[2022] KEHC 2416 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

ORIGINATING SUMMONS NO.5 OF 2018

PMR............................................................................................APPLICANT

VERUS

JWM alias JWR

SWM

JKM......................................................................................RESPONDENTS

RULING

1. Vide an Originating Summons dated and filed on the 2nd July, 2018, PMR (hereafter the applicant ) sued his wife JWM (hereinafter the 1st respondent ) and their two children ( hereinafter the 2nd and 3rd respondents respectively) seeking division of several properties alleged to have been acquired during the subsistence of their marriage.

2. Parties agreed by consent to settle the dispute without going to full trial. Accordingly, they executed a written consent contained in a letter dated 7th November, 2018 which was adopted as an order of the court on 15th November, 2018. The said consent reads as follows;

By consent.

i. The Applicant and the 1st Respondent have agreed to forgive one another and give their marriage a second chance.

ii. The Applicant and the 1st Respondent have agreed that all the suit properties be held jointly by the Applicant and the 1st Respondent and the marriage to continue as before.

iii. The bank account number 0790xxxxxxxxx with Equity Bank Ltd, Voi Branch held in joint names to continue being operated by the Applicant with notification to the 1st Respondent as it has been operated before this suit was filed.

iv. The 1st Respondent shall give the Applicant the car and the logbook of motor-vehicle KCN xxxx and transfer the same in the name of the Applicant and the Applicant shall buy a new car for the 1st Respondent to be registered in her name.

v. The Applicant shall file a notice of withdrawal of the divorce proceedings in Divorce Cause Number 8 of 2018 pending in Kilifi Court.

vi. The following properties shall be held and registered in the joint names of the Applicant and the 1st Respondent and a conveyance shall be effected forthwith to reflect the same:-

1) Plot known as Magumoni/Thuita/xxxx

2) Plot known as Magumoni/Thuita/xxxx

3) L. R. Number Karingani/Ndagani/xxxx

4) L. R. Number Karingani/Ndagani/xxxx

5) Plot no. xx Ndara ‘A’ Land Adjudication Section,Voi consisting of 11 guest rooms going for Kshs 700 a night and 9 shops rented at Kshs 7000 per month- PLOT NUMBER xxx, Voi with Zion Guest House.

6) Unidentified plot at Maweni ,Mtwapa with 7 rental rooms.

vii. Plot no. xxx Kaloleni Juu Ndara ‘A’ Land Adjudication Section, Voi shall be gifted to the 2nd Respondent.

viii. Sophia Voi allocation number 106 with the buildings thereon shall be gifted to the 3rd Respondent and the rent shall continue to be collected by the applicant and the 1st respondent for investment.

ix. Plots in Mtwapa Known as L. R. Number xxxx/xxx Original Number 9122/5/45 also known as Plot number xx and L. R. Number xxxx/xxx Original Number xxxx/x/xx also known as Plot number xx both curved out of L. R NO. xxxx/x(Original Number xxxx/x/x two title deed have been issued shall each remain in the names of the applicant and the 1st Respondent separately.

x. Subdivision Number xxx (Original number xxx/xx) Section III MN registered in the applicant and the 1st Respondent’s name in Mtwapa shall continue to be held in joint names

xi. The Applicant and the 1st Respondent have agreed to continue running the Chicken and Cattle business separately as they did before.

xii. All cases reported to the police by the Applicant and the 1st Respondent shall be withdrawn forthwith.

xiii. The 2nd and the 3rd Respondent consent and approve the terms of this consent.

xiv. Each party shall bear his/her own costs of this suit.

xv. Each party be at liberty to apply

3. Subsequently, the above consent was revised vide another consent dated 8th August, 2019 which consent was adopted as an order of the court on 6th February, 2020. Therefore, the second consent which varied the terms of the first consent reads as follows;

By consent,

(i) That paragraph (i).(iii),vii),(ix),(x),(xi) for the consent dated 7th day of November 2018 and executed on even date shall remand previously agreed and are not varied by the terms of this consent.

(ii) that the terms of paragraph (ii) and (vi) of the consent dated the 7th day of November 2018 are varied in the following terms that the applicant has gifted the 1st respondent as a spousal gift he following properties

(a) Unidentified plot at Maweni with 7 rental room.

