[2022] KEHC 17000 (KLR)

MSW v JNM (Matrimonial Cause 1 of 2018) [2022] KEHC 17000 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17000 (KLR)

Republic of Kenya

In the High Court at Naivasha

Matrimonial Cause 1 of 2018

GWN Macharia, J

December 15, 2022

Between

MSW

Applicant

and

JNM

Respondent

Judgment

The Application 1. The Application is brought by way of an Originating Summons under Sections 2, 6, 7,9 & 17 of the Matrimonial Property Act (No. 49) of 2013, Section 93(3) of the Land Registration Act and all other enabling provisions of the law. The Applicant seeks orders against the Respondent that:a)The Honourable Court be pleased to declare and issue a declaration that Plot Number NMC/XXXX, Industrial Area, Naivasha District registered in the name of the Respondent is owned jointly by the Applicant and the Respondent and/or is held beneficially in trust of the Applicant.b)An order do issue declaring the Applicant entitled to 50% of the said property or proceeds of sale of the same or such other proportion this Honourable Court may deem fit.c)Alternatively, a declaration that the applicant is entitled to the very least an equal share either in kind or cash to the proceeds of sale/transfer of the said property.d)Temporary injunction do issue restraining the Respondent, his servants and/or agents from alienating, wasting, damaging and/or otherwise interfering with the aforementioned property pending the hearing and determination of the originating summons.e)Such other relief or order as this Honourable Court may deem fit and just to grant in the circumstances.f)Costs of the summons be provided for.

2. The Application is based on the grounds on the face of it and supported by an affidavit sworn by the Applicant on June 13, 2018.

3. The Application was opposed vide a Replying Affidavit sworn by the Respondent on October 5, 2018.

4. The Respondent proposed that the matter proceeds by way of viva voce evidence and it was so agreed. However, on various instances when the matter came up for hearing, the Respondent was unable to secure witnesses for medical reasons. The Respondent’s counsel then proposed that the application be canvassed by way of written submissions.

5. Parties filed their respective written submissions accordingly.

The Applicant’s Case 6. The Applicant avers that she got married to the Respondent some time in 1986 under Gikuyu Customary law and they were blessed with three issues who have now become adults. As at the time when they married, the Respondent was a businessman and a farmer while the Applicant was an extension officer with the Ministry of Agriculture.

7. It is further averred by the applicant that she and the Respondent resided in Nyahururu where they had their matrimonial home until when the Respondent began sub-dividing the said parcel of land and offered it for sale without the Applicant’s consent and/or inclusion. Subsequently, it was valued and sold. A valuation report by [particulars withheld] Valuers & Property Consultants was annexed to that effect and is dated the 9th day of December, 2010. It failed to indicate on which land parcel the house valued hosted.

8. That by the time the Applicant realized that the land was being sold, only a small portion of it where their house stood was remaining. Additionally, that the Respondent coerced her into selling the house in exchange of buying another matrimonial home in Naivasha, namely Plot No. NMC/XXXX, Industrial Area. The Applicant annexed an agreement between the Respondent and his wife ENN dated 18th day of June, 1990 to demonstrate that indeed the Respondent sold their land which stated:“I JJM today the 18th day of June,1990 has declared before the Chief Ndaragwa that due to the misunderstanding between me and my wife, Mrs. EJJ, I have agreed to give her 12 acres of land from my plot at Kanyagia plot no.XX.The remaining portion of 12 acres will be kept under my control and from these 12 acres, I have sold 5 acres to Mrs. GWM and we have agreed before the chief that I shall transfer it to the purchaser.There is one(1) acre which is a dam portion and that will remain as it is because I have constructed a dam to feed my family with water and this portion will have its title deed.”

9. The foregoing agreement was executed by both parties in the presence of the Chief, Ndaragwa Location and the Assistant Chief. Further, another agreement was made between the Respondent and a third party on the 8th day of June,1999 with respect to a plot number XXXX. The name of the Applicant appears on the same as a witness.

10. The couple then moved to Naivasha on Plot No. NMC/XXXX, Industrial Area around the year 2010/2011 when they settled on it and began constructing a matrimonial home. On proof of this, the Applicant attached a Copy of a letter from NEMA on environment impact assessment dated January 16, 2013 marked MS2.

