[2019] KEHC 10375 (KLR)
The court found that the plaintiff failed to prove the existence or matrimonial nature of LR No. [xxxx] or to provide evidence of its sale, and thus her claim to half of its proceeds could not succeed. The court emphasized that the burden of proof rests on the party alleging a fact, and in the absence of evidence,...
Source-derived case information.
- Citation
- [2019] KEHC 10375 (KLR)
- Parties
- Plaintiff: MNM; Defendant: RMM
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 26 of 2015
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- partly allowed; claim on disputed property dismissed; consent on other properties adopted as judgment.
- Legal Topics
- Matrimonial Property Division, Spousal Rights, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
MNM
Plaintiff
RMM
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to half of the proceeds from the sale of LR No. [xxxx] as matrimonial property.
- 2 Whether the plaintiff has proved the existence and matrimonial nature of the disputed property.
- 3 Whether the consent on division of the other two properties should be adopted as judgment.
Ratio Decidendi
The court found that the plaintiff failed to prove the existence or matrimonial nature of LR No. [xxxx] or to provide evidence of its sale, and thus her claim to half of its proceeds could not succeed. The court emphasized that the burden of proof rests on the party alleging a fact, and in the absence of evidence, the claim must fail. However, the court recognized that the parties had reached a binding consent regarding the division of two other properties, and this consent was adopted as the judgment of the court. The court ordered the transfer of the respective properties to each party as per the consent and directed the Deputy Registrar to effect the transfer for the plaintiff. Costs...
Court Disposition
partly allowed; claim on disputed property dismissed; consent on other properties adopted as judgment.
Orders
- The Defendant/Respondent takes Plot No. [xxxx] Municipality/Block [xxxx] Estate Investment absolutely.
- The Plaintiff/Applicant takes Plot No. [xxxx] Housing Co-operative Society Ltd Thika Municipality/Block [xxxx] absolutely.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL SUIT NO. 26 OF 2015 (O.S)
IN THE MATTER OF DIVISION OF MATRIMONIAL PROPERTY
AND
IN THE MATTER OF A DECLARATION OF THE RIGHTS
OF A SPOUSE IN MATRIMONIAL PROPERTY
AND
IN THE MATTER OF THE MATRIMONIAL PROPERTY NO. 49 OF 2013
BETWEEN
MNM.................................................PLAINTIFF
AND
RMM.............................................DEFENDANT
JUDGMENT
1. The Plaintiff/Applicant filed this suit seeking division of Matrimonial Property acquired during the subsistence of her marriage to the Defendant/Respondent.
2. The parties entered into a consent which partially compromised the suit in the following terms;
(i) THAT the Defendant takes Thika Municipality Plot No. [xxxx].
(ii) THAT the Plaintiff takes Plot No. [xxxx]Housing Thika.
3. The Defendant’s Counsel reported to the Court that the Defendant had sold Property No. [xxx] without the knowledge of the learned counsel. The defendant was directed as follows on 1. 3.2018;
(a) THAT the Defendant to file in Court an Affidavit setting out the following;
(i) When and to whom he sold property [particulars withheld] (LR NO. [xxxx] Thika)
(ii) The purchase price he received,
(iii) Date of the sale Agreement,
(iv) Date of transfer.
(b) THAT the Affidavit shall exhibit a true copy of
(i) Sale Agreement and transfer
(ii) Full Search of the said property from 2002 to date
(iii) Any receipts issued
(iv) Proof of receipt of funds
(c) THAT the matter be mentioned on 12. 4.2018 to ensure compliance
(d) THAT costs to be in the cause.
4. The defendant never come back to court from that date and his advocate sought leave to cease acting for him. The Court directed that the hearing notice be served upon the defendant personally and further that the defendant’s Advocate to serve him with their Application seeking leave to cease acting for him.
5. The Plaintiff served the defendant with a hearing notice and filed an affidavit of service. The hearing proceeded exparte since the defendant did not appear in court despite having been served with the hearing Notice.
6. The Plaintiff asked the Court to give her half of the proceeds which the defendant sold LR No. [xxxx] (Property [particulars withheld]. However she did not produce any documents to show the existence of the said property or any evidence of sale of the same.
7. It is trite law that a party is duty bound to proof his or her case to the required standard. The law is very clear that he who alleges a fact is duty bound to prove the same. The parties in this case agreed to share part of the property and it is upon the plaintiff to prove that the property in dispute is matrimonial property and that it exists. The plaintiff has failed to prove the same and I find that her claim on property Nos. [(LR No. [xxxx]) must fail for want of evidence.
8. However, I find that the parties reached a settlement on the other two properties and I adopt the Consent as the Judgment of this Court in the following terms;
(i) THAT the Defendant/Respondent takes Plot No. [xxxx] Municipality/Block [xxxx] Estate Investment absolutely.
(ii) THAT the Plaintiff/Applicant takes Plot No. [xxxx] Housing Co-operative Society Ltd Thika Municipality/Block [xxxx] absolutely.
(iii) THAT the Deputy Registrar of this Court to sign the transfer documents of the Plot No. [xxxx] Housing Co-operative Society Ltd Municipality/Block for the same to be transferred to the name of Plaintiff/Applicant.
(iv) The Defendant/Respondent to pay the costs of this suit.
Orders accordingly.
DELIVERED, SIGNED AND DATED IN OPEN COURT THIS 1STDAY OF FEBRUARY, 2019
ASENATH ONGERI
JUDGE OF THE HIGH COURT OF KENYA, NAIROBI