[2022] KEHC 12585 (KLR)

Ndere v Warui (Miscellaneous Application 24 of 2017) [2022] KEHC 12585 (KLR) (15 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12585 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Application 24 of 2017

JN Onyiego, J

July 15, 2022

Between

Ruth Njoki Ndere

Plaintiff

and

Stephen Ndere Warui

Defendant

Judgment

1. This matter was originally filed as Civil Suit Number 196/2003 (OS). However, at some point, the mater remained dormant for a long time owing to the disappearance of the court file. Later, an application for reconstruction of the file was made. Fortunately, the file was traced and due to change of division, the file was given the current number 24/2017.

2. Basically, the applicant herein one Ruth Njoki Ndere moved this court vide an originating summons dated August 7, 2002 seeking;a.Whether the respondent has any properties namely; washing machine, 6 banner cooker, Sony radio, television, bed, VCD machine, dining table, saloon equipment, kitchen ware, dining set, kitchen wall cupboard, personal belongings, chest drawer, wardrobe, sewing machine, plot No 811/IVI/MN -Majengo, Thika Mun/Block 19/1003, plot No 1600 Mangu Investment, 18 shares in certificate No 511, Mikindini and plot number 115/Mikindani and whether they are matrimonial property or solely belonging to the applicant.b.Whether the respondent enjoys any right or interest in the aforesaid properties.c.Whether the respondent shall be ordered to vacate, hand over and surrender all the properties to the applicantd.Whether the respondent should account for all the properties in his possession and all other benefits and income received therefrom to the applicant

3. In support of the application, the applicant swore an affidavit on June 7, 2003 stating that she got married to the respondent under Kikuyu customary law the year 1974 and that their marriage was blessed with four children.

4. She averred that four years prior to the institution of these proceedings, the respondent turned violent against her thus forcing her to abruptly vacate their matrimonial home. She claimed that all the properties listed in the originating summons were acquired solely by her through her own effort and without any contribution from the respondent.

5. In response, the defendant /respondent filed a replying affidavit sworn on September 11, 2003 stating that; his marriage to the applicant was formalized under the Marriage Act the year 1982; he solely purchased all the properties listed in the originating summons without any contribution from the applicant and that he bought the stated properties in cash using proceeds from his salary and terminal benefits.

6. He deposed that, all movable items among them; radio, cooker, bed, sewing machine, dining table, 6 chairs, washing machine, saloon equipment and a car, were carried away by the applicant when she vacated their matrimonial home.

7. He further stated that the court lacks jurisdiction to entertain the matter and that the application is frivolous, vexatious, scandalous, bad in law and amounts to an abuse of the court process. That the subject marriage having not been dissolved, the court had no capacity to distribute the estate.

8. In her rejoinder, the applicant filed a supplementary affidavit on September 29, 2003 claiming that although most of the properties reflected the respondent’s / defendant’s name, they were financed by her. She however attached an allotment letter from Mombasa Municipal council dated November 16, 1993 showing allotment of plot No 115 Mikindani in their joint names.

9. The respondent went further to file a further affidavit sworn and filed on October 1, 2002 stating that he was allocated plot No 115 Mikindani solely on August 6, 1985 and completed construction of a house thereon in January 1992. He claimed that the allotment letter in their joint name was only for convenience purposes to enable the applicant secure owner occupier house allowance from her employer.

10. In his further opposition to the originating summons, the respondent filed grounds of opposition on October 30, 2003 basically reiterating the content in his replying affidavit. He simply stated that the applicant had no beneficial interest in the suit properties as she had failed to prove or establish trust and that the properties in question have since been transferred to 3rd parties.

11. During the hearing, the applicant adopted the content of her witness statement dated November 12, 2018 and filed on November 15, 2018 in which she reiterated her averments contained in the affidavit in support of the application. She stated that during the subsistence of their marriage, they acquired immovable properties including Mikindani plot No 115 where they lived as a family but later rented it at Kshs 40,000 per month. That they also had a rental house at Magongo from which they received rental income of Kshs 12,000 per month.

12. She further claimed that they had two other plots at Thika, and 10 acres at Thathini Shamba. It was her case that she deserved compensation from the defendant to take care of all expenses she incurred in educating their children Ben and Isabella and also the cost incurred in burying their daughter Nduta who died 2006 and Timothy Mwai who died 2012.

