[2023] KEHC 27173 (KLR)

MNN v GMN; EWN (Being an administrator of the Deceased) SNN (Interested Party) (Civil Suit 52 of 2014) [2023] KEHC 27173 (KLR) (Family) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27173 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Suit 52 of 2014

PM Nyaundi, J

December 8, 2023

IN THE MATTER OF THE MATRIMONIAL PROPERTY ACT, 2013

Between

MNN

Applicant

and

GMN

Respondent

and

EWN (Being an administrator of the Deceased) SNN

Interested Party

Ruling

1. The Application for determination is Notice of Motion dated 14th August 2023 presented under Order 40 rule 2, Order 51 rule 1 of the Civil Procedure Rules; Section 12(3) & 4 and 17 of the Martimonial Property Act, Section 1, 1A & 3A of the Civil Procedure Act. The Application is supported by the Affidavit of the Applicant sworn on even date and seeks the following orders-1. Spent.2. Spent3. A compulsory injunction does issue giving the respondent and interested party unlimited access and quite enjoyment of their 65% share of LR No. 4857/124 Kilelelshwa Nairobi and the respondnet unlimited access and quite enjoyment of his 10% share of Lr Kiambu Block 2/1874. In the alternative the applicant does elect to buy out the respondent and third party in which case she upon full payment of the purchase price can deny the Respondent and third party access or access or access to be bought out by the respondent and third party so that she can vacate and issue the Respondent and third party quite enjoyment of LR NO. 4857 /124 Kileleshwa Nairobi5. Further in the alternative the Applicant does buy out the respondents 10% of LR- Kiambu Block 2/187 in which case she upon full payment of the purchase price can deny the respondent access.6. L.R. No 4857/124 Kileleshwa and LR Kiambu Block2/ 187 be professionally valued and unlimited access be given to the respondent and third party’s valuer for purposes of ascertaining the selling price.7. THAT in computation the purchase price be factored and offset 65% of monthly rent of LR No. 4857/124 Kilelelshwa Nairobi and 10% of the monthly rent for LR Kiambu Block 2/ 187 from 14th February 2022 being the date the court pronounced itself till when the applicant will grant the respondent and third party quite enjoyment of 65% of of LR No. 4857/124 Kilelelshwa Nairobi and the respondent quite enjoyment of 10% of LR Kiambu Block 2/ 1878. The O.C.S Kilelesha (sic) Police Station does provide the necessary security to facilitate the enforcement and implementation of these court orders of 14th February 2022 as well as any subsequent orders to be issued by this Court.9. This Honourable Court grants such other and further relief as it deems fit to grant10. The costs of this application be borne by the applicant.

2. The Respondent opposes the Application and has sworn an affidavit on 1st September 2023 in opposition.

3. The Court directed that the Application be canvassed by written submissions and both parties complied. The Applicants Submissions are dated 18th October 2023 while those of the Respondent are dated 26th October 2023.

Summary Of The Applicant’s Case And Submissions 4. The Applicant avers that vide a judgment delivered on 14th February 2022, Hon. Achode J (as she then was) having determined that the properties comprised matrimonial property distributed LR NO. 4857/124 Kileleshwa Nairobi equally among the Applicant ( herein), the Respondent and the interested party. And allocated the Applicant herein 10% of LR Kiambu Block 2/187.

5. It is averred that the Respondent has denied both the Applicant and the interested party access to both the properties. The Applicant contends that by doing this the Respondent has disregarded and trashed the Judgment of the Court. Attempts to meet with the Respondent to resolve the matter have not been successful.

6. The Applicant seeks that the Respondent be compelled to grant the interested party access to their respective shares of the assets and in the alternative the properties be sold and proceeds shared as per the distribution provided by the Court.

7. The Applicant also makes a claim for rent payable for the respective assets from the date of judgement to the date of implementation of the judgment. It is averred that since the Applicant has not obtained stay of execution pending appeal the orders should obtain.

8. The Applicant identifies the following as the issues for determinationa)Whather this Court is functus officio having delivered its judgment of 14th February 2022b)Whether the main respondent/ Applicant is entitled to the orders soughtc)Who is to pay costs

9. On the 1st issue the Applicant relies on the decision of Hon. P.J.O Otieno in Mombasa HCCC Civil Suit No. 279 Of 2004 ( O.S) Leisure Lodges Limited Vs Japhet S. Asige & 2 Others and the provisions of Sections 28, 29,30, 34 and 38 of the Civil Procedure Act and order 52 rule 4 of the Civil Procedure Rules on the power of the Court to execute the judgment.

