[2023] KEHC 27338 (KLR)

MLL v RKL (Matrimonial Cause 1 of 2018) [2023] KEHC 27338 (KLR) (13 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27338 (KLR)

Republic of Kenya

In the High Court at Kajiado

Matrimonial Cause 1 of 2018

SN Mutuku, J

November 13, 2023

Between

MLL

Applicant

and

RKL

Respondent

Ruling

1. This is a ruling on the Notice of Motion application, filed on 19th April, 2023. It has been brought under sections 1, 1A, 3, 3A, of the Civil Procedure Act and section 17 of the Matrimonial Property seeking the following orders:i.That the Land Registrar, Kajiado be and is hereby directed to register the Applicant as absolute proprietor of Land parcel known as Ngong/Ngong/Kaputei – North/ 19XX8 and issue him Title Deed pursuant to the Ruling of this honourable court delivered on 29th March, 2022. ii.That the Applicant be at liberty to sell Ngong/Ngong/Kaputei – North/ 19XX8 and the proceeds shared between the Applicant and the Respondent in proportion of 20% and 80% pursuant to the court’s ruling delivered on 29th March, 2022. iii.That in the alternative to No 2 above the applicant is at liberty to remit to the Applicant balance of the value being Kshs. 1,800,000 being 80% of the share to the Respondent.iv.That the applicant be allowed to collect rent and deposit to the Applicant’s Advocate Account being Account No, Account name: Naikuni Ngaah & Miencha Co. Advocates Account number: 01020XXXX5401 Bank: Standard Chartered Bank Swift Code: SCBXXXNX Bank code: 02 Branch: Harambee Avenue.v.That OCS commanding Kitengela police station is directed to enforce compliance of these court orders.vi.That costs of this Application be provided for.

2. This application is supported by an Affidavit sworn by MLL. He has deposed that vide a judgment and decree delivered by this Honourable Court on 8th July, 2019 the following properties were to be subdivided amongst the parties herein: Ngong/Ngong/26XX3; Kajiado/Kaputei -North/ 19XX8; Plot KLS/9X situated Laini Saba village at Kibera and West Pokot/Siyoi ‘’A’’/4XX7.

3. He has deposed that vide a ruling delivered on 29th March, 2022 this court laid ground for realization of the said judgement and that pursuant to the aforementioned ruling he has made all efforts to effect the said decree by suggesting means to realize his share to no success; that he has made efforts to register the land at the Lands Registry to effect sale but has hit a snag; that the registrar declined registration for transfer documents in respect of the land known as Kajiado/Kaputei -North/ 19XX8 as the Respondent has refused to surrender the title to said land and that the land registrar can only make changes to the title with an order expressly directing her/him to do so.

4. He has deposed further that he has continued to suffer irreparable loss as the said matrimonial properties continue to fetch income in form of house rent without benefiting from the same despite the court having granted him a percentage of the respective properties and that the application and prayers sought herein will not prejudice any party.

5. The Respondent did not oppose this application though she was served with the documents as per the Affidavit of service dated 20th September, 2023.

Oral Submissions 6. Mr. Ochieng, learned counsel for the Applicant submitted that the Respondent has frustrated the execution of the orders of this court contained in the Judgment delivered on 8th July 2019 and the Ruling delivered on 29th March 2022. He submitted that the Respondent is the registered owner of the properties subject of subdivision as ordered by the court. Counsel submitted that to give effect to the orders of this court, one of the properties known as Ngong/Ngong/Kaputiei-North/19XX9 cannot be sold by the Applicant in order to share the proceeds in 20% and 80% to the Applicant and Respondent respectively as ordered by the court.

7. It was further submitted that it has become necessary to have this property transferred into the name of the Applicant to enable him to sell it and share the proceeds. Counsel undertook to have the Applicant submit accounts to court to show what was realized and how the proceeds have been divided. He told the court that the Land Registrar is not able to transfer the property to the Applicant to enable him to sell it without an order from this court. Counsel urged that this court grants the prayers sought.

