[2017] KEHC 2480 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

HCCC NO. 7 OF 2016

P M K…….………….……………………....PLAINTIFF

VERSUS

P R M….………...……..………………....DEFENDANT

J U D G M E N T

1. The plaintiff herein (name withheld) has brought this suit through a plaint dated 25th October, 2016 against the defendant (name withheld) claiming that he cohabited with the defendant since 2014 as man and wife and that the relationship has now broken down due to irreconcilable differences. Owing to this fact, the plaintiff has come to this court claiming that the property known as KARINGANI/NDAGANI/[Particulars withheld] measuring 0. 042 was acquired through their joint effort and therefore owing to the separation, the property should be split into two equal shares so that each partner can have his and her share.

2. The defendant in this case though served neither entered any appearance or defence. The case therefore proceeded on a formal proof. The plaintiff testified that he was living with the defendant as his wife but parted ways in the year 2015 due to some unspecified differences and that before they separated they had jointly acquired the property described above. He tendered a title deed as an exhibit (P Exh1) indicating that the property was jointly owned by himself and the defendant. He also tendered a written agreement (P. Exh 2) dated 18th February, 2014 showing that the two jointly bought the property. The plaintiff alleged that the two parties herein contributed equal amount of Kshs.650,000/- each being the purchase price.

3. The plaintiff further testified that they did not formalize their union but cohabited together for about 1 ½ years during which period they were blessed with one child before they decided to go separate ways. He urged this court to subdivide the property in two equal shares and tendered a valuation report (P.Exh3) that indicates that the current value of the said property is Kshs.2 million Kenya Shillings.

4. In his written submissions done through his learned counsels Ms Njeru Ithiga & Co. Advocates, the plaintiff submitted that his claims remain unchallenged as the defendant failed to file any defence despite service. It is submitted that the acquisition of the property in question was done through a joint effort as demonstrated by the evidence tendered.

5. On the question of marriage, the plaintiff submits and acknowledges that for his claim to stand the test of law, he is obliged to prove the existence of marriage between him and the defendant. He contends that he lived or cohabited with the defendant as husband and wife from 2014 to 2015 where they were both blessed with one issue and this has not been rebutted. He has further cited the provisions of Section 2 of the Marriage Act and contended that their relationship “resembled a marriage” within the meaning of Section 2 of cited Act. He has further submitted that their long period of cohabitation should be sufficient to presume marriage and cited the case of HORTENSIA WANJIRU YAWE –VS- PUBLIC TRUSTEE (No citation given) to support his contention. He further submits that that a presumption of marriage would arise even if it is established that they only cohabited for a period between 4 to 8 months.

6. The plaintiff contends that the marriage Act came into operation after the parties in this suit had already cohabited and that in his view means that the formalities prescribed under the Act does not apply and cited the provisions of Sections 98 of the Act to buttress that view. He has also cited the case JMM –VS- JNG [2015] to support the contention that the cited property in this cause be divided equally between himself and the defendant.

7. The plaintiff has brought this matrimonial cause vide a plaint which I find improper because the correct and proper way was by way of originating summons under Order 37 of Civil Procedure Rule because the plaintiff is seeking for ascertainment of his rights over a matrimonial property and subdivision thereof. The procedure adopted is nonetheless not fatal in view of the provisions of Article 159 (2) (d) which saves the suit for being struck out on procedural technicality.

8. Having saying that let me now consider the substance of the suit. The plaintiff’s main thrust in this suit is that he was staying with the defendant as a man and wife between the year 2014 to 2015 and on that basis this court should make a presumption of marriage between the two. He has however failed to state exactly when they began staying together. He has also failed to state either in his plaint or evidence when he separated from the defendant. So apart from saying that they were blessed with one issue of the union on 5th July, 2015 the plaintiff has not clearly stated if he began cohabiting with the defendant after or before the child was born. It was incumbent upon the plaintiff to establish the period in which he started cohabiting with the defendant and make a case that the period raises a presumption of marriage. However in view of the fact that the claims made by the plaintiff are not denied this court is prepared to make an assumption that the claims are factual or true.