10. On applicability of the doctrine of functus officio, the Applicant relies on the decision in Mombasa Bricks & Tiles Ltd & 5 Others vs Arvind Shah & 7 Others [2018] 3KLR and particularly the power of the Court to handle all and every other consequent, complementary, supplementary and necessary faciliative processes. The Applicant urges that the doctrine of functuss officio does not foreclose proceedings that are incidental to or natural consequence of the final decision of the court such as execution proceedings or any other matter that the court can exercise supplementary jurisdiction. The doctrine only bars merit based decisional re- engagement with the case once a final judgment has been entered a decree issued.

11. On the 2nd Issue, whether the Appliant is entitled to the orders sought?, the Applicant submits that he seeks to move the suit towards closure by complying with the order of the court vide its judgment of 14th February 2022. Upon divorce, the issue that is pending is the division of the matrimonial property. The Applicant relies on the decision in Mombasa Civil Application No. 16 of 2014, New Ocean Transport Limited & Anor V Anwar Mohamed Bayusuf Limited [ 2014] eKLR where the Court of Appeal expounded on different types of injunctions.

12. On the final issue, the Applicant cites Section 27 of the Civil Procedure Act and urges that the conduct of the Respondent necesstitates that she be condemned to pay the costs herein.

Summary Of Respondent’s Case And Submissions 13. The Respondent contends that the Application is without basis, is incompetent and a balatant abuse of court process. It is further urged that the application is fundamentally defective, vexatious and malalfides and amounts to a back door appeal or prayer for review of an otherwise erroneous judgment.

14. The Applicant points out that there is a pending appeal before the Court of Appeal vide COAA E903 OF 2022. It is contended that the court is functus officio and lacks residual jurisdiction to hear and determine the application and relies on 0rder 40 rule 1 and 2 of the Civil Procedure rules, 2010.

15. It is submitted that the this Application is lodged by the Applicant in an attempt to shield himself from paying alimony monies pursuant to the decree of divorce.

16. In submissions the Respondent identifies the following as the issues for determination;a.Whether the Application is properly before Courtb.Whether the Court is functus officio in light of the orders sought by the respondent in his application dated 14th August 2023c.Whether the application and orders sought can be granted

17. On the 1st issue, it is urged that the Applicant cannot make representations on behalf of the interested party as she has her counsel on record. It is further urged that the interested party having died prior to the conclusion of the matter and no order of substitution having issued, any representations on her behalf are incurably defective and relies on the decision in Wainaina Kahawa vs Land Registrar [2008]Eklr.

18. On the 2nd issue, it submitted that the Court is functus offcio as the Applicant purports to seek an injunction post judgment which cannot lie by virtue of Order 40 of the Civil procedure Rules. The only issue pending for determination is the Appeal before the Court. The Respondent relies on the Supreme Court decision in Election Petitions Nos 3, 4 & 5 Raila Odinga & Others Vs IEBC & Others [2013] Eklr.

19. The Respondent relies on the decision on Thunder Plumbing & Construction Ltd V Ravasm Development Company & Another [2020] eKLR to urge that the Court is estopped from considering a merit based engagement in the matter as judgment has been pronounced.

20. On the final issue as to whether the orders sought can be granted, it is submitted that there isn’t an existing suit that would allow the granting of an injunction and reference is made to the decision in Anastacia Wagiciengo v Ezekiel Wafula [2018] Eklr

21. It is further submitted that there is a pending appeal which should be disposed off first. It is submitted that since the matrimonial properties Act does not provide for valuation of matrimonial property the Application has no legal basis.

22. In conclusion the Respondent urges that the Application be dismissed with costs to the Respondent.

Analysis And Determination 23. Having reviewed the pleadings, submissions filed herein and the relevant law , I identify the following as the issues for determination-a)Whether the Court is functus officio?b)If (i) is anwered in the negative, what are the appropriate orders that ought to be made?c)Who should bear the costs of the Application?

24. On the 1st Issue, it is not in dispute that the Court delivered its judgment on 14th February 2022 and in that Judgment found that LR NO. 4857/124 Kileleshwa Nairobi and LR Kiambu Block 2/187 were matrimonial properties and then proceeded to distribute the properties between the Applicant and the Respondent.

25. In that Judgement the Court declared that the Respondent herein, was entitled to 35% of LR 4857/124, being the matrimonial home and the Applicant herein was entitled to 10% of L.R. Kiambu Block 2/ 187.

26. It is also not disputed that the Respondent herein has lodged an Appeal against the judgment at the Court of Appeal. It is also not controverted that there are no orders staying the judgment pending the determination of the Appeal. It is not disputed that the parties are not in possession of their respective shares of the assets as directed by court

27. The Respondent argues that the Judgment having been delivered the Court is functus officio.

28. I find that the Respondent is right on the law but wrong on its application to this case. As was stated in the case of Election Petitions Nos 3, 4 & 5 Raila Odinga & Others Vs IEBC & Others [2013] eKLR a court is functus when-Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected.The purpose of the doctrine is to provide finality. ( Emphasis Supplied)

29. As can be seen a court can only be said to be functus in relation to its judgment once the same has been complied with. In this case parties are yet to comply with the Court order. On the part of the Respondent, she argues that this is on account of the pending appeal before the Court of Appeal.

