[2020] KEHC 1339 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 83 OF 2019

IN THE MATTER OF THE MATRIMONIAL PROPERTY ACT, 2013

AND

IN THE MATTER OF THE LAND REGISTRATION ACT, 2012

MKK................................................APPLICANT

VERSUS

EWM............................................RESPONDENT

RULING

1. By way of an application brought by way of a Chamber Summons dated 27th November, 2019, the Applicant seeks for orders that:

a. The Respondent be compelled to allow the Applicant access to the matrimonial home being L.R. No. [xxxx] for purposes of obtaining his personal items namely:

i. United States of America Passport No. [xxxx]

ii. Title Deed Ngong Block 1/49

iii. Clothes

iv. Assorted Books

v. Charcoal grill

vi. Assorted furniture

vii. Assorted kitchen items from the U.S.

viii. Personal documents

ix. Golf travelling bag.

x. Shoes.

b. The Respondent be held financially responsible for any of the personal items of the Applicant found to be lost or damaged and that the Respondent be compelled to compensate the Applicant at a rate to be determined by the court.

c. The O.C.S. Kilimani Police Station do assist in enforcement of prayer no. a above by providing police escort to the Applicant to collect items from the matrimonial home L.R. No. [xxxx] or any other place the defendant may be holding the items including Rungiri farm house L.R. Muguga/Gitaru/[xxxx] and all of the Respondent’s business premises.

d. The costs of this application be provided for.

2. The application is premised on the grounds on the face of the application and as deposed in the affidavit sworn by the Applicant on 27th November, 2019 in support thereof as stated hereunder.

3. The parties were previously married but have since divorced, which divorce was finalized on 26th August, 2019. During the pendency of their marriage, they resided in a house located on a property known as L.R. No. [xxxx] in Kilimani area off Dennis Pritt Road. The Applicant moved out of the home on January 16, 2016 upon the irretrievable breakdown of the marriage. While their union was not blessed with children, they had each sired children from other unions all of whom are now adults.

4. The Applicant deposed that at the time of their separation, he left his personal items in the matrimonial home. That since their separation, the Respondent has denied him access to the matrimonial home and categorically stated that she would never grant him access thereto, or surrender to him his personal belongings. He asserted that after several unsuccessful attempts to gain access to the home, he reported the matter to Kilimani Police Station where it was recorded vide O.B. No. [xxxx]. He was however unable to get assistance since he was not in possession of a court order.

5. It was the Applicant’s statement that during the course of the divorce proceedings, he had instructed his Advocates on record to request for his personal belongings, which they did, but that there was no response from the Respondent’s Advocates on record. Annexed is a copy of a letter dated 29th March, 2018 authored by the Applicant’s Advocates to the Respondent’s Advocates on record in this respect.

6. The Applicant asserted that in order to move on with his life, he requires his personal items, documents and records. He stated that it is unreasonable and unnecessary for the Respondent to continue to hold onto his personal items since they do not intend to reunite in matrimony ever again. He urged the court to grant the orders sought in order to safeguard his property rights.

7. In response, the Respondent swore an affidavit on 4th June, 2020 in which he deposed that the Applicant moved out of the home on 21st January, 2017. That on the said date, the Applicant went to and from the house a total of six (6) times. She asserted that prior to the said date the Applicant had moved his personal belongings out of their home in several bags and cartons. To her knowledge, the Applicant carried all his possessions when he moved out of the house, a fact she says was witnessed by her house help and home security guard.

8. According to the Respondent, the property known as L.R. No. [xxxx] Dennis Pritt Road was not their matrimonial home but rather her house which the Applicant moved into when he returned to Kenya from America in mid-December 2012. She averred that the Applicant admitted to this during the Divorce proceedings. She urged that the Applicant cannot therefore claim rights to enter her house from which he willingly moved out of on 21st January, 2017.

9. The matter was disposed of by way of written submissions. Learned Counsel Ms. Akedi filed written submissions dated 28th August, 2020 on behalf of the Applicant in which she asked the court to grant the Applicant access to the matrimonial home as well as fifty (50) per centum share of the other properties acquired during the pendency of the marriage.

10. Ms. Akedi submitted that contrary to the claims made by the Respondent, the subject property qualifies as matrimonial property by dint of section 6(1)of the Matrimonial Property Act No. 49 of 2013. Counsel asserted that by virtue of section 17 of the Act, the Applicant has a right to apply to the Court for access to the property and a declaration of his rights to property. Counsel cited the decision in PW vs. GMS [2014] eKLR and urged that the divorce cause between the parties herein was purely on the determination of the status of the marriage and not on the distribution of matrimonial property.

