[2022] KEHC 16150 (KLR)

LW v JBW (Matrimonial Cause 7 of 2018) [2022] KEHC 16150 (KLR) (9 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16150 (KLR)

Republic of Kenya

In the High Court at Nakuru

Matrimonial Cause 7 of 2018

TM Matheka, J

December 9, 2022

IN THE MATTER OF DIVISION OF MATRIMONIAL PROPERTY AND IN THE MATTER OF SECTION 17 OF THE MARRIED WOMEN’S PROPERTY ACT 1982

Between

LW

Applicant

and

JBW

Respondent

Ruling

1. By Originating Summons dated 11th January, 2013 the applicant Loise Wairimu seeks for the following orders:-1. That this Honourable court be pleased to declare that the following immovable property acquired during subsistence of the marriage with the joint efforts of the applicant and the respondent and developed by their joint funds and efforts is jointly owned by the applicant and the respondent though registered in the respondents name in trust for botha.Plotxxxx Gilgil“B” Undevelopedb.Plotxxxx Nakuru Teachres Housing Co-opc.Plotxxxx Nakuru Teachers Housing Co-opd.Plotxxxx Nakuru Teachers Housing Co-op (undeveloped)e.Thika Municipality Blockxx/xxx Measuring0. 0447 HAf.Plot No. xxxx/Punda Miliag.Posho Millh.Kiambu Housei.Mitsubishi Canter KAG xxxxj.KAN xxxx Mitsubishi Lorry.2. That this court be pleased to order the division of the property upon valuation being carried out to establish the value.3. That the Applicant be awarded Plot No. xxxx and xxxx Nakuru Teachers Housing Co-operative Society Limited where the matrimonial home stands for her use and the children of the marriage.4. That this Honourable court be pleased to grant such further or other relief’s as may be just in the circumstance.5. That costs of this application be in the cause.

2. The application is supported by the grounds on its face and supported by the affidavit of LW sworn on 11th January, 2013.

3. She deponed that sometimes in 1987 she got married to the respondent under Kikuyu Customary Law and that in the year 1991 they solemnized their marriage under Marriage Act Chapter 151 of the laws of Kenya (now repealed).

4. She averred that during the subsistence of the marriage from its inception she has been working as a nurse at a private hospital and from 1987 she has been working with Kenya Defence Forces at Gilgil.

5. She stated that the respondent was at the inception of the marriage working at [Particulars Withheld] at Thika as a driver and in 1998 he resigned at Metal Box Company and started operating a Posho Mill they had purchased.

6. She contended that after the marriage they established a matrimonial home at Gilgil and they purchased Plot No.xxxx and xxxx at Nakuru Teachers Housing Co-operative Society Limited and later on they purchased Plots no.xxxx and xxxx respectively from the same Housing Co-operative Society.

7. She stated that they also acquired a Plot known as Thika Municipality Block xx/xxxx, Plot No. xxxx/Punda Milia in Makuyu and Motor Vehicles registration Numbers KAG xxxx & KAN xxxx Mitsubishi Lorries.

8. She deposed that they built a matrimonial home in Thuita Village, Kamothai Location of Kiambu District.

9. That all the above properties were acquired during the subsistence of the marriage and she directly contributed towards their purchase.

10. The Respondent opposed the application through Replying Affidavit sworn 18th February, 2013. He deponed that having resigned from Metal Box Company in 1992, he used his savings to purchase a posho mill which business would bring him a net income of Ksh.50,000/= per month.

11. He averred that from the said income he purchased parcels of land known as Plot No. GilgilB Undeveloped & Plot No.xxxx & xxxx Teachers Housing Co-operative.

12. It was his contention that in fact he jointly purchased Plots No xxxx and xxxx with one JWW who is his sister and that some of the purchase money of these plots were given to them by his deceased father.

13. He contended that he singlehandedly acquired plot xxxxNakuru Teachers Housing (undeveloped) with his own money.

14. It was his contention that parcel of land known as Thika Municipality Block xxxx/xxxxmeasuring 0. 0447 Hectares & Plot No.xxxx/punda Miliaare an inheritance from his deceased father and therefore the same cannot be a subject of this cause.

15. He averred that Kiambu House is not his land but an inheritance from his deceased father to his brother.

16. That he singlehandedly purchased motor vehicle registration number KAG xxxx from his own savings.

17. That the motor vehicle registration number KAM xxxx Mitsubishi Lorryis not KAN and is registered in the name of the applicant despite having fully paid for it.

