutsi “C” 3XX can be treated as matrimonial property;f.Whether the plaintiff is entitled to more share in the matrimonial property as compensation or in lieu to the fact that the respondent had misled the plaintiff to enter into a void marriage;g.Whether the plaintiff should retain the Kwale/Diani/18XX, Kwale/Diani/18XX as her share and the defendant to get Kwale and S.N/Kundutsi “c”3XX.

4. The summons is supported by a verifying affidavit sworn on January 3, 2020 by KRKC in which she stated that she was duped by the defendant to enter into a void and fake marriage as the defendant was not a bachelor as stated in the marriage certificate but a man with another family. That she suffered mistreatment and treats on her life besides persistent cheating hence their divorce.

5. She went further to express the position that, during the subsistence of their marriage, she solely contributed money for acquisition of LR Kwale/Diani/1873 and 1872 on which she developed a residential house and two other apartments and cottages for lease thus generating Kshs 40,000 income per month. That she also acquired and reared 11 cows and 56 goats on LR Kundusi “C” 3XX all of which the defendant disposed. She further claimed to have bought a stone crusher from china to crush ballast but the same was taken away by the defendant.

6. Besides service of the originating summons, the respondent did not enter appearance nor filed any response. Consequently, the suit proceeded to hearing exparte. During the hearing, the plaintiff basically adopted the content of her averments contained in the affidavit in support of the summons. She reiterated the fact that she basically raised funds used to purchase and develop the properties in question alone.That she scarified her life for the sake of her husband (defendant) but in return suffered frustration which she does not wish anyone on earth to undergo.

7. Upon close of the hearing, Mr Atancha appearing for the plaintiff promised to file submissions but none was filed. I am therefore left with the plaintiff’s pleadings and testimony to determine the suit.

8. Having considered the originating summons herein which is filed pursuant to the Matrimonial Property Act 2013, and further having considered the testimony of the plaintiff (applicant), I am able to discern issues for determination as follows;a.Whether the properties listed in the summons were acquired during coverture.b.Whether the listed properties constitute matrimonial property.c.Who is entitled to what share.

9. Before I proceed to determine the three issues, I wish to clarify that the suit before me is about determination whether the listed properties constitutes matrimonial property, parties’ contribution and distribution thereof. The question regarding void or voidable marriage in my opinion is not for this court to determine. That was the subject of the divorce cause proceedings. As to general damages for being duped to enter into a void marriage, it is not for determination within matrimonial property dispute proceedings.

10. In view of the above clarification, the next question is whether the properties the subject of these proceedings were acquired during the subsistence of the marriage. There is no dispute that the plaintiff and defendant got married on December 8, 2005 and dissolved their marriage on January 24, 2020. The validity of the marriage notwithstanding, the two lived together as husband and wife during the period in question.

11. There is no doubt that the two were married and the properties in question acquired during the subsistence of their marriage. LR Kwale/ Diani /1873 was acquired on December 11, 2008, LR Kwale /Diani/1872 on December 10, 2008 while LR Kwale /SN Kundutsi “c” 3XX was acquired February 9, 2010.

12. The plaintiff produced title deeds reflecting registration dates falling within the period of the subsistence of their marriage. The question that begs for an answer is whether they do qualify to be matrimonial property under section 6 of the Matrimonial Property Act which defines matrimonial property to mean;a.Matrimonial home or homesb.Household goods and effects in the matrimonial home or homes; orc.Any other immovable and movable property jointly owned and accrued during the subsistence of the marriage.

13. From the above definition, the subject properties having been acquired during the subsistence of the marriage between the two, they qualify to be matrimonial property. See Civil Appeal No 261 of 2019 CA Nairobi, EWM v MOM; ANM & another (Interested Parties) where the court stated that;“the question is what amounts to matrimonial property. This question is well settled as under section 6 (1) of the Matrimonial Property Act, matrimonial property is defined to include matrimonial home, or homes, household goods and effects in the matrimonial home or homes or any other movable and immovable property jointly owned or acquired during the subsistence of the marriage”

14. In the circumstances of this case, the defendant having not entered appearance, I am satisfied that the listed properties do constitute matrimonial property.

15. The next question is, who contributed what towards the acquisition of the said property. Under section 7 of the Matrimonial Property Act, ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition , and shall be divided between spouses if they divorce or their marriage is otherwise dissolved. Section 2 of the said Act goes further to state that contribution means; monetary and non-monetary contribution which includes;a.Domestic work and management of the matrimonial houseb.Child carec.Companionshipd.Management of family business or property; ande.farm work

16. The above provisions are further fortified by article 45 (3) of theConstitution which 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. In the case of EWM v MOM; ANM & another (Interested Parties) (supra) the court of appeal emphasized on the point that matrimonial property is all about contribution be it monetary or non-monetary .

17. It therefore follows that, contribution is not about direct financial contribution alone but also non-monetary contribution. A spouse should therefore not be disqualified by the fact that he or she was not contributing directly to the acquisition of the property. It is worth noting that, there are other indirect roles recognized in law as forms of contribution towards property acquisition inter alia; companionship, child care or rendering domestic work or managing the house or development. See JWC v PBW [2015] eKLR and NWM v KNM [2014] eKLR.

18. In the instant case, the plaintiff claimed that she was the sole financier to the acquisition of the property in question. She however did not attach any proof of direct or indirect contribution. Unfortunately, her claim was not controverted by the respondent who did not file any response. I am therefore left with the evidence of the plaintiff alone, although the properties are registered in the name of the defendant alone. The court ought to consider the intention of the parties during the acquisition of the property.

19. However, section 14 of the Matrimonial Property Act does recognize that a spouse can be registered as the sole owner of property but hold in trust of the other spouse. For avoidance of doubt, section 14 does provide as follows;Where matrimonial property is acquired during marriage;a.In the name of the spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse; andb.In the names of the spouses jointly, there shall be a rebuttable presumption that their beneficial interest in the matrimonial property are equal.

20. In the case of PWK v JKG [2015] eKLR the court had this to say;“where the disputed property is not so registered in the joint names of the spouses but is registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proved respective proportions of financial contribution either direct or indirect towards the acquisition of the property. However, in cases where each spouse has made a substantial but unascertainable contribution, it may be equitable to apply the maximum equality is equity while holding the caution of lord pearson in Gissing v Gissin [1970] 2 All ER 780 page 788. ”

21. According to the plaintiff, she contributed solely in acquiring the property but the amount contributed is not ascertainable. Where property is registered in the name of one spouse and in the absence of any specific amount contributed towards its acquisition, the maxim that equity presupposes equality shall apply. In the circumstances, the only logical inference to draw is that as a foreigner, the plaintiff could not have owned free hold land (property) in Kenya hence the registration in the name of her husband. I will therefore in the interest of justice presume that the defendant held the properties in question in trust for the benefit of the plaintiff in equal share. Accordingly, the property shall be shared equally at the ratio of 50:50%

22. In the event any party wants to sell his or her share, the property shall be valued by a mutually agreed valuer and then the proceeds realized thereof shared out equally. Regarding costs, each party shall bear own costs.

DATED, SIGNED AND DELIVERED IN VIRTUALLY AT MOMBASA THIS 15TH DAY OF JULY, 2022JN OYIEGOJUDGE