11. It is the Applicant’s case that she contributed to the construction and upkeep of the family. She avers that she made both direct and indirect contributions towards the construction of the house in Naivasha. In this regard, she annexed a request for RTGS transfer of the 18th day of March, 2013 in which a sum of Kshs. 200,000. 00 to the Respondent with the details of payment being noted as “for premises construction”. Additionally, Kshs. 120,000. 00 was sent to the Respondent by the Applicant through family bank sometime in 2012 for construction.

12. It was her further case that matrimonial differences forced her out of the matrimonial home in December, 2014. Subsequently, the Respondent curtailed her access to the home, and, as well, neglected his parental responsibility of providing for her and her children leaving her to solely provide for the children.

13. The Applicant intimated that the sale of the Naivasha property was through the collusion between the Respondent and his son. She averred that the same was a clear intent to disentitle her of the property.

14. The Applicant averred that the Naivasha property was acquired during the subsistence of the marriage using proceeds of sale from the Matrimonial Home in Nyahururu, thus, it formed part of matrimonial property.

Applicant’s submissions 15. The Applicant filed written submissions on April 28, 2022 through M/s Wairegi Kiarie & Associates Advocates. Counsel for the Applicant addressed two issues, namely whether there was a marriage between the Applicant and the Respondent and whether the suit property formed matrimonial property which the Applicant jointly contributed to its acquisition and development.

16. On the first issue, it was the submission of the Applicant that the Respondent admitted having been married to the Applicant in 1986 or thereabout. Thus, there is no contestation as to the relationship between the two parties.

17. On the second issue, the Applicant submitted that the Naivasha property was acquired during the subsistence of the marriage and the fact that it was acquired by proceeds from sale of land that was the Respondent’s prior to the marriage, did not disqualify the said property from being matrimonial property. In this regard, reliance was had to the case of T.M.V vs F.M.C [2018] eKLR where Nyakundi, J stated:“..........basically for property to qualify as matrimonial property, it ought to have been acquired during the subsistence of the marriage between parties unless otherwise agreed between them that such property would not form part of matrimonial property.”

18. It was submitted that having moved in with the Respondent into the Nyahururu house, the Applicant made contributions towards improvement and cared for the house and gained beneficial interest as such. Reference was made to Section 9 of the Act which provides:“Where one spouse acquires property before or during the marriage and the property acquired during the marriage does not become matrimonial property, but the other spouse makes a contribution towards the improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made.”

19. The Applicant further submitted that having directly made contributions towards the development of the suit property and the same having been disposed of by the Respondent for a consideration of Kshs. 5,500,000. 00, she was entitled to an equal share of the proceeds in the tune of Kshs. 2,750,000. 00 having spent approximately 28 years married to the Respondent. She relied on the case of MBO vs JOO[2018] eKLR where it was held by the Court of Appeal that:“14. We have recited the above history to demonstrate even under the old regime, a woman’s direct and indirect contribution was taken into consideration and every case was determined on its own merit while bearing in mind the principles of fairness and human dignity. Once a spouse has been in occupation of a matrimonial home for a considerable period of time, where she lived with her children and established herself like the respondent did by even starting a business of selling cereals to support herself after she was retrenched from employment, all these are relevant factors to consider in determining the mode of distribution. On the other hand, the respondent was able to purchase another residential house on separation and the foremost question was to seek a mode of distribution that will not disadvantage one party and render them destitute.” 20. The Appellant urged the Court to find that the suit property was matrimonial property and the Respondent should remit a half of the proceeds of its sale to the Applicant.

Respondent’s Case 21. The Respondent opposed the said application through a Replying Affidavit sworn by himself on October 5, 2018 in which he denied being the registered and/or beneficial owner of the suit property and, as alluded to, the same is in the name of a third party having sold it in the year 2015 for a sum of Kshs. 5,500,000. 00.

22. The Respondent denied having sold the house in Nyahururu or having received proceeds from its sale and avers that it is the Applicant who sold the same and enjoyed its proceeds.

23. Further, the Respondent indicates that the Applicant failed to show when the suit property was acquired so as to render it to constitute matrimonial property.

24. The Respondent further avers that the sums forwarded to him by the Applicant for the purchase of the suit property were pursuant to sale of his business assets and not from the Applicant’s earnings. And that for this reason, the Applicant cannot claim any beneficial interest in the property.

25. The Respondent further submitted that the Applicant had failed to show her contributions towards the purchase of the property in Nyahururu as the same had been acquired and developed prior to 1986 when the Applicant and the Respondent married. That in contrast, the said property’s acquisition and development was between the Respondent and his deceased wife.

