[2022] KEHC 15956 (KLR)

MH v JMM (Originating Summons 5 of 2020) [2022] KEHC 15956 (KLR) (2 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15956 (KLR)

Republic of Kenya

In the High Court at Mombasa

Originating Summons 5 of 2020

JN Onyiego, J

December 2, 2022

Between

MH

Applicant

and

JMM

Respondent

Judgment

1. The applicant herein celebrated her marriage with the respondent on December 21, 1996 under the now repealed Marriage Act. The couple was subsequently blessed with two living issues who are now adults. Due to irreconcilable differences, the couple’s marriage was dissolved on August 8, 2018.

2. Consequently, the applicant moved to this court vide an Originating summons dated September 10, 2020 seekinga.a declaration that; plot number 1480 section VI Mainland North kwa hola; Subdivision Number 2190 of Section VI MN; House without Land built on plot No 1922/VI/MN; unregistered parcel of land at Miritini and unregistered parcel of land at Bokole area magongo registered in the name of the respondent were owned jointly by the applicant and the respondent.b.That the honourable court be pleased to order the division of the said properties and apportionment of the same between the applicant and the respondent in equal shares.c.That further and in the alternative and in the event that title and ownership in any way of the suit properties has/have already been transferred in favour of any third party, an order that the respondent does account for the proceeds and the same be divided between the applicant and the respondent equally.d.That the honourable court be pleased to order that the respondent executes all documents where necessary to transfer the applicant’s portion, and in the absence or in default the same be executed by the deputy Registrar, lands registrar or registrar of titles or in the alternative the aforesaid matrimonial properties be valued by aqualified and reputable valuer, sold and proceeds be shared equally between the applicant and respondent.e.That the respondent does render complete statements of accounts in respect of all the above properties and provides an account for all cash flows and profits obtained from the family businessesf.That a temporary injunction be issued in restraining the respondent, his servants, and /or agents from selling, transferring, alienating, damaging and or otherwise adversely interfering with the said properties pending the hearing and determination of the originating summons hereing.That the honourable court be pleased to grant such further or other relief orders as may be just in the circumstances.h.That the respondent be condemned to pay costs of this suit

3. The summons is based upon grounds stated on the face of it and further amplified by the averments contained in the affidavit in support sworn by the applicant on September 10, 2020 in which she stated that the subject properties were acquired during coverture hence matrimonial properties. She attached alease agreement (annexture HF-5) dated February 18, 2002 in respect of plot number 1480 Section VI Mainland north kwa hola between Issa Ahmed Mwidani the lessor and the respondent as the leasee. The property was leased at a lump-sum sum of kshs 140, 000/= and thereafter at 400/= per month for residential purposes. That upon signing the said lease, they started construction of a hardware and rental houses. That she later obtained a loan of Kshs 300,000 which she used to construct the said hardware

4. She further averred that the year 2013, she sold her undeveloped plot at kshs 1,500,000 which money she used to support the hardware business. That she later obtained Kshs 500,000 from Bandari Sacco which funds she used to partition their rental houses.

5. She further claimed that on March 12, 1999 they bought a plot known as sub-division number 2190 section VI MN at asum of 370,000. A copy of title and the sale agreement between John musunza muthengi (vendor) and the respondent as the purchaser was attached as evidence. She claimed that through her direct and indirect monetary contribution they constructed rental houses and shops.

6. It was further stated that around the year 1999, they purchased a house on plot number 1922/VI/MN magongo at a price of Kshs 350,000/=. That she contributed kshs150,000/= after obtaining a loan facility. She further claimed that around May 2, 2014, they purchased three plots at miritini each measuring 60 by 50 ft at a price of kshs 550,000. A sale agreement between Julius kipkoech and the respondent was attached. She further stated that the year 2015 they took a loan of kshs 3,000,000 from Bandari Sacco which money she used to support the respondent in construction of the bar and restaurant at miritini property. That they also bought a plot at Bokole magongo which they improved into rental houses.

7. It is the applicant’s case that they own a bar and restaurant plus lodgings from which the respondent is collecting rent. In conclusion, the applicant prayed that the properties be shared out equally.