13. She stated that the properties in question were bought using money acquired from her salary as an employee of Posts and Telecommunication and later from her saloon business plus supplies of various stuff to hotels. In a nutshell she claimed to have contributed 80% in acquiring the stated matrimonial property.

14. On cross examination, she stated that she started cohabiting with the defendant in 1974 after conceiving while in form two thus forcing her to drop out of school to look after the baby. That her parents took her back to finish her studies which she did in 1978. That she got formal employment with posts and telecommunication in 1984 by which period the respondent/defendant was sacked leaving her as the sole bread winner for the family.

15. She admitted that plot No 115 Mikindani was allocated to the defendant in 1985 by which time she was not working. On further cross examination, she stated that they constructed a house on the said property out of her own salary and funds raised from business.

16. Touching on Mangu property plot 1600, she claimed that she gave the defendant Kshs 50,000 in cash to buy the land. As to Singer sewing machine, she admitted that it was bought for her by the defendant to start business in making hats which she supplied to hotels besides operating a hair salon.

17. Touching on Miritini property, she claimed that the property was sold by her and the defendant used the proceeds to buy a matatu whose income was put in a joint account to support the children.

18. As to Magongo property comprising a Swahili house, she admitted that it was bought by the defendant before she started working. she claimed that she later contributed towards its development after taking a loan from KCB. Concerning Thathini property, she admitted that it was not pleaded for and that she did not have any evidence of its existence nor does she know of its location.

19. On his part, the respondent/defendant basically adopted his replying affidavit and further affidavit in response to the application, witness statement dated March 26, 2019 although not on record, list of documents dated 1st June, 2018 and a supplementary list of documents filed on 1st April, 2019.

20. Concerning Thika property, he claimed that it was acquired through his own effort using his shares in a village land buying company known as Mangu in 1975. That by this time the applicant was a student in school and he was not in any marital relationship with her.

21. As to plot No 19/1600, he claimed that it belongs to his sister. He produced a letter dated May 30, 2003 for Thika Municipality Block 19/1600 in the name of Warui Magdalene Wambui registered on the same day.

22. As to the property known as Thathini, he claimed that it belonged to his step father who offered to gift him but later changed his mind. He declined knowledge of its existence. He stated that he started cohabitating with the applicant in 1981 through customary law marriage and not 1974 as alleged by the applicant. On cross examination, he admitted that he knew the applicant while she was in school in 1974.

23. As to Mikindani plot 115, he confirmed that it was allocated to him but later enjoined the applicant for purposes of securing house allowance. He admitted that the property belongs to the two of them and he had not sold it.

24. Upon close of the hearing, parties respective counsel agreed by consent to file written submissions. Unfortunately, only the respondent’s counsel filed within the stipulated period.

Respondent’s submissions. 25. Through the firm of Kanyi and company advocates, the respondent/defendant filed his submissions on September 20, 2021. learned counsel submitted on three issues;a.Whether the parties started cohabiting before solemnizing their marriageb.Whether the listed movable properties are matrimonial properties or belonged to the plaintiffc.Whether the immovable properties being plot No 811/VI/MN/Magongo , Thika Mun 19/1003, plot No 1600/ Mangu, investment, 18 shares in certificate number 511 and Mikindani plot No 115 Mikindani belong to the plaintiff or are matrimonial property.

26. On the question whether the plaintiff/applicant and the respondent started cohabiting as husband and wife in 1974, counsel submitted that it was not possible as the applicant was 15 years who according to her evidence finished school in 1979 hence started cohabiting in 1981.

27. As to movable property, counsel submitted that they were all in possession of the applicant who did not controvert that allegation contained in the affidavit in reply to the application. That among the movable properties valued at Kshs 300,000 include motor vehicle Reg No KAR 958B taken by the plaintiff which should be taken into account when sharing the property.

28. Regarding proceeds in KCB accounts Nos. 204 723 616 and 204 765 530 counsel submitted that the applicant removed the defendant from being a signatory and later withdrew Kshs 2,340,000 without the defendant’s consent or knowledge hence matrimonial property which should be considered by the court when distributing the estate.