26. The Respondent was of the position that the Applicant had failed to demonstrate her contribution towards the acquisition and development of the suit property. He submitted that the alleged payments did not indicate where the funds were directed to and as such failed to create a nexus between the source of the documents related to the funds and the suit property.

27. The Respondent’s case was that the named properties were owned by him to the exclusion of the Applicant, and, as such, his marriage to the Applicant did not affect the position that she cannot in the circumstances claim a share of their ownership. To this end, Section 13 of the Matrimonial Property Act was cited which provides that:“13. Separate property of spouses Subject to this Act and any agreement between the spouses before the marriage, marriage does not affect the ownership of property other than matrimonial property to which either spouse may be entitled, or affect the right of either spouse to acquire, hold or dispose of any such property.”

28. The Respondent referred the Court to the case of Echaria v Echaria [2007] e KLR to further buttress this submission where it was stated:“Where the disputed property is not so registered in the joint names of the spouses but 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...”

29. It was further submitted by the Respondent that the Applicant had failed to prove her contribution towards acquisition, development, maintenance and improvement of the suit property as per the provisions of Section 9 of the Matrimonial Property Act. He invited the court to consider the position in ENK v MNNN [2021] KECA 219 KLRwhere the court held:“................In any case marriage per se is not a ground for sharing properties acquired during marriage in an equal basis. The law in a well trodden path has established that parties must show evidence of their respective contribution to the properties and secondly to the family well being....”

30. It was further the Respondent’s case that the Applicant was aiming to reap where she did not sow, a practice discourage by the Court of Appeal in AW v MVCMAWN [2018] eKLR where it was held:“.......just like the old saying goes, no one should reap where they did not sow and none should reap more than they planted’ is basic tenet of equity which follows the law.”

31. The claim of 50% share of the suit property was rebutted by the Respondent with reference being made to the Court of Appeal position in PNN v ZWW ]2017] eKLRwhere Kiage, JA expressed himself as follows:“I think that it would be surreal to suppose that the Constitution somehow converts the state of coverture into some sort of laissez-passer, a passport to fifty percent wealth regardless of what one does in that marriage. I cannot think of a more pernicious doctrine designed to convert otherwise honest people into gold-digging, sponsor-seeking, pleasure-loving and divorce-hoping brides and, alas, grooms. Industry, economy, effort, frugality, investment and all those principles that lead spouses to work together to improve the family fortunes stand in peril of abandonment were we to say the Constitution gives automatic half-share to a spouse whether or not he or she earns it. I do not think that getting married gives a spouse a free to cash cheque bearing the words “50 per cent.”

32. The Respondent urged the Honourable Court to dismiss the application with costs.

Analysis and Determination 33. This Honourable Court having considered the application, Supporting Affidavit, Replying Affidavit and submissions on record finds that the issues for determination are:i.Whether the suit property constitutes matrimonial property.ii.Whether the Applicant made contributions in the acquisition of matrimonial property.iii.What ratio is to be adopted in the division of the suit property and/or its proceeds?

i. Whether the suit properties constitute matrimonial property 34. This case is brought pursuant to Article 45(3) of the Constitution as read with Section 7 of the Matrimonial Property Act, 2013. The former provides that:“Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.”

35. Section 6 of the Matrimonial Property Act defines ‘matrimonial property’ as:“(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 jointly owned and acquired during the subsistence of the marriage.”

36. Under Section 2 of the Act, ‘Matrimonial home’ has been defined as:-“Any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property.”

37. The established matrimonial home as per the foregoing definition was the one the Applicant and the Respondent utilised in Nyahururu. It is not contested that they lived in the said parcel since the inception of their marriage. However, with respect to the suit property, the same does not qualify to be a matrimonial home as the parties upon leaving their matrimonial home proceeded to set up in a rental house and not on the suit property.

38. The point of departure between the parties is whether the suit property qualifies to be matrimonial property or not.

39. In the case of T.M.V. v F.M.C (supra), Nyakundi, J. opined that:-“…for property to qualify as matrimonial property, it ought to have been acquired during the subsistence of the marriage between the parties unless otherwise agreed between them that such property would not form part of matrimonial property.”

40. The foregoing position on what constitutes Matrimonial Property was further addressed in P.O.M vs. M.N.K [2017] eKLRwhere the court appreciated that:“This is a suit for division of matrimonial property. The legal regime governing such endeavor is the Matrimonial Property Act, Act No. 49 of 2013. The relevant provisions are to be found in Part III thereof. According to those provisions, in particular section 7, such property is to be divided upon divorce or dissolution of the marriage. The prerequisites are that the parties ought to have been in a marriage, to have had acquired matrimonial property during coverture and for their marriage to have been dissolved as at the point orders on division of matrimonial property are being made. A party, who moves the court for orders relating to division of matrimonial property, or declarations thereon, must strive to bring his case within the prerequisites stated above.”