8. In response, the respondent filed a replying affidavit sworn on November 18, 2020 basically denying the entire claim. He claimed that he took full parental responsibility in providing shelter, food, clothing and payment of school fees for his children. That he solely bought the subject properties and without any help from the applicant. It was his contention that the applicant had heavy financial dependency from her single mother and siblings who depended on her meagre salary of Kshs 10,000/=

9. He went further to claim that the year 2004, he and the applicant agreed to sell some properties to raise university fees for the applicant’s further studies. That he spent his money to educate the applicant who has now left him a poor man hence deserves a share of her salary. According to him, the applicant should be made to disclose all properties acquired during marriage but in her name interalia; Plot in Bamburi with 10 rooms; 10 acre land at Msambweni; two undeveloped plots at jomvu kuu and two mvs regn numbers KBS 965S and KCF 813E. He deposed that the only properties remaining after selling the rest were one plot at miritini; one plot at Bokole and business bar and restaurant which are under construction.

10. In her rejoinder, the applicant filed a further affidavit sworn on March 3, 2021 thus stating that throughout their marriage, she was the sole breadwinner of the family as well as a primary caregiver for the issues of the marriage. She attached school fees payment slips to serve as proof of parental responsibility to the children. She denied the allegation that the respondent was the one who paid school fees for her education. She averred that throughout her marriage and even before marriage she was gainfully employed hence capable of taking care of her school fees and even taking bank loans. To prove that assertion, she attached a bundle of loan application forms dated Otctober 8, 2002 and October 5, 2004 (See annexture MH2).

11. She further deposed that the respondent was not capable of acquiring and developing the subject properties taking into account that he was employed as abus booking clerk earning kshs 6000/=. That he lost his job the year 2000 hence he could not have made any contribution towards the development of the properties in question. She also attached several loan application forms and Sacco statements to prove that she acquired loans using her payslip as security hence made direct monetary contribution towards the acquisition of the subject properties (see annexture MH3).

12. On family responsibility, she claimed that she was solely responsible in providing the family with medical care, shelter, food , clothing to children, payment of school fees for the children and herself and expansion of family projects. That the respondent deserted their matrimonial home thus abandoning the children and therefore abdicating his parental responsibility. She denied the claim that she spent all her money in taking care of her mother and siblings.

13. On the claim that some of the properties were sold to pay school fees for the children and expand family business, she dismissed the claim as untrue. She denied allegations that she owns Swahili house at Bamburi with 10 rooms and 10 acres of land at msambweni Mangwei area. That the two undeveloped properties at jomvu kuu settlement scheme were gifts given to her as a gift by the church on February 18, 2020 long after they had divorced. To prove the allegation, she attached plot allocation letter from Methodist church ( annexture MH 6 dated February 18, 2020).

14. During the hearing, the applicant (pw1) adopted and literally reiterated her averments contained in the affidavit and further affidavit in support of the summons together with the annextures thereof. On cross examination, the applicant stated that they used to stay in their house where they could share bills. She however admitted that she has a plot at Bamburi which has no registration documents.

15. On his part, the respondent (Dw1) averred that he is a businessman who runs a group of companies under the umbrella of Wanainchi group of companies which he incorporated the year 2000. He stated that he operates a hardware business, transport and real estate properties. He denied acquiring any property with the applicant jointly. That he operates club 2030 which he started the year 2019. Regarding plot number 1480 MN,he claimed absolute ownership having bought it at Kshs 160,000. That he spent kshs 1. 6 milliom to construct a Swahili house thereon. Touching on plot number 2190, it was his evidence that he solely bought it after taking a loan of Kshs 370,000 from cooperative bank. That he spent kshs 1. 2 million to construct a Swahili house thereon.

16. He went further to state that he bought plot number 1922 with a complete Swahili house at kshs 350,000 without any support from the applicant. Regarding Bokole property, he claimed absolute ownership. That he bought and developed the property at kshs 1. 5 million without any support from the applicant. Concerning Miritini property, he again claimed sole ownership.