(b) Alpha guest house plot No xx Ndara “A” land adjudication section Voi

(c) Zion Guest use /Voi Plot No xxxx/xxx

(d) Mtwapa Luxury Plot No Cr xxxx

(ii) And the 1st respondent has gifted the applicant spousal gift the following properties

(a) Zion guest house Mtwapa Plot No xxxxx

(b)Chuka plot L.R No Karingani/Ndagani/xxxx

(c)Magumoni/Thuita/L.R No.Magumoni/Thuita /xxxx

(d) House in Mukuuni Meru County

(iii)The parties acknowledge that paragraphs (i) (iii) (vii) (viii) (xi) of the consent dated 7th day of November, 2018 have been complied with by the parties as agreed in the consent.

(iv) The 2nd and 3d respondents consent and approve the terms of his consent

(v) Each party be at liberty to apply.

4. Later, the applicant moved this court vide a notice of motion dated 2nd Setember,2021 seeking orders that;

i. That this application be certified as urgent and be heard exparte in the first instance.

ii. That this honourable court be pleased to issue a vesting order unto the applicant /decree holder ownership of Plot Number Zion Guest House Mtwapa Plot No xxxx as per this hounarble court decree herein.

iii. That this honourable court does order the 1st respondent/judgment debtor to sign transfer documents for the said plot Number /Zion Guest House Mtwapa Plot No. xxxx in favour of the applicant/decree holder forthwith and in default the deputy registrar of this honourable court be ordered to execute the same on behalf of the 1st respondent/judgment debtor.

iv. That the land Registrar in Kilifi Land Registry be directed to dispense with the production of the copies of the PIN, Identity card and passport size photograph of 1st respondent /judgment debtor while registering plot number Zion Guest House Mtwapa Plot No xxxxx should the 1st respondent/judgment debtor decline to supply the said documents.

v. That the 1st respondent /judgment debtor be detained at Shimo la Tewa prison for a period of six months or as specified by the court for disobeying the consent order executed by her and recorded in court in her presence.

vi. That costs of this application be provided for by the 1st respondent

5. The application is premised upon grounds stated on the face of it and averments contained in the affidavit in support sworn on 2nd September, 2021. It is the applicant’s case that the 1st respondent has refused and or failed to execute nor surrender necessary documents to facilitate transfer of plot No. Zion Guest House Mtwapa Plot No xxxxx pursuant to a consent agreement in the letters dated 7th November 2018 and 8th August 2019.

6. That the applicant stands to lose the loan facility already approved under favourable terms while the respondents continue enjoying the use of their properties already transferred to them. He further stated that the loan facility taken in his joint names with the 1st respondent stands to suffer non-repayment as he is the one servicing the loan yet the guest house business is compromised by failure to develop the same property on which it is erected.

7. Upon service of the application, the 1st respondent did not file any response. Instead, she chose to file a notice of Preliminary Objection dated 20th September, 2020 arguing that;

i. The issues raised herein are res-judicata as they have been heard and determined by this honourable court and consent dated 6th February, 2020 adopted.

ii. That the orders sought in the application are inconsistent with the final order dated 6th February, 2020 in the following terms;

(a) That order number 10; that the plot referred to as Plot No xxxxx is the same plot referred to under Order number X as subdivision xxx ( Original number xxx/xx Section III MN), which order is to the effect that the said property is to be held in the joint names of the applicant and 1st respondent.

(b) That the application therefore seeks to set aside the consent orders of this court recorded on the 6th February, 2020.

8. When the matter came up for hearing, the court directed for the application and Preliminary Objection to be heard together. Parties canvassed the application orally. Ms Osino appearing for the applicant reiterated the content contained in the affidavit in support of the application. Learned counsel contended that the application was not opposed by the 1st respondent who failed to file a replying affidavit on matters of fact. That the preliminary objection does not meet the threshold set out in the celebrated case of Mukisa biscuits considering that it does not raise pure points of law.

9. Counsel submitted that all properties were transferred as per the consent order save for Zion Guest House Mtwapa plot No xxxx that was given to the applicant as per the consent order adopted on 6th February, 2020. That the 1st respondent has ignored the order by refusing to execute and surrender necessary documents to facilitate transfer of the subject property.