29. On plot No 811/VI/MN Magongo, counsel submitted that, there was no evidence tendered on how it was acquired. It was contended that, the property was acquired in 1976/77 from the defendant’s salary and construction completed in 1980 before the applicant got married in 1981. Counsel went further to state that the property was sold before the originating summons was filed hence not matrimonial property.

30. As to Thika 19/1003, counsel submitted that the same was acquired through Mangu shares in 1975 which was before the couple got married hence not matrimonial property.

31. Regarding plot No 1600, counsel submitted that that property is owned by the defendant’s sister. As to plot No 115 Mikindani, counsel contended that both parties contributed in its acquisition and development hence can be shared equally.

Determination. 32. I have considered the application herein, response thereto and testimony by both parties. I have also taken into account submissions by counsel for the respondent.

33. The suit herein is expressed to have been brought pursuant to the Married Women’s Property Act 1820 although it should be 1882. However, the originating summons was not amended so as to apply the Matrimonial Property Act of 2013. In the circumstances therefore, the cause of action having accrued and the proceedings having been instituted the year 2003, the law applicable in determining division of matrimonial property is the Married Women’s Property Act 1882 of England which provides;“In any question between husband and wife as to title or possession of property, either party...may apply by summons or otherwise in a summary way to any judge of the high court and the judge of the high court may make such orders with respect to the property in dispute, and to the costs of and consequent on the application as he thinks fit.”

34. Having identified the applicable law, issues that emanate for determination area.Whether the parties contracted their customary law marriage in 1974. b.Whether the listed properties constitute matrimonial property.c.What was the contribution of each party.

35. There is no dispute that the plaintiff herein and the defendant solemnized their marriage on January 25, 1991 and the same got dissolved in 2015. There is also no dispute that prior to 1991, they had cohabited as husband and wife under Kikuyu customary law. However, what is in dispute is the year they started cohabiting.

36. According to the plaintiff, she and the defendant became friends and the defendant conceived while she was in form two. That after delivery, her parents took her back to school till she completed form 4 in 1979. That they continued staying together as husband and wife until 1984 when they she got a job. On his part, the defendant stated that they started staying together in 1981.

37. From the history and conduct of both parties, the two were mere friends from 1974 a relationship that gave rise to babies. There was no proof of any marriage formalities or Kikuyu customs having been performed to prove existence of any customary marriage. In the case of Hortensia Wanjiku Yawe v the PublicTrustees, Civil Appeal 13/76 the Court of Appeal laid down three principles regarding proof of customary marriages in court as follows.a.The onus of proving customary law marriage is generally in the party who claims it;b.The standard of proof is the usual one for a civil action, namely, the balance of probabilities;c.Evidence as to the formalities required for a customary law marriage must be proved to that evidential standards.

38. In the absence of any proof of customary marriage in 1974, I will take the year 1981 the period admitted by the defendant as the time they started staying together as husband and wife. The next question is, what properties constitute matrimonial property. There are two categories of properties listed by the applicant;a.Movable properties; andb.Immovable properties

39. From the list, the movable properties include a singer sewing machine which the defendant allegedly bought for the applicant to use in doing business. The rest are house hold effects like TV, radio, dining table, saloon equipment, kitchen ware and personal belongings.

40. In his replying affidavit, the defendant stated that they were all carried away by the applicant using their family car. His allegation was not controverted in her supplementary affidavit. I will therefore take the defendants’ s position to be the true position hence nothing to be returned nor compensated.

41. Regarding immovable property, the applicant listed the following properties;a.Plot No 811 VI/MN/Majengob.Thika Mun /block 19/1003c.Plot No 1600 Mangu investmentd.18 shares in certificate 511e.Mikindani plot 115/Mikindani

42. Before I endeavor to address each property individually, I wish to state that the defendant did not file any counter claim nor did the applicant amend the application to include any other property. Any property which is not pleaded in the pleadings like Mthithini shamba cannot be the subject of distribution. In other words, parties are bound by their pleadings. See David Sironka Ole Tukai v Francis Arap Muge & 2 others Civil Appeal No 76 of 2014 [2014] eKLR where the court held that;“...and it is for the purpose of certainty and finality that each party is bound by his own pleadings.”