17. He claimed that the applicant failed to disclose properties that she owns in her name among them; a plot at bamburi with 10 rooms; 10 acre shamba at mshambweni; two plots at Jomvu kuul; two motor vehicles Regn numbers KBS 965 S and KCF 813 E all acquired during the subsistence of marriage. He claimed that he paid school fees for their children. On cross examination, he confirmed that he did not have a sale agreement for plot number 1480 nor receipts to show that he did develop the same. In respect to plot number 2190, he admitted that he had no proof to establish that he was the one who bought the plot. He confirmed that he did not contribute anything towards the acquisition of bamburi plot with 10rooms in the name of the applicant. On msambweni land, he also admitted that he had no proof of its ownership. As to the claim that he never paid school fees for the children, he conceded that he had no evidence on school fees payment.

18. Upon close of the hearing, parties agreed to file written submissions.

Applicant’s Submissions. 19. The applicant through the firm of Mwashushe and company advocates filed her submissions on July 6, 2020. Counsel submitted on four issues inter alia; whether the suit properties are matrimonial properties; parties’ contribution towards their acquisition; what share is each entitled and who is to bear the costs. According to counsel, the properties in question were acquired during the subsistence of marriage hence matrimonial property. In her view, all the properties were acquired during coverture hence matrimonial property. In that regard, the court was referred to the case of TMW vs FMC (2018) eKLR Where the court held that property acquired during coverture is matrimonial property.

20. Regarding contribution, counsel reiterated the averments contained in the affidavit and further affidavit in support of the application plus the annextures thereof. She contended that the applicant had established that she did make both monetary and non-monetary contribution which included; rendering domestic chores, attending to the children, paying school fee for the children and providing basic necessities for the children. In that regard, the court was referred to the holding in the case of AWM vs JKG (2021) eKLR where the court recognized both monetary and non-monetary contribution among them rendering of domestic chores as contribution towards acquisition of matrimonial properties.

21. As to the applicant’s share, she prayed for half share. To arrive at that conclusion, reliance was placed on section 9 of the matrimonial property Act which provides that where property is acquired by one party before marriage and the other party makes contribution towards its improvement during marriage, such party is entitled to a share equal to the amount contributed towards its improvement. Further reliance was placed in the case of RGG Vs MKG (2018) e KLR where the court recognized non-monetary contribution as sufficient enough to claim half share of matrimonial property. Regarding costs, counsel submitted that the same does follow the event hence should be awarded to the applicant.

Respondent’s submissions 22. Through the firm of Ogoti and company Advocates, the respondent filed his submissions on July 21, 2022. The respondent basically adopted the content contained in the affidavit in reply to the application. Learned counsel submitted that the applicant had failed to prove that she contributed towards the acquisition of the properties in question. That there was no proof that the monies taken as loans was indeed spent on the acquisition and development of those properties. Counsel further contended that the applicant’s salary of Kshs 10,000 was not sufficient to acquire the property in question.

23. It was contended that some of the properties listed by the applicant had been sold to raise college fees to educate the applicant hence not available for distribution. Counsel urged the court to direct that part of the applicant’s salary be apportioned to the respondent who invested heavily on her education which improved her fortunes.

Analysis and determination. 24. I have considered the summons herein, response thereof, testimony by both parties and submissions by their respective counsel. Issues that arise for determination are ;a.Whether the properties in question qualify to be matrimonial propertyb.If the answer to (a) above is positive what was each party’s contribution’c.What share is each party entitled to if anyd.Who will bear the cost

25. According to the summons, the properties comprising matrimonial property are; plot number 1480 Sec VIMN kwa hola; Subdivision number2190 section VIMN; house without land built on plot no 1922/VI/MN and unregistered parcel of land at miritini and Bokole.

26. On his part, the respondent listed a Plot in Bamburi with 10 rooms; 10-acre land at Msambweni; two undeveloped plots at jomvu kuu and two mvs regn numbers KBS 965S and KCF 813E all in the name of the respondent but not disclosed. He also deposed that the only properties remaining and registered in his name after selling the rest were; one plot at miritini; one plot at Bokole and business bar and restaurant which are under construction.

27. From the pleadings and evidence on record, the parties herein are not in agreement as to what property constitutes matrimonial property. Matrimonial property is defined under section 6 of the matrimonial property Act as;‘’ Meaning of matrimonial property (1)For the purposes of this Act, matrimonial property means—(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.

(2)Despite subsection (1), trust property, including property held in trust under customary law, does not form part of matrimonial property.

(3)Despite subsection (1), the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights.

