[2022] KEHC 1579 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

MATRIMONIAL CAUSE NO. 1 OF 2019

MMK...............................................PLAINTIFF

VERSUS

JJM...................................1ST RESPONDENT

RK....................................2ND RESPONDENT

JUDGMENT

1. The suit herein is an Originating Summons taken out by the Plaintiff against the 1st Respondent, his wife, and the 2nd Respondent, his first born son. It is, a claim under the Matrimonial Properties Act, 2013 and seeks the following prayers:

1)This Honourable Court does make a declaration that Land Parcel known as NJORO/NGATA BLOCK 7/xxx (CHUMO) is a matrimonial property.

2) The Honourable Court be pleased to make a declaration that the fraudulent transfer of the matrimonial property being NJORO/NGATA BLOCK 7/xxx (CHUMO) in the name of the 2nd Respondent is unlawful and that this Court does make an order cancelling the title deed issued in respect thereof.

3) This Honourable Court does make a declaration that the Applicant and 1st Respondent are both entitled to proportionate shares of matrimonial property.

4) This Honourable Court does make an order directing the apportionment of shares to the Applicant and 1st Respondent herein over the property and that the parties be at liberty to dispose of their respective shares in the property.

5) This Honourable Court issue a temporary restraining order pending the full hearing and determination of the Origination Summons herein against the Respondents from selling, sub diving, alienating and or in any interfering with the matrimonial Property being NJORO/NGATA BLOCK 7/xxx (CHUMO);

6) That costs of this suit be borne by the Respondents.

2. The suit was opposed by the 1st Respondent. She filed a Replying Affidavit in opposition.

3. The suit proceeded by way of viva voce evidence. During trial both the Plaintiff and the 1st Respondent testified and were cross-examined. After successfully applying for the recall of the Plaintiff, the 1st Respondent’s lawyer cross-examined the Plaintiff a second time. The parties, then, filed Written Submissions.

4. Throughout the trial, I urged the parties to consider an out of court settlement – including Court-Annexed Mediation. The efforts only bore minimal success: the Respondents agreed to withdraw the eviction notice they had issued to the Plaintiff. No concessions were made on the question of the ownership of the matrimonial property.

5. The property in question is the parcel of land known as Njoro/Ngata Block 7/xxx (Chumo) (hereinafter “Suit Property”). The Plaintiff’s argument is that she has been married to the 1st Respondent for more than 29 years during which they acquired several matrimonial properties. The Plaintiff claims that the Suit Property is part of the matrimonial property so acquired, and, therefore, jointly owned by himself and the 1st Respondent. He, consequently, argues that the transfer of the Suit Property to the 2nd Respondent was unlawful and fraudulent. His suit, in essence, seeks a declaration that the Suit Property is jointly owned by himself and the 1st Respondent and a nullification of the transfer to the 2nd Respondent.

6. The 1st Respondent contests that the Suit Property is matrimonial property. Rather, she claims that she bought the property on her own and constructed the house on her own without any financial or other input from the Plaintiff. She, therefore, believes that the Suit Property was hers to keep or dispose of as she deems fit – and it was perfectly within her rights to transfer it to the 2nd Respondent.

7. The 2nd Respondent did not enter appearance or defend the suit although he was physically present in Court by his mother’s side during the trial.

8. The following facts were uncontroverted:

a. That the Plaintiff and the 1st Respondent got married on 07/07/1988.

b. That they had three children together.

c. That the 2nd Respondent is one of the children of the Plaintiff and the 1st Respondent.

d. That the Suit Property was bought during the subsistence of the marriage.

e. That the Suit Property was registered in the name of the 1st Respondent.

f. That the house erected on the Suit Property was equally constructed during the subsistence of the marriage.

g. That the Plaintiff and the 1st Respondent lived in the Suit Property and treated it as their matrimonial home since 2009.

h. That, in 2015, during the subsistence of the marriage, the 1st Respondent transferred ownership of the Suit Property to the 2nd Respondent.

i. That on 16/11/2018, the 2nd Respondent caused his lawyers to issue an eviction notice against the Plaintiff requiring him to vacate the Suit Property within 30 days of the Notice.

j. That there is no pre-nuptial agreement to determine the property rights of the Plaintiff and 1st Respondent.