43. For property to form part of matrimonial property, the same must have been acquired during the subsistence of marriage. It is trite law that whoever lays claim over any property on account of being matrimonial property is under obligation to prove contribution whether indirect or direct. This position was clearly espoused in the case of Peter Mburu Echaria v Priscillah Njeri Echaria [2007] eKLR. Where the court stated that;“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 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 is equity” while holding the caution of lord Pearson in Kissing v Kissing (1970) 2 All ER 780 at ...”

44. Similar position was restated in the case of PNN v ZWN [2017] eKLR. I will now turn to each property for determination on whether it constitutes matrimonial property and who contributed and therefore entitled to what.

Plot No 811/VI/MN/Magongo 45. The defendant claimed that this property was bought in 1976/1977 before he married the applicant. The applicant confirmed the same position on her cross examination. She however claimed that she later assisted towards its improvement as it was a Swahili house. To counter the claim, the defendant claimed that the property was sold long time ago even before these proceedings commenced. He attached a transfer to the replying affidavit reflecting that the property was transferred to a third party Wambui Macharia on June 17, 2003.

46. It would appear that the property in question was sold about two months preceding the filing of these proceedings. I have no doubt the purported sale was intended to circumvent any possible claim over the same by the applicant. Unfortunately, none of the parties enjoined the purported purchaser who may have bought the property as a bona fide purchaser.

47. In my view, the property having changed hands way before these proceedings were instituted, it will be unfair to cancel ownership of title by the current owner. That notwithstanding, the property was acquired before coverture hence the applicant cannot lay claim over the same. Regarding contribution towards its improvement, there was no attempt made to explain the nature of development or improvement made and when. To that extent, it is my finding that that property is not available for distribution.

Plot No 19/1003 Mangu Investment 48. In respect to this property, the applicant merely stated that she was aware that the defendant owned some property in Mangu. She does not know where it is located. On the other hand, the defendant stated that this property was bought through a village land buying company known as Mangu in 1975. These evidence was not controverted. A copy of the certificate issued on March 10, 1978 issued by Mangu investment was attached as proof. This was way before the applicant and defendant started staying together as husband and wife. Infact, around this time, the applicant was in form three. Accordingly, this property is not matrimonial property hence not available for distribution.

Plot No 19/1600 Mangu 49. The defendant stated that this property belongs to his sister. He attached a title deed in the name of Warui Magdalene Wambui issued on May 30, 2009. The applicant also claimed that the property belongs to the defendant. The applicant did not furnish any proof to establish that the property was acquired by the defendant during the subsistence of their marriage and that there were improvements done on the same. Accordingly, I do not find any evidence to conclude that this property forms part of matrimonial property.

50. It is not enough for a party to merely list and casually claim a share on everything and anything owned by the adverse party without making any effort to connect his or her effort direct or indirect towards its acquisition or development. Marriage perse is not an automatic vehicle to ascend to wealth without sweat. A party has a duty to be useful in investment while in a marriage relationship. To ride on companionship alone which in any event is a two way traffic act or responsibility to claim wealth is in my view unfair. There can certainly be no free property for a spouse in a marriage to walk away with after dissolution of marriage courtesy of the institution of marriage alone.

Plot Mikindani 115/Mikindani 51. This property is not disputed. It was allocated by Municipal Council of Mombasa to the two parties jointly during the subsistence of the marriage. The defendant admitted on cross examination that the property was intact and it belongs to the two of them. Accordingly, on parties’ own admission, the property is declared as matrimonial property acquired and developed through their joint effort during coverture. I will therefore share the property amongst the two in the ratio of 50:50%.

18 Shares In Mikindani Plot 115 52. This plot was pleaded but no documentation was attached to establish its existence. Parties did not attempt to lay any proof of ownership. Accordingly, it is my holding that it does not exist hence not available for distribution.

53. In a nut shell, the only property this court finds to have been acquired during coverture and therefore shared out equally is plot No Mikindani/115/Mikindani. The property can be sold through a mutually agreed valuer in a public auction and the proceeds realized therefrom be shared out equally. Each party shall be at liberty to buy the other party’s share with the consent of such other party. This being a family related dispute, I will not make any order as to costs. Each party shall bear own costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 15TH DAY OF JULY, 2022JN ONYIEGOJUDGE