10. M/s Osino urged the court to order the 1st respondent to execute necessary transfer documents or in the alternative order the Deputy Registrar to sign on her behalf and that the Land Registrar to dispense with the requirement for production of those documents. In support of this proposition counsel relied on the decision in the case of EMM Vs GWM ( 2018) e KLR, In re- estate of Simon Kiprop Cheruiyot ( deceased ) (2021) e KLR, Simon P Kite Chemoltor Vs William Loishakau ( 2017) e KLR and Esther Mvunde Vs Felix Moibet, divorce No 31/2015 where various courts made orders for the respective Deputy Registrars to execute documents to transfer subject properties in compliance with court orders on behalf of a disobedient party.

11. Regarding the argument by the 1st respondent that order No X was not reviewed, Counsel opined that the same was reviewed under the consent adopted on 6th February 2020.

12. On their part, M/s Ogoti for the respondent urged the court to find that order No 10 directed that plot No xxx (Original No xxx/xx) be jointly owned. That the plot is the same as plot No xxxx Zion guest house Mtwapa which the applicant seeks now transferred to himself absolutely. That order No X is still valid hence it will amount to resjudicata if the court were to make fresh orders on the same.

13. As to why the 1st respondent did not file a reply, it was argued that they thought the preliminary objection would have disposed of the matter with finality.

14. I have considered the application herein and the preliminary objection filed thereof. Further, I have considered oral submissions by both counsel.

15. The crux of the matter is whether the prayers sought amounts to resjudicata or better still whether the application seeks to amend the consent order entered on 6th February, 2020 through the backdoor. Whereas the application is not opposed by way of a replying affidavit, that does not mean that the application will automatically succeed. The applicant is duty bound to prove that he has a meritorious application see Gideon Sitelu Konchellah Vs Julius Lekakeny Ole Sunkuli &2 others ( 2018)e KLR.

16. It is the applicant’s case that by another consent dated 8th August, 2019 and adopted as an order of the court on 6th February 2020, certain terms of the consent dated 7th November, 2018 were reviewed. At stake is the Plot referred to as Zion Guest House Mtwapa Plot No xxxxx. The consent dated 8th August, 2019 reviewed certain terms of the consent dated 7th November, 2018 and more particularly clauses ii & vi.

17. According to clause ii of the consent dated 8th August, 2019 there are two parts. The 1st part constitutes of paragraphs a -d being spousal gifts given to the 1st respondent by the applicant. These properties include;

a) Unidentified plot at Maweni with 7 rental rooms.

b) Apha guest house plot No xx Ndara “A” land adjudication section Voi

c) Zion Guest use /Voi Plot No xxxx/xxx

d) Mtwapa Luxury Plot No Cr xxxxx

18. On the second part of clause (ii), the 1st respondent also gifted the applicant some properties referred to as;

a) Zion guest house Mtwapa Plot No xxxxx

b) Chuka plot L.R No Karingani/Ndaganixxxxx

c) Magumoni/Thuita/L.R No.Magumoni/Thuita /xxxx

d) House in Mukuuni Meru county

19. Parties seem to agree that all properties as per the two consents have been transferred except one i.e Zion Guest House xxxx which the 1st respondent claims is the same as subdivision no.xxx (Original No xxx/xx section 111 MN) registered in their names hence their joint property in consonance with clause x of the consent dated 7th November, 2018 which was not specifically affected by the consent dated 8th August, 2019.

20. From the record, there is nothing attached to show that the plot referred to as xxx in clause x of the consent dated 7th November, 2018 is the same as guest house Plot No xxxxx. This allegation which is a matter of fact was not substantiated by the 1st respondent. Although the, consent dated 8th August, 2019 provides that paragraphs (clauses) (i) (iv)(vii)(vii) (ix)(x) and (xi) were not affected, the inclusion of clause ii in the consent of 8th August, 2019 automatically affected clause No X of consent dated 7th November, 2018.

21. Ms Ogoti stated that the two plots are the same but that is evidence from the bar. This is a matter of fact which should have been rebutted through affidavit evidence and not a preliminary objection.