9. The parties differed on the following consequential aspects of the Suit:

a. Whether the Plaintiff contributed to the purchase price of the Suit Property.

b. Whether the Suit Property was registered in the name of the 1st Respondent as a trustee for both herself and the Plaintiff.

c. Whether the Plaintiff contributed to the construction of the house in the Suit Property.

d. Whether the 1st Respondent informed the Plaintiff of the intended transfer of the Suit Property to the 2nd Respondent.

10. Section 7 of the Matrimonial Property Act provides as follows:

Ownership of matrimonial property is, subject to section 6(3) [of the Matrimonial Property Act], 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.

11. On the other hand, section 6 of the same Act stipulates that:

(1) For the purpose 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 owned or 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.

12. During the trial, the Plaintiff testified that he had been married to the 1st Respondent for more than 29 years but that on 31/01/2017, she deserted the matrimonial home. Thereafter, the Plaintiff testified, he received the eviction notice dated 16/11/2018 from the firm of Ombati & Company Advocates. The Advocates claimed to be acting on the instructions of the 2nd Respondent. The eviction notice is attached to the affidavit of the Plaintiff.

13. The Plaintiff testified that he was shocked to receive a notice threatening to evict him from his own matrimonial home; and further that he was surprised that his first born son was now claiming to own the matrimonial home. He testified that before moving to the Suit Property, they lived in a rented house in Nakuru. He told the Court that the Suit Property was jointly acquired in 2002. At the time, he testified, he worked in Nairobi for Posta. Since the 1st Respondent was based in Nakuru, the Plaintiff testified, they agreed that she would follow up on the purchase process, enter into the agreement with the seller on their behalf, and have the Suit Property registered in her name. The purchase price was Kshs. 75,000/-. The Plaintiff testified that he sent the 1st Respondent Kshs. 40,000/- towards the purchase. The 1st Respondent flatly denied that the Plaintiff contributed Kshs. 40,000/- towards the purchase price and points to the Sale Agreement and receipt issues (both produced in evidence) which both contain only her name as the purchaser.

14. The plaintiff testified that after the Suit Property was purchased both he and the 1st Respondent contributed towards the construction of the matrimonial home. In particular, the Plaintiff recalls financing the construction through two loans of Kshs. 900,000/-. He produced two loan agreements – one dated 27/06/2006 for a sum of Kshs. 400,000/- from National Bank of Kenya and another dated 08/04/2008 for a sum of Kshs. 500,000 from the same bank. He also produced his pay stub for his terminal benefits from Posta for a net pay of Kshs. 730,693/-. He further testified that he sold the matrimonial property in Kapsaret and used the proceeds to pay school fees and sent the rest of the amount to the 1st Respondent to use in developing the Suit Property. He recalled that he send the funds on 30/01/2012.

15. The Plaintiff further testified that he had the receipts showing that he bought materials for the construction of the house and had a book which was the “Control Book” for the construction. However, the Plaintiff did not produce in evidence the receipts or the “Control Book”. He said that he is the one who hired the fundis although he conceded that the 1st Respondent dealt with, and often paid them as well.

16. In cross-examination, the Plaintiff conceded that the Sale Agreement and the receipt issued for the payment of the purchase price were issued in the 1st Respondent’s name although he insisted that he paid Kshs. 40,000/- towards the purchase price. He also conceded that the 1st Respondent was paid more than Kshs. 900,000/- upon her retirement which she put into the construction of the house – but countered that the house cost a lot more than Kshs. 900,000/- and that the house was already under construction by the time the 1st Respondent got her terminal benefits.

17. On her part, the 1st Respondent testified that she bought the Suit Property for Kshs. 75,000/-. She produced the Sale Agreement and the payment receipt as proof. She said that after she paid for the parcel, she started building using her salary from Telecoms Kenya. Finally, she testified, she was retrenched in 2007 and was paid Kshs. 988,210. She produced the pay stub for the amount. She said she used the whole amount on the construction of the house. She said she had all the receipts for the construction materials but that she left them in the house when she fled in 2017 due to the Plaintiff’s violence.

18. The 1st Respondent explained that she bought the Suit Property in her name because the Plaintiff had refused that they purchase land in the Ngata area. She claimed that she discussed with the Plaintiff the transfer of the parcel to the 2nd Respondent’s name in 2015 and that the Plaintiff had agreed to the transfer. She denied receiving any funds from the sale of the Kapsaret farm.