Determination 8. This matter is concluded. There exists a judgement delivered on 8th July, 2019 where the court proceeded to distribute the matrimonial property between the parties herein. There is a ruling delivered on 29th March, 2022 where this court gave orders as to the distribution of the matrimonial property.

9. This honourable court, in its orders contained in the Ruling delivered on 29th March 2022, stated under paragraph 27(b) and (c) stated as follows:(b)That to fully give effect of the Judgment delivered on 8th July, 2019 and the decree drawn therefrom, I order that 20% share of the value of the developments on Ngong/Ngong/26XX3 which translates into Kshs. 800,000 calculated from the value of the developments on that property as per the annexed valuation report be recovered from either Plot No. KLS/9X- Laini Saba whose developments are valued at Kshs. 2,600,000 or Ngong/Ngong/Kaputei – North/19XX8 whose value of the developments have been placed at kshs. 2,600,000/-.(c)That in the alternative, in the event that neither party is able and/or willing to buy out the other, the property subject to subdivision, shall be forcefully sold and the proceeds be subdivided in the terms explained herein.”

10. It is clear to me that without the cooperation of the Respondent, these orders cannot be implemented. She has failed to participate in these proceedings and the Applicant has stated, through his counsel, that he has made all efforts to transfer the property so as to effect the sale but his efforts have hit a snag, mainly due to the fact that the Respondent has not provided the title deeds and has failed to sign transfer documents.

11. The Respondent failed to attend court despite being served. This is frustrating the Applicant who is not able to proceed with the execution of the judgment of this court.

12. The orders of the court as pronounced in the judgment dated 25th May 2019 and delivered on 8th July 2019 and the Ruling delivered on 29th March 2022 is clear on what parties to this suit should do. Specifically, this court ordered as follows in the Ruling delivered on 29th March 2022:a.That either the Applicant and the Respondent is at liberty to buy out the other based on the valuation report dated 3rd November, 2020 by Risk Global Limited Valuers and shares as reflected in the judgment of this court.b.That to fully give effect to the judgment of the court delivered on 8th July 2019 and the decree drawn therefrom, I order that the 20% share of the value of the developments on Ngong/Ngong/26XX3, which translates into Kshs 800,000 calculated from the value of the developments on that property as per the annexed Valuation Report be recovered from either Plot No. KLS/9X-Laini Saba whose developments are valued at Kshs 2,600,000, or Ngong/Ngong/Kaputiei-North/19XX8 whose value of the developments has been placed at Kshs 2, 600,000. c.That in the alternative, in the event that neither party is able and/or willing to buy out the other, the property subject to subdivision, shall be forcefully sold and the proceeds be subdivided in the terms explained herein.d.That should the Respondent fail to comply with these orders, then the Deputy Registrar of this court is hereby authorised to sign the transfer forms to effect the transfer of the properties subject to the subdivision.e.That this being a matrimonial matter, I order that each party shall bear their own costs.

13. To my mind those orders are clear. Those orders were not issued in vain. The Respondent has not appealed the said Judgment or Ruling and if she has done so, this has not been brought to the attention of this court.

14. After careful consideration of the application before me, I grant the following orders:i.That the Land Registrar, Kajiado, is hereby directed to register the Applicant, MLL, as the absolute proprietor of Ngong/Ngong/Kaputiei-North/19XX9 and issue him with the title deed.ii.That the Applicant, upon being so registered pursuant to order (i) above, shall sell Ngong/Ngong/Kaputiei-XX and share the proceeds between the Applicant and the Respondent in proportions of 20% to the Applicant and 80% to the Respondent pursuant to the orders of this court.iii.That the Applicant shall file and serve statement of accounts with particulars of the purchase price of the above property, the shares of each party as specified in the orders of this court and expenses incurred in the entire process.iv.This court declines to grant Prayers 3, 4, 5 and 6 of the Notice of Motion filed on 19th April 2023. v.Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 13TH NOVEMBER 2023. S. N. MUTUKUJUDGE