41. The Respondent is of the position that the suit property was acquired from proceeds of his business and before the marriage. The Applicant on the other hand has not given evidence as to when the suit property was acquired. No difficulty has been explained by the Applicant with respect to obtaining documents to establish when the suit property was acquired. The only clear position is that the same was transferred to another party in the year 2015 for a consideration of Kshs. 5,500,000. 00. The Applicant claims an equal share of the proceeds.

42. This Court is of the considered view that in order to establish a property as matrimonial property, it must be clear that the same was acquired during the subsidence of the marriage. The date of acquisition of the said property having not been established, means it would be fatal to assume that the same was acquired after 1986 when the parties got married.

43. Section 107 of the Evidence Act, Cap 80, Laws of Kenya provides that;“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

44. In view of the foregoing, the Applicant has failed to table evidence to the effect that the suit property was acquired during the pendency of the marriage thus the same cannot be found to be matrimonial property.

ii. Whether the Applicant made contributions in the acquisition of matrimonial property 45. The Applicant avers that she made both direct and indirect contributions towards the acquisition, development and maintained of the suit property. Further, she bore three issues with the Respondent, an averment not challenged by the Respondent. That she as well supplemented the Respondent’s earnings from her engagement with the Ministry of Agriculture as an extension officer, an averment not disputed by the Respondent.

46. It is a well settled principle that each case has to be considered on its own merits. Indeed, the Court of Appeal had this in mind in TKM v SMW [2020] eKLR where it is stated as follows:

“We bear in mind the edict in Muthembwa v. Muthembwa (2002) 1 EA 186, and many other decisions reminding the courts that in assessing the contribution of spouses in acquisition of matrimonial property, each case must be dealt with on the basis of its peculiar facts and circumstances but bearing in mind the principle of fairness.” 47. Contribution towards the acquisition of matrimonial property is defined under Section 2 of the Matrimonial Property Act, 2013 in the following terms:“In this Act, unless the context otherwise requires—“contribution” means monetary and non-monetary contribution and includes—a)domestic work and management of the matrimonial home;(b)child care;(c)companionship;(d)management of family business or property; and(e)farm work.”

48. Further, Section 9 of the Matrimonial Property Act provides that:“9. Acquisition of interest in property by contribution where one spouse acquires property before or during the marriage and the property acquired during the marriage does not become matrimonial property, but the other spouse makes a contribution towards the improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made.”

49. The Applicant annexed an RTGS transfer request in the sum of Kshs.200,000. 00 directed to the Respondent for purposes of premises construction. Further, a transaction of Kshs.120,000. 00 for “Naivasha structure construction” has been provided. It would appear that the Applicant made direct contributions in the sum of Kshs. 320,000. 00 for development of the suit property which reasonably elevated the value of the property.

50. Further, the Applicant was married to the Respondent for a period of close to three decades. The Applicant parted ways with the Respondent some time in 2014. The developments on the suit property having commenced prior to her deserting the Respondent, it would be reasonable to find that other than the direct contributions, she made indirect contributions.

51. In making the foregoing finding, I am guided by the position taken by the Court of Appeal in Civil Appeal No. 142 of 2018 in CWM-vs- JPM [2017] eKLR, where the Court recognized this reality and held as follows:“...Parties are of equal worth and human dignity, whatever their station in life. To the issue before us, it is obvious the appellant having been married for 18 years made some contribution to the family of Respondent at the time of such overture. In our view, that contribution, be it domestic work and management of the matrimonial home, child care or companionship falls within the definition of contribution under the Act".

52. I am, in view thereof, inclined to find that on a balance of probability, the Applicant made both direct and indirect contributions warranting acquisition in interest in the property by contribution as provided for in Section 9 of the Matrimonial Property Act.

iii. What is the ratio to be adopted in the division of the suit property and/or its proceeds? 53. It is uncontested that the suit property has since been sold to a third party. The consideration for the same was Kshs.5,500,000. 00. The Court thus cannot make orders with respect to shares of the suit property but on the proceeds of sale.

54. It is well settled in law that although spouses have equal rights in marriage, inter alia, right to separately acquire property, matrimonial property is not subject to equal distribution upon and/or during dissolution of marriage. A party has to demonstrate their direct and/or indirect contribution towards the acquisition of the property subject to division.