(4)A party to an agreement made under subsection (3) may apply to the Court to set aside the agreement and the Court may set aside the agreement if it determines that the agreement was influenced by fraud, coercion or is manifestly unjust

28. In the case of TMW vs FMC (supra), the court adopted the definition under Section 6 of the aforesaid Act to arrive at the conclusion or definition as to what constitutes matrimonial property. In that case, the court held that for property to qualify as matrimonial property, it must have been acquired during the subsistence of marriage unless agreed by both parties that such property will not form part of the matrimonial property. The burden of proof in law lies with the party alleging that such and such property indeed was acquired during the subsistence of the marriage and therefore constitutes matrimonial property.

29. In the instant case the applicant stated that the plots listed by her were indeed acquired during coverture. She attached sale agreements showing the dates they were acquired which period falls within the date of marriage which is, December 21, 1996 and dissolution of their marriage on June 10, 2018. According to her, those properties are still in existence hence should be distributed. On the other hand, the respondent claimed that some of them were sold and only the unregistered plot at Miritini; Bokole and abar and restaurant are remaining. Unfortunately, the respondent did not attach any evidence to show that those properties listed by the applicant were acquired before or after dissolution of the marriage or that they were disposed of with the knowledge of the applicant before the dissolution of the marriage. In fact, during his cross examination, he admitted that he had no proof as to when those properties were obtained or disposed of. In the absence of such proof and considering the evidence adduced by the applicant that they were acquired during the subsistence of their marriage, iam satisfied that the properties listed in the Originating summons were acquired during coverture and therefore constitute matrimonial property.

30. Regarding the property Known Bamburi with 10 rooms in the name of the applicant, she admitted on her cross examination that that property was acquired during coverture. To that extent, that property is recognized as matrimonial property. As regards two plots at jomvu, the applicant attached allocation and acceptance letter showing that the two plots were allocated by Methodist church to the applicant on Febraury 18, 2020 long after the dissolution of marriage. To that extent, they do not qualify to be matrimonial property as the same were obtained after the dissolution of marriage.

31. Concerning 10 acre at Msambweni, the applicant denied knowledge of the property. On cross examination, the respondent admitted that he had no proof of its existence. Without evidence, this court cannot ascertain its existence, when it was acquired and by who. For that reason, that property is not available for division. As regards two motor vehicles aforementioned, the respondent claimed that they were acquired during the subsistence of their marriage and that the applicant had the log books. The applicant denied in her further affidavit owning any of the two motor vehicles. The respondent did not tender any proof that those mvs does exist. The respondent should have attached copies of log books or searches to prove ownership and the time when they were acquired. To that extent, the two motor vehicles can not constitute matrimonial property.

32. Having sieved what constitutes matrimonial property, I will now turn to the issue of contribution. Under Section 2 of the Matrimonial Property Act 2013, contribution is defined as;“monetary and non-monetary contribution includes-a.Domestic work and management of the matrimonial homeb.Child carec.Companionshipd.Management of family business or property; ande.Farm work

33. Section 7 of the Act further 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”.

34. Courts have consistently upheld in various decisions the position that contribution toward s acquisition of matrimonial property can be monetary or non-monetary. See Agnes Nanjala William vs Jacob Patrius Nicholas Vander C A NO 127of 2 011 where the court recognized both monetary and non-monetary contribution in the acquisition of matrimonial property. Similar position was held inPeter Mburu Echaria vs pricscilla Njeri Echaria (2007) e KRL

35. Equally, in the case of Nderitu v Nderitu(1995-1998)1EA235, the court took into account the wife’s direct and indirect contribution to arrive at the conclusion that the same was equal.

36. In the instant case the applicant contended that plot number 1480 was bought at kshs 140,000 the year 2002 by which time the respondent had lost his job. She attached a sale agreement signed between the vendor and the respondent. According to her, she took a loan of Kshs 300,000 from Afya sacco and a further loan of Kshs 500,000/= which money they spent to stock the hardware. She attached loan application forms as evidence of the loan taken. Unlike her, the respondent did not adduce any evidence to show how he acquired the property. The fact that the property was bought in his name on Febraury 18, 2002 does not mean that the same was his exclusive property.