30. The provisions of Order 42 rule 6 (1) are crystal clearStay in case of appeal [Order 42, rule 6. ](1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.

31. On account of the foregoing , I will dispense of the first issue in the negative as I find that the Court is not functus officio and is actually under obligation to facilitate the implementation of its orders otherwise the party in whose favour the judgment is would have his constitutionally guaranteed right of access to justice violated.

32. The 2nd Issue is what are the appropriate orders. I agree with the Respondent herein that the Court can only act to enforce the judgment that was delivered on 14th February 2022. The Court in its judgment, pronounced the shares of each party to the matrimonial properties.

33. The Applicant in seeking injunctive orders to have quiet possession of the properties is walking outside of the parameters of the judgment. The Court in its judgment has determined the respective shares of the parties. The Court can therefore only make orders that lead to the implementation of that judgment.

34. Rule 30 of the matrimonial property rules 2022, sets out the powers of the Court in relation to matrimonial propertiesRule 30(1) Upon hearing the summons or any application made in the proceeding, the court may make any one or more of the following-(a)An order for the sale of the matrimonial property or any part of the matrinmonial property, and for the division vesting or settlement of the proceeds of sale(h)An order for the payment of a sum of money by one spouse to the otherj.An occupation order granting to such spouse for such perios or periods and on such terms and subject to such conditions as the court thinks fit, the right personally, and to the exlusion of the other spouse, to occupy the matrimonial home or any other premises forming part of the matrimonial property:…(3)Where the Court makes an order for the sale of any matrimonial property and for the division, application, or ssettlement of the proceeds, the Court may appoint a person to sell the property and divide, apply or settle the proceeds accordingly, and the execution of any intruments by the person so appointed shall have the same force and validity as if it had been executed by the person in whom the property is vested.(4)in exercise of the powers under this rule, the Court may make an order for valuation of the matrimonial property and give such other directions as it may deem appropriate.

35. As can be discerned from the provisions set out the court is vested with broad powers that ensure that it has the tools to ensure that the Order is ‘perfected’.

36. The Court having determined the respective shares of the parties to the assets/ properties, it has the authority to nudge the parties along where there is, as in the instant case evidence of stagnation.

37. The parties herein having divorced, joint possession of the property is not an option. The workable option is for the assets be sold and the parties share the proceeds. With the first option for purchase going to either of them.

38. To facilitate the sale, it is necessary that theproperties be valued so as to determine their worth. It is therefore ordered that Counsel of both the Applicant and Respondent jointly identify a valuer to determine the value of both assets within 45 days.

39. In the event that they are unable to mutually agree on a valuer, Counsel for the Applicant herein will identify a valuer within 14 days.

40. The Valuer will prepare and submit the valuation report within 30 days of receipt of instructions. The Valuation fees to be shared equally between the Applicant and the Respondent.

41. The first right of purchase to be given to the Respondent herein. With regard to the LR NO. 4857/124 Kileleshwa Nairobi, the Respondent will buy out the Applicant and the interested party ( valued at 65% of value in the valuation report) within 120 days of submission of the valuation report.

42. With regard to LR Kiambu/ Block 2/187, the Applicant to buy out the Respondent ( valued at 10% of the value in the valuation report ) within 120 days of submission of the valuation report.

43. In the event that the Respondent fails to comply with paragraph 41 and 42, the Applicant’s right of purchase will be activated and he will have 120 days to buy out the Respondent ( valued at 35% in respect of LR NO 4857/124 Kileleshwa and 90 % in respect of LR Kiambu Block 2/187 of the value in the valuation report)

44. In the event neither of the parties is able to exercise their right of purchase as stipulated above, the Applicant at liberty to put up both properties of sale. The Respondent will evacuate both assets within 45 days of payment of her share of proceeds.

45. In the event that the Respondent declines to sign any documents that will facilitate the transfer of the assets within 21 days of delivery to her, the Deputy registrar will execute the same in her stead.

46. The matter will be mentioned on 30th July 2024 to confirm compliance.

47. Having regard to the nature of the Application and that the Application would not have been necessary if the Respondent had moved to comply with the Court order, I will allow on the Application on the terms set out above with costs to the Applicant assessed at Kshs 20000 payable within 30 days.It is so ordered

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 8TH DAY OF DECEMBER, 2023. P. NYAUNDIJUDGEIn the presence of:Sylvia Court Assistant