11. Ms. Akedi cited the decision in Njoroge vs. Ngari [1985] KLR 480 and asserted that even where matrimonial property is registered in the name of one spouse but the other spouse made contribution towards its acquisition, then each spouse has proprietary interest in that property. Further that Article 45 of the Constitutionprovides that, each spouse in a marriage has equal status at the time of the marriage, during the pendency of the marriage and at dissolution of the marriage.

12. It was Ms. Akedi’s contention that the Respondent’s refusal to allow the Applicant access of the home is a flagrant breach of his fundamental right to the matrimonial home to which he made monetary and non-monetary contribution. That there are no justifiable grounds for the Respondent to take such action against the Applicant.

13. Ms. Akedi asserted that the Applicant had made out a case to warrant the grant of the access orders sought and asked the court to direct that the OCS Kilimani Police Station intervene to keep the peace.

14. In opposition, learned Counsel Ms. Wambugu filed written submissions dated 25th September, 2020 in which she reiterated the contents of the Respondent’s affidavit and asked the court to dismiss the application with costs stating that it is filed in bad faith, an abuse of court process and the orders sought are intended primarily to harass the Respondent. To this end, Counsel cited the holding in Mwangangu Kisyula & another vs. Francis J Maingi Munyao [2012] eKLR and Bwana Mohamed Bwana vs. Silvano Buko Bonaya & 2 others [2014] eKLR.

15. According to Ms. Wambugu, there are no personal belongings of the Applicant in the home and his application is therefore purely to harass the Respondent. She asserted that the Respondent had not tendered evidence to prove that he owns any of the items listed in his application.

16. The submissions refer to a further affidavit sworn by the Respondent on 19th August, 2020 in which she has annexed an affidavit sworn by her house help on 18th August, 2020. I will however not consider these two (2) affidavits seeing as they were filed after the close of pleadings, after the court gave directions on the filing of submissions and there is nothing to show that the leave of court was sought or granted in this respect.

17. I have carefully analysed the pleadings filed hereto and the written submissions filed by the Advocates for the respective parties. While the Applicant, through his Advocates on record, submitted on the division of the matrimonial home, I note that this is an issue that can only be deliberated upon once the main application is set down for hearing inter partes, whereupon the parties can advance arguments to support their respective cases. At this stage, the court only needs to be satisfied that the Applicant has made out a case to warrant the grant of the access orders sought.

18. The Applicant sought orders to access the Dennis Pritt home for purposes of retrieving his personal belongings and that the Respondent be compelled to compensate him for lost and damaged items. The Applicant has however brought nothing to show that he indeed left the documents and items behind. All there is is the word of the Applicant against that of the Respondent, none of which have been corroborated by additional evidence. This is a court of equity and it is trite law that equity does not act in vain. Without more, this court cannot issue the access orders sought nor can it direct the Respondent to produce documents which have not been demonstrated to be in her possession.

19. It is curious that the Applicant states that these documents are of great importance yet he left them behind when he moved out of the home which he did willingly, since he was not forcibly evicted. Additionally, there is nothing to show which of his belongings he took with him when he moved out of the home. Notably, some of the items listed on the face of the application have been described therein as “assorted” but there is nothing to support this assertion, nor is there anything to identify them.

20. In the instant case, all there is for the court to rely on is the word of the Applicant which was vehemently denied and opposed by the Respondent. While the Applicant annexed a letter authored by his Advocates on record requesting for the items which are stated to be in the Dennis Pritt home, the letter does not demonstrate ownership or prove that the belongings are indeed in the home. Without more, the court cannot grant the orders sought. To do so would be to act in vain.

21. The upshot of the foregoing is that the Applicant has failed to demonstrate that he is deserving of the orders sought. I hereby decline to grant the orders against the Respondent at this point in time. The application dated 27th November, 2019 and filed on 20th December, 2019 is therefore dismissed.

Costs shall be in the cause.

The main application shall henceforth be set down for hearing.

It is so ordered.

DATED SIGNED AND DELIVERED IN VIRTUAL COURT THIS 2ND DAY OF DECEMBER, 2020.

.................................

L. A. ACHODE

HIGH COURT JUDGE

In the presence of………………………………………........Advocate for the Applicant.

In the presence of…………...…………………………………Advocate for the Respondent.