37. It is immaterial that the property was bought in the respondent’s name alone. The same is deemed to be held in trust of the applicant. The onus of proof however is subject to a rebuttable presumption of law under Section 14 of “Matrimonial Properties Act which provides;“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.”

38. In the case of Njoroge vs Ngari(1985) KLR the court held that if matrimonial property is held and registered in the name of one spouse but the other spouse made contribution towards its acquisition, each spouse or party is deemed have proprietary interest over that property. However, to determine how much share one is entitled will depend on the degree or extent of each party’s contribution. See PWK Vs JKG (2015) e KLR where the court held that’’“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 proven 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 maxim equality is equity while heeding the caution of Lord pearson in Gissing vs Gissing (1970) 2 All ER page 788”

39. Since the respondent has not specifically tendered any evidence to prove on how he acquired the said plots through direct financial contribution, he nevertheless made indirect contribution through rendering management and supervisory role in their bar, restaurant and hardware business out of which funds were realized for the expansion and improvement of their business as well as acquisition of other assets. This position applies to all the properties identified herein as matrimonial property. On the other hand, despite the respondent holding ownership documents, the applicant did tender at least primafacie evidence by way of documentary evidence in form of loan application forms and Sacco statements on how she raised funds through the bank and her Sacco. They at least reflect some efforts made in investing in the acquisition and improvement of the subject properties. Since there is no evidence that such investment was intended for the exclusive benefit to a particular spouse, the same is deemed to have been acquired for their joint benefit.

40. In the case of Paul James Savage vs Mona Husssein Ali Duale (respondent)and Amina Mohamed Hassan (interested party) civil appeal No 350 of 2017 delivered on June 24, 2022 by the court of appeal Nairobi, the court had this to say’’“Where there is no express agreement as to the respective beneficial interest of each spouse, it may be possible to infer their common intention as to their respective beneficial interest save from their conduct…”

41. The argument by MS Ogoti counsel for the applicant that there was no proof that the monies realised out of loans were used in acquiring the properties in question is not supported by any evidence. To that extent, one cannot with mathematical precision determine how much each contributed. I will therefore apply the maxim that equity is equality hence the position taken that each party is deemed to have contributed equal amount hence the properties be shared out equally at the ratio of 50% to 50%.

42. In the event that any property may have changed hands without the applicant’s consent, then the same shall be valued and the respondent compensates the applicant a sum equivalent to her 50% entitlement

43. Regarding the prayer that part of the applicant’s salary be apportioned to the benefit of the respondent, the same is not tenable as salary of a spouse is not classified as matrimonial property for purposes of division. If he paid school fees that was an irrevocable gift given to a loved one purely out of love and affection and therefore an act of philanthropy.

44. On division of the businesses which includes; a bar, restaurant and hardware, the same is not possible as there was no evidence adduced to show how much such business was worth at the time they separated around 2017 and whether it was a going concern. Since these were businesses purely managed by the applicant, it is hard to isolate the worthiness of such businesses as at the time of their separation and now a bout 5years down the line. To that extent, I will take those businesses to be the respondent’s office purely managed by him just like the applicant was and has been attending to her office. For those reasons, I do not find any element of matrimonial property in those businesses hence the respondent’s exclusive property.

45. Having arrived at the above holding, am inclined to make the following final conclusion and orders;a.That the properties herein below have been ascertained to have been acquired during the subsistence of marriage and therefore constitute matrimonial property for division in equal share at the ratio of 50% to 50%i)plot number 1480 section/VI/MN kwa holaii)subdivision number 2190 of section/VI/MN house without land on plot number 1922/VI/MNiii)Unregistered parcel of land at Miritiniiv)Un registered parcel of land at Bokole Magongo areav)Bamburi plot with 10 roomsb)That in the event any of the above properties have changed hansds without the consent of the applicant, the respondent to compensate the applicant the amount equivalent to the value of her 50% entitlement.c)In the event that the property is not capable of physical division, the same be valued by a mutually agreed valuer and then sold and the proceeds realized therefrom be distributed equally.d)That this being a family related dispute, each party shall bear own costs.

DATED, SIGNED AND DELIVERED AT MOMBASA VIRTUALLY THIS 2NDDAY OF DECEMBER, 2022J N ONYIEGOJUDGE