55. I am so guided by the Court of Appeal decision in P N N v.Z W N (2017) eKLR as regards to how matrimonial property should be divided where it was stated:“To my mind, all that the Constitution declares is that marriage is a partnership of equals. No spouse is superior to the other. In those few words all forms of gender superiority-whether taking the form of open or subtle chauvinism, misogyny, violence, exploitation or the like have no place. They restate essentially the equal dignity and right of men and women within the marriage compact. It is not a case of master and servant. One is not to ride rough shod over the rights of the other. One is not to be a mere appendage cowered into silence by the sheer might of the other flowing only from that other’s gender. The provision gives equal voice and is meant to actualize the voluntariness of marriage and to hold inviolate the liberty of the marital space. So in decision making; from what shall be had for dinner to how many children (if any) shall be borne, to where the family shall reside or invest-all the way to who shall have custody of children and who shall keep what in the unfortunate event of marital breakdown, the parties are equal in the eyes of the law.Does this marital equality recognized in the Constitution mean that matrimonial property should be divided equally? I do not think so. I take this view while beginning from the premise that all things being equal, and both parties having made equal effort towards the acquisition, preservation or improvement of family property, the process of determining entitlement may lead to a distribution of 50:50 or thereabouts. That is not to say, however, that as a matter of doctrine or principle, equality of parties translates to equal proprietary entitlement.The reality remains that when the ship of marriage hits the rocks, flounders and sinks, the sad, awful business of division and distribution of matrimonial property must be proceeded with on the basis of fairness and conscience, not a romantic clutching on to the 50:50 mantra. It is not a matter of mathematics merely as in the splitting of an orange in two for, as biblical Solomon of old found, justice does not get to be served by simply cutting up a contested object of love, ambition or desire into two equal parts. I would repeat what we said in Francis Njorogevs. Virginia Wanjiku Njoroge, Nairobi Civil Appeal No. 179 of 2009;“ … a division of the property must be decided after weighing the peculiar circumstances of each case. As was stated by the Court of Appeal of Singapore inLock Yeng Fun v Chua Hock Chye [2007] SGCA 33;‘It is axiomatic that the division of matrimonial property under Section 112 of the Act is not – and, by its very nature cannot be – e precise mathematical exercise’.”I think that it would be surreal to suppose that the Constitution somehow converts the state of coverture into some sort of laissez-passer, a passport to fifty percent wealth regardless of what one does in that marriage. I cannot think of a more pernicious doctrine designed to convert otherwise honest people into gold-digging, sponsor-seeking, pleasure-loving and divorce-hoping brides and, alas, grooms. Industry, economy, effort, frugality, investment and all those principles that lead spouses to work together to improve the family fortunes stand in peril of abandonment were we to say the Constitution gives automatic half-share to a spouse whether or not he or she earns it. I do not think that getting married gives a spouse a free to cash cheque bearing the words “50 per cent.”

56. In the case of M B O v J O O[2018] eKLR cited by the Applicant, the Court had this to say:“18. It is necessary to state that in a marriage union, which is predicated on trust, no spouse anticipates that one day they will have to prove every contribution that they make to the marriage as that would negate the very essence of trust which is the cornerstone of marriage unions. The learned Judge having appreciated the appellant and the respondent were married for 18 years, and 15 of those years the appellant was in gainful employment; she constantly took loans, having found the only property that was acquired with joint efforts was the matrimonial home where the appellant was residing; the fact that upon separation the respondent was able to purchase another home where he settled.”

57. Indeed, the Applicant contributed to the developments of the suit property and they parted ways with the Respondent a couple of years after the development of the same. However, by then she had gained beneficial interest in the suit property by virtue of both her direct and indirect contributions. The Applicant is thus entitled to a share of the proceeds from the sale of the property in the ratio of 25:75% in favour of the Respondent.

Disposition 58. For all the foregoing reasons, I am satisfied that the Applicant’s application is merited and make the following orders –a.That the Respondent is hereby ordered to pay the Applicant 25% of the proceeds of sale of the suit property in the sum of Kshs. 1,375,000. 00. b.That each party to bear its own costs.

59. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 15TH DAY OF DECEMBER, 2022G.W.NGENYE-MACHARIAJUDGEIn the presence of:1. Mr. Wairegi for the Applicant.2. Mr. Karanja for the Respondent-absent, duly notified online.