18. He averred that he has sold Motor Vehicle Mitsubishi canter KAG xxxx and the same is no longer available for consideration in this case.

19. He averred that he has been working hard to raise money and invest in the above properties while the Applicant has never contributed anything towards their acquisition.

Applicant’s Case 20. The matter was heard via oral evidence. The Applicant testified that she was married to the respondent but divorced in 2018. She stated that during the subsistence of their marriage they jointly acquired the properties listed on the face of the originating summons though registered in the Respondent’s name.

21. With respect to Plot No.xxxx Gilgil B (Undeveloped), the Applicant stated that she purchased the same at Kshs.40,000/= using her salary and money she received from the government as arrears of her salary increment.

22. Regarding Plots No.xxxx and xxxx Nakuru Teachers Co-operative, the Applicant testified that she purchased them using the same process as above and by using the money she got from disposing off some assets given to her by a relative. The matrimonial home sits on these plots.

23. With regard to Thika Municipality Block xx/xxxx, she stated that they received shares from the respondent’s father but that they paid for the same as their own plot. Similarly Plot xxxx Punda Milia she stated that it was in the form of shares given to them by the respondent’s father and registered in the Respondent’s name.

24. With respect to the posho mill she testified that they had bought it piece by piece and that from this business they used to make a profit of Kshs.1,000/= per month but with time it increased up to Kshs.30, 000/= per month.

25. She testified that she contributed towards the construction of the Kiambu house which sits on the ancestral land that was given to the respondent by his father.

26. She testified that Motor Vehicle registration number KAG xxxx was bought using bank loan and the money they received from the Posho Mill.

27. It was her evidence that through a bank loan and money received from her family members she purchased Motor Vehicle Registration Number KAM xxxx at Kshs. 1,630,000/- that is registered in her name.

28. She proposed that she be given plots numbers, xxxx & xxxx Nakuru Teachers Co-operative Society where the home is as she had no other home. & Thika Municipality Block xx/xxxx while the respondent could have the rest including the motor vehicle KAM xxxx Mitsubishi Lorrywhich she bought. With respect to the Kiambu home she said the court could determine the distribution of that.

29. On cross examination she told the court that the posho mill was bought together, the Gilgil B undeveloped plot, that even though the respondent’s father gave them shares for Thika Block xx/xxxx plot and Punda Milia they paid for the land themselves. That even though the land on which their Kiambu home stood was bequeathed to the respondent’s brother, they had built and furnished the house on it together. That she could not give receipts because it was built in 1988. She did not know they would divorce so as to keep the receipts. She said she did not know what the respondent had done with the motor vehicles.

Respondent’s Case 30. The Respondent relied on his Replying Affidavit and List of Documents dated 17th March 2020 in his evidence in chief. He testified that he officially married the Applicant in the year 1991 and at the time of marriage he was working as a driver at Metal Box Company. He however could not recall his monthly income.

31. He testified that Plots numbers xxx and xxxx were bought while they were married. He said the plots xxxx and xxxx were given to him and his sister by their father and he had share certificates for the same. He denied that his father had given him shares and he had added some money but it was never given to him and the applicant. He said the house in Kiamba was in his brother’s and father’s land. That the only property available for sharing was xxxx and xxxx.

32. On cross examination he said he could not recall what his salary at [Particulars Withheld] was. He said that he and the applicant did not join the Nakuru Teacher’s Cooperative. That it was his father who was a member. He said that his father purchased the plots and he the respondent added him Kshs. 40,000/= before he and the applicant got married but did not have the receipts to prove the same and could not recall the year.

33. Shown the share certificates for the plots showing that they were issued in 1998, he responded that he could not vouch for the source of those certificates. Counsel then showed him the share certificates he had supplied to his own counsel and he confirmed that they were issued in 1998, March 1998. He also confirmed that the title deed for the Thika plot was dated 22nd July 2011 during the subsistence of the marriage.

34. Shown the sale agreement for the motor registration number KAN 387J he confirmed it dated on 18th June 2002 which was during the marriage. He said he bought the posho mill from his retirement benefits in 1994.

35. He did not have not have any documentary evidence to support his claim that the properties were his father’s. He said that plot no 889 and 886 were in his name and 891 in his and his sister’s name.

Submissions 36. Only the Applicant’s submissions filed on her behalf by her counsel are on record.