22. In the absence of any evidence that the two plots refer to the same thing, the only logical conclusion remaining is that they are independent of each other as they are bearing different registration numbers hence there is no linkage that the two refer to the same plot.

23. It is trite that he who alleges must prove. In this case, the 1st respondent lost a chance in proving that the properties refer to the same thing by attaching evidence. This would have been possible through filing a replying affidavit. Consequently, the only standing issue is whether the 1st respondent is supposed to transfer property known as on xxxxx Mtwapa.

24. The consent dated 8th August, 2019 is very clear. There is no ambiguity in clause ii part two which provides for transfer of plot known as Zion Guest House xxxxx as a spousal gift to the applicant. Nobody disputes the signing of the consent. The question is, for what purpose was plot no. Zion guest house Mtwapa xxxxx introduced in clause ii of the consent dated 8th August 2019? Even if we found that the two plot numbers refer to the same thing i.e plot referred in clause x of the consent dated 7th November 2018 and clause ii of the consent dated 8th August, 2019, clause ii of the consent of 8th August, 2019 will supersede clause x of the consent dated 7th November, 2018 being the latter agreement.

25. Consequently, the argument that the prayers sought seeks to amend the order is not correct. In my view, the doctrine of res-judicata does not apply as what is being sought is the implementation and or execution of the consent order. Accordingly, the consent order dated 7th November, 2018 and 8th August, 2019 must be obeyed to the letter.

26. As to whether the 1st respondent should be committed to civil jail, the same is subject to proof of salient ingredients for contempt of court to apply. It is trite law that a court order must be obeyed to maintain and uphold the dignity of the court. See Teachers Service Commission Vs Kenya National Union of Teachers and 2 others ( 2013) e KLR where the court held that;

“the reason why courts will punish for contempt of court is to safeguard the rule of law which is fundamental in the administration of justice...”

27. In Hadkinson Vs Hadkinson ( 1952) 2 ALL E.R 567 ,Romer J expressed himself thus;

“It is the plain unqualified obligation of every person, against, or in respect of who an order is made by competent jurisdiction to obey it unless and until that order is discharged.”

28. Before a court could punish anybody for contempt of court, the applicant must prove that the order was known, it was unambiguous, there is disobedience and that the disobedience it was deliberate. In this case, there was genuine confusion between the order clause X in the consent dated 7th November, 2018 against clause ii part two of the consent dated 8th August, 2019. With that misinterpretation, I do not find that the 1st respondent deliberately disobeyed the order. I will therefore spare her from any liability.

29. In view of the above holding, I do direct the 1st respondent to execute and surrender all transfer documents to the necessary authorities or institution to effect the transfer of Zion Guest House plot No xxxxx to the applicant within 30 days in default the Deputy Registrar to sign on her behalf and the Land Registrar Kilifi to dispense with production of the needed documents. In so directing, I am guided by the holding in the case of EMM Vs GWM (Supra) where the court made similar orders to ensure compliance with court orders.

30. As regards the preliminary objection, the same amounts to pleading matters of fact and not points of law. In the case of Mukisa Biscuits Manufacturing Company Vs Wast End Distributors Limited (1969) E.A 696 the court held that a Preliminary Objection must be argued on a point of law or on the assumption that all facts pleaded by the other side are correct and it cannot be raised if any fact has to be ascertained or if what is sought is exercise of judicial discretion.

31. As stated above, the preliminary objection is not based on any point of law which if upheld would dispose of the matter with finality. Accordingly, the preliminary objection is dismissed. In conclusion, the application is allowed with orders that;

a) The 1st respondent is hereby directed to execute and surrender all necessary transfer documents to facilitate transfer of Zion Guest House Mtwapa Plot No xxxxx to the applicant within 30 days and in default the Deputy Registrar to execute the same and that the Land Registrar Kilifi do dispense with the requirement for production of such documents.

b) In view of order (a) above, a vesting order be and is hereby issued into the applicant/decree holder ownership of plot known as Zion Guest House Mtwapa Plot No xxxxx.

c) This being a family related issue, each party to bear own costs

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 15TH DAY OF FEBRUARY, 2022

J .N.ONYIEGO

JUDGE