19. On cross-examination she conceded that her salary was about Kshs. 15,000 per month although it rose from Kshs. 2,000 to Kshs. 15,000 per month just before she retired. However, she said she bought the Suit Property and financed the early parts of the construction with loans from her Sacco. However, she did not produce any loan documents to substantiate this. She insisted that the Plaintiff did not contribute any funds towards the purchase of the Suit Property or the Construction of the house thereon. However, she conceded that she took the Plaintiff to see the plot when she was purchasing and that she and the Plaintiff agreed that the Suit Property would be in her name. She also conceded that the Plaintiff used his salary to pay school fees for the children and for the family upkeep while she used her salary to build the family home on the Suit Property. In particular, the 1st Respondent conceded receiving Kshs. 100,000/- in 2006 but said that the amount was not for the construction of the house but for family upkeep.

20. The law has enacted a rebuttable presumption in Kenya that property acquired during the subsistence of a marriage which, then, serves as the matrimonial home of a couple, is matrimonial property owned by both parties. Section 14 of the Matrimonial Property Act stipulates that:

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 a rebuttable presumption that the beneficial interests in the matrimonial property are equal.

21. In the present case, it is common among the parties that the Suit Property was acquired during the subsistence of the marriage of the Plaintiff and the 1st Respondent. There is a rebuttable presumption that the Suit Property was registered in the 1st Respondent’s name to be held in trust for the other spouse. It behoved the 1st Respondent to offset this presumption through concrete evidence. This suit turns on the credibility of the two witnesses. I easily hold that the Plaintiff was the more credible of the two witnesses and that his version of events was the more plausible one. Consequently, I hold that the 1st Respondent failed to offset the rebuttable presumption that the Suit Property was not registered in her name in trust for the couple. I say so for at least three reasons borne out by the evidence:

a. First, the Plaintiff produced three exhibits he says demonstrate how he financed the construction of the house: two bank loans and the payment stub for his terminal benefits from Posta. By contrast, the 1st Respondent produced only one source of such funds: the payment stub of her terminal dues for Kshs. 988,210/-. The 1st Respondent did not seriously or credibly contest that the amounts the Plaintiff claimed he invested in the house were so invested.

b. Second, the Plaintiff could remember with much specificity how the house was constructed – including the dates and the processes. When the 1st Respondent was challenged to even name the foreman or the Lead Fundi, she could only remember one name – Onyango. When asked how she found him, the 1st Respondent said that she found him building houses in that locality and asked him to go build for her. The said Onyango, the 1st Respondent claimed, brought all the other fundis and she paid the other fundis through Onyango. This seems highly implausible.

c. Third, it is telling that the 1st Respondent chose to transfer the property to her son, the 2nd Respondent ostensibly as a gift inter vivos. The timing and purpose of the gift were not explained.

d. Fourth, the 1st Respondent was quite vague about the loans she claimed to have taken from her Sacco to finance the construction. Where the Plaintiff produced actual loan agreements to show his contribution, the 1st Respondent only vaguely spoke of Sacco loans taken.

e. Fifth, the 1st Respondent expressly admitted that during the subsistence of the marriage the Plaintiff paid school fees for their children and paid for other items for the upkeep of the children while she spent her salary and loans on the construction. This would also amount to payment of the acquisition of the Suit Property in kind since the division of responsibilities allowed the 1st Respondent to save sufficiently on behalf of both of them while the Plaintiff took care of the day-to-day upkeep items.

f. Sixth,at various points in her testimony, the 1st Respondent seemed to concede that the house was jointly owned except that she implied that the parcel of land now belonged to the 2nd Respondent. For example, the 1st Respondent claimed that she had obtained the Plaintiff’s consent to transfer the Suit Property to the 2nd Respondent in 2015. There would be no need to obtain such consent if, in fact, the Suit Property solely belonged to her. Similarly, in cross examination, the 1St Plaintiff stated: “The house belongs to us. By us, I mean the M family that is myself, M (Plaintiff), and the children. But the plot is in the name of the son – Raymond. We agreed this with M. The plot is R’s; the house is the family’s.” Of course, the decoupling of the land and the house where it stands is legally impossible. However, in the 1st Respondent’s mind, the house standing on the Suit Property is matrimonial property.

22. All in all, there was no doubt in mind that the Suit Property was jointly acquired by the Plaintiff and the 1st Respondent and was jointly developed by both. It was only registered in the name of the 1st Respondent as a trustee for both of them. The Suit Property, therefore, is matrimonial property belonging to both the Plaintiff and the 1st Respondent.