9. This court also finds that the plaintiff’s claim that they jointly purchased the subject matter in this suit to be unchallenged and having perused the sale agreement (P.Exh2 ) and the title deed (P.Exh. 1) which is in joint names of both parties in this case, I am satisfied that the plaintiff has established the issue of joint ownership to the required standard in law which is on a balance of probabilities. This court therefore finds that on the basis of the evidence tendered, the property was acquired through the joint effort between the plaintiff and the defendant.

10. On the question of division of the property on the basis that the subject matter in this suit is matrimonial property within the meaning of Section 6 of the Matrimonial Property Act, this court finds that the evidence tendered by the plaintiff falls short of the legal requirements. The law clearly describes what constitutes matrimonial property. Matrimonial Property Act No. 49 of 2013 defines matrimonial property as follows:-

“For purposes of this Act, matrimonial property means;

a) The matrimonial home or homes

b) Household goods and effects in the matrimonial house or houses or

c) Any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.”

Now pausing there for a moment, it is clear from the evidence tendered that the plaintiff’s claim falls on (c) above because the plaintiff’s claim is based on joint contribution and acquisition of the property in this suit. As I have already observed above this court is prepared to assume that the property described in this suit forms at least part of the matrimonial property going by the above provisions and the fact that the plaintiff’s claim has not been controverted. However a look at the provisions of Section 7 of the Matrimonial Properties Act shows that the plaintiff’s prayer for subdivision is not competent because the plaintiff has not established his cause of action.

Section 7 provides as follows:-

“…………..subject to Section 6(3), ownership of matrimonial property rests in the spouses according to the contribution of either spouse towards its acquisition and shall be divided between the spouses if they divorce of their marriage is otherwise dissolved.”

Section 6(3) provides that parties to a marriage may enter into pre-nuptial agreement. So the Section is not relevant here.

In this case, there is nothing indicating that either;

(i) There is a pending cause in court to formalize the separation of the parties herein or dissolution of the marriage

(ii) The parties have formally divorced.

The matrimonial causes Act only comes into play once a party establishes the following:-

(i) That there was a marriage between the parties

(ii) That the two parties are no longer husband and wife through a dissolution of marriage, formal judicial separation or a pending cause in court for the same.

11. This court has perused through the cited decision in the case of JMM-VS- JNG [2015] eKLRand finds that the facts of this case are quite distinguishable from the cited case. In the cited case the plaintiff/applicant and the defendant/respondent had cohabited for 26 years and the respondent had applied for judicial separation indicating that there was a presumption of marriage. In this instance, the plaintiff has not established that there is any formal separation (judicial separation) or a divorce to establish a cause for division of matrimonial property. The parties herein may have actually lived as man and wife and may have differed along the way as couples at times do but there is nothing to show that the two may not bury their differences and came together again. If the evidence given by the plaintiff is anything to go by, the parties herein have been separated for hardly two years and this could explain why neither of the parties have taken any step for either judicial separation or dissolution of marriage if at all such marriage existed in the first place. I find that the provisions of Section 98 of the Marriage Act cited by the plaintiff cannot save this suit because the section only recognizes substituting marriages under customary law or any law prior to the commencement of the Marriage Act. It does not say anything to do with the cause of action in this suit.

In the premises this court finds that this suit is either premature or discloses no cause of action. Either way it is untenable and incompetent and I have no other option but to strike it out but I make no order as to costs because the defendant entered no appearance nor defended the suit.

Dated and delivered at Chuka this 2nd day of October, 2017.

R.K. LIMO

JUDGE

2/10/2017

Judgment signed, dated and delivered in open court in the presence of Mr. Ithiga Advocate for the plaintiff.

R.K. LIMO

JUDGE

2/10/2017