37. The Applicant in her submissions reiterated her testimony before court. In addition she submitted that the exhibits she produced show that she was the one doing all heavy lifting duties at home and earned more that the Respondent.

38. She submitted that there is no evidence to prove that the respondent’s father purchased plots No. xxxx and xxxxNakuru Teachers Housing Co-operative Society and that the Plot Thika Municipality Blok xx/xxxx belonged to him.

39. She submitted that the Respondent was holding the properties registered solely in his name in trust for the family as envisaged under section 14 of the Matrimonial Property Act. She argued that the law on distribution of matrimonial property does not apportion on an equal 50:50 bases but rather adopts the principle of equity based or guided by the individual parties’ contribution towards acquisition of properties in question. For this proposition she cited AKM vs NNN [2019] eKLR & CWM vs JPM [2017] eKLR.

40. She proposed that based on her contribution this court awards her Plots Number xxxx,xxxx and xxxx Nakuru Teachers Housing Co-op Societyas well as Thika Municipality Block xx/xxxx while the respondent be awarded Plotxxxx Gilgil“B” Undeveloped, Plot NO. xxxx/Punda Milia, Posho Mill, Kiambu House, Mitsubishi CanterKAG xxxx (VEHICLE) and KAM xxxx Mitsubishi Lorry.

Analysis & Determination 41. The issues that arise for determination are: -1. Whether the properties as pleaded constitute matrimonial properties.2. Whether the Applicant made any contribution towards the acquisition of the matrimonial properties3. What ratio/percentage should the said properties (if any) be shared as between the parties herein.4. Who should bear the costs.

42. On whether the properties are matrimonial properties, Section 6(1) of the Matrimonial Property Act No. 49 of 2013 defines matrimonial property as:“The matrimonial home or homes; household goods and effects in the matrimonial home or homes; or any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.”

43. Section 7 provides that:“Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”

44. Section 14 provides for the Presumptions a court may make with respect to property acquired during marriage;“Where matrimonial property is acquired during marriage—(a)in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse; and(b)in the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal.”

45. Matrimonial property is categorized; the obvious one where the property is acquired during the subsistence of the marriage and jointly owned, evidenced by registration in the joint names of the spouses; and another one, registered in the name of one spouse but whose ownership depends on the rebuttable presumption that it is held in trust for the other spouse.

46. The fact of the marriage between these two is not in dispute. The parties got married under Kikuyu Customary Law in 1987 and on 16th November 1991 they converted their marriage under the African Christian Marriage and Divorce Act Cap 151 (Repealed).

47. The properties were acquired during the subsistence of marriage. They are registered in the respondent’s name, and hence the presumption is that the property is held in trust for the applicant by dint of section 14 of the Act.

48. With respect to the home built on the respondent’s ancestral home: It is a fact that more often than not in most Kenyan communities marriage results in the woman moving from her parents’ home to the home of the man, which is more often than not in his parents ancestral home. This is what is otherwise called shagz or oshago a shengnised from the word ‘gishagi’; meaning our home in the village. More often than not the couple will put up their shagz home on land pointed out by the parents of the man. That is a fact of the way many of us live. A couple may have money and buy their own plot of land put up their house or buy their own house. The house in shagz remains the home in the village. For those with other homes it serves as the home when the owners attend functions in the village, family gatherings, funerals, weddings, visiting the old people, wazee.

49. The question then becomes, what should happen when the relationship between these co-owners of this house, built with their contributions, material or otherwise, falls apart and there is a divorce as in this case? Should the fact that the house is built on the man’s ancestral land deny the wife who contributed to the construction of that home her share? It cannot be.

50. There has to be a balance. The respondent’s response to the applicant’s demand for a share of the house is that it is on land belonging to his father and brother and therefore she cannot get a share. In this case she is not asking for the land. She just wants a share of the house they built on the land.

51. My view is that the house is matrimonial property and ought to be shared out.

52. The plots xxxx, xxxx, xxxx and xxxx; the share certificates are in the names of John Boro Waweru issued on 31st May 2010, and 24th March 1998 respectively. The title deed for Thika Municipality Block xx/xxxx was issued on the 22nd July 2011. That applies to Plot no. Gilgil B undeveloped, Plot no. xxxx Punda Milia. Though in the respondent’s name they are matrimonial property as there was no evidence he had bought the property all by himself as alleged.