23. This leads to the second step in the analysis. If the Suit Property is matrimonial property jointly owned, what percentage of contribution should be assigned to each of the spouses? As aforesaid, Section 7 of the Matrimonial Properties Act states that ownership of matrimonial property “vests in the spouses according to the contribution of either spouse towards its acquisition….”

24. In the present case, given the state of evidence presented before the Court, what was the relative contribution of each spouse? We only have sufficient evidence to find that both spouses contributed to the acquisition and development of the Suit Property. Neither spouse has presented concrete evidence that would warrant the Court to conclude that their share of contribution was bigger than the other.

25. The Court of Appeal in Peter Mburu Echaria vs Priscillah Njeri Echaria [2007] eKLR held as follows:

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 or equity” while heading the caution of Lord Pearson in Gissing –v- Gissing [1970] 2 ALL ER 780] at page 788 paragraph c that:

…..No doubt it is reasonable to apply the maxim in a case where there has been very substantial contributions otherwise than by way of advancement, by one spouse to the purchase of property in the name of the other spouse but the portion borne by the contributions to the total purchase price or cost is difficult to fix. But if it is plain, that the contributing spouse has contributed about one quarter, I do not think it is helpful or right for the court to feel obliged to award either one half-or nothing.

26. In the present case, from an analysis of the evidence adduced by the parties, it can be readily concluded under our applicable decisional law that the Plaintiff has demonstrated that he contributed both directly and indirectly to the acquisition and development of the Suit Property. Since the extent of contribution cannot be ascertained mathematically, the principle of equality would apply to yield the conclusion that the Plaintiff is entitled to half share of the Suit Property. It is so declared.

27. The final question we must deal with is what to do with the transfer of the Suit Property to the 2nd Respondent. The 1st Respondent argues that this Court has no jurisdiction to declare the transfer unlawful and cancel it because that is within the province of the Environmental and Land Court set up under Article 162 of the Constitution.

28. I think this is incorrect. The Constitution did not envisage that in a case such as the present one where the Court has determined the question of ownership of property and where such determination has consequences on the registration of the title, the parties should have to bring an entirely different suit in the Environmental and Land Court to effectuate the findings and determinations of the High Court. Such a mechanically talismanic reading of the jurisdiction of the Court would be the very kind of technical (in)justice that Article 159 of the Constitution abhors. The High Court has incidental jurisdiction to make orders related to ownership of land where it has made findings and determinations respecting matrimonial property.

29. In the present case, the appropriate finding and order that recommends itself is the one proposed by the Plaintiff: a finding that the transfer of the Suit Property to the 2nd Respondent was unlawful and an order cancelling the title issued in respect of that transfer. The title to remain in the name of the 1st Respondent who shall continue to hold it in trust for both herself and the Plaintiff.

30. Finally, the Plaintiff, has prayed for an order that the parties be at liberty to dispose of their proportionate shares in the Suit Property. The 1st Respondent has resisted that order on the grounds that the division into respective shares can only happen upon the dissolution of the marriage. At present, the 1st Respondent argues, there are no proceedings for the dissolution of the marriage or for a divorce.

31. The 1st Plaintiff is correct on this point. Section 7 of the Married Women’s Property Act, as cited above, provides that “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.” As the 1st Respondent points out, in the present case, there are neither proceedings for a divorce or dissolution of the marriage. Only at the point of divorce or dissolution can the division be ordered.

32. The disposition of the case, then, is as follows:

a. A declaration is hereby made that that Land Parcel known as NJORO/NGATA BLOCK 7/xxx (CHUMO) is matrimonial property jointly owned by the Plaintiff and the 1st Respondent in equal shares.

b. A declaration is hereby made that the transfer of the Land Parcel known as NJORO/NGATA BLOCK 7/xxx (CHUMO) to the 2nd Respondent was fraudulent and unlawful.

c. An order hereby issues cancelling the title deed issued to the 2nd Respondent with respect to the Land Parcel known as NJORO/NGATA BLOCK 7/xxx (CHUMO).

d. All other orders not specifically granted above are declined.

e. This being a family matter, each party will bear its own costs.

33. Orders accordingly.

DATED AND DELIVERED AT NAKURU THIS 10TH DAY OF MARCH, 2022.

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

JOEL NGUGI

JUDGE

NOTE:This judgment was delivered by video-conference pursuant to various Practice Directives by the Honourable Chief Justice authorizing the appropriate use of technology to conduct proceedings and deliver judgments in response to the COVID-19 Pandemic.