53. Regarding plots number xxxx and xxxx, the Applicant submitted that she contributed towards its acquisition. That her father in law was the initial shareholder of these plots but subsequently she and her husband paid for the shares and ultimately the plots were transferred to the name of the Respondent. The Applicant testified that their matrimonial home is situated on plots number xxxx & xxxx. The applicant exhibited bank statements from Barclays bank showing that she took a loan for purposes of improving their home.

54. It is not in doubt that the Applicant was earning more than the Respondent. From the documents filed in 1997 her salary was Pounds three thousand four hundred and thirty-five and that is the year when she was paid arrears. The respondent produced evidence to show that he retired in 1996 and was paid three months’ ex gratia at Kshs. 37,000/=. Evidence on record shows that purchases towards the posho mill were done before 1996. In 2006 the applicant was able to purchase a motor vehicle valued at Kshs. 1,630,000/=. She was in a position to take a loan from the bank in 2007 for home improvement. The respondent’s testimony that the applicant used all her money on herself and never spent a single cent on the family is unsubstantiated and unbelievable. It is my considered view that there is sufficient evidence, on a balance of probabilities, to show that the applicant made contribution to the purchase of the family properties.

55. In considering the mode of division of the matrimonial property the principle is not that each party is entitled to a 50% share of all property acquired during the subsistence of a marriage. The share of each spouse will depend on their respective contribution towards the acquisition of said property.In PNN – VS ZWN (2017) eKLR the words of Hon Justice Kiage, JA speaks to this as follows: -“I think that it would be surreal to suppose that the Constitution somehow converts the state of coverture into some sort of laissez-paser, a passport to fifty percent wealth regardless of what one does in that marriage. I cannot think of a more pernicious doctrine designed to convert otherwise honest people into gold-digging, sponsor-seeking, pleasure-loving and divorce-hoping brides and, alas, grooms. Industry, economy, effort, frugality, investment and all those principles that lead spouses to work together to improve the family fortunes stand in peril of abandonment were we to say the Constitution gives automatic half-share to a spouse whether or not he or she earns it. I do not think that getting married gives a spouse a free to cash heques bearing the words “50 per cent.”

56. It is settled that contribution to matrimonial property is not always in cash. The applicant did confirm that after retirement the respondent did business running the posho mill and the transport business. Without clear cut evidence of the contribution of each party then the presumption must be that each made an equal contribution. Earning more money does not mean that the other party has not made equal non-monetary contribution. That is the issue here. The record shows that the Applicant did contribute to the acquisition of some of the matrimonial properties. The respondent on his part did not adduce any evidence on how he contributed towards the acquisition of the properties in question.

57. Hence, in my assessment based on the evidence on record this is one of the cases where a 50:50 distribution would be equitable, and justified with the applicant ultimately getting the matrimonial home in Nakuru and the house they built on the ancestral land going to the respondent.

58. So the following orders issue:1. A declaration be and is hereby issued that the following properties were acquired during subsistence of the marriage with the joint efforts of the applicant and the respondent and developed by their joint funds and efforts are jointly owned by the applicant and the respondent though registered in the respondent’s name in trust for bothi.Plot xxxx Gilgil“B” Undevelopedii.Plot xxxx Nakuru Teachres Housing Co-opiii.Plot xxxx Nakuru Teachers Housing Co-opiv.Plotxxxx Nakuru Teachers Housing Co-op (undeveloped)v.Thika Municipality Blockxx/xxx Measuring 0. 0447 HAvi.Plot No. xxxx/Punda Miliavii.Posho Millviii.Kiambu Houseix.Mitsubishi CanterKAG xxxx (Vehicle)x.KAN xxxx Mitsubishi Lorry6. That a valuation be carried out to establish the value of each property for purposes of division.7. The parties to agree on a valuer and the share the valuer’s fee at 50:50. 8.The valuation report be filed in court within 60 days hereof.9. The parties are at liberty to take up the services of a mediator for purposes of sharing the properties as per the court’s findings. If so inclined they can get a date before the mediation registrar within the next 14 days for purposes of being assigned a mediator.10. That costs of this application be in the cause.11. Orders accordingly.

DATED, SIGNED AND DELIVERED BY EMAIL THIS 9TH OF DECEMBER, 2022. MUMBUA T. MATHEKA,JUDGE.C/A EdnaNancy W. Njoroge & Co. AdvocatesMirugi Kariuki & Co. Advocates