[2017] KEHC 1831 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CIVIL SUIT NO. 10 OF 2015

IN THE MATTER OF ARTICLE 45(3) OF THE CONSTITUTION OF KENYA, 2010

IN THE MATTER OF SECTION 7 OF THE MATRIMONIAL PROPERTY ACT NO. 49 OF 2013

BETWEEN

R R K…………………................................. PLAINTIFF

AND

J M N……..................................................DEFENDANT

J U D G M E N T

1. By originating summons dated 16/10/2015, the plaintiff seeks for orders that all the properties acquired by the joint funds and efforts of the parties during their marriage be divided between them. The parties got married under Kiembu customary law in 1979 which marriage was dissolved on 24/09/2015.

2. The plaintiff testified that when they got married, the parties were both employees of Barclays Bank of Kenya where they worked up to 1998 and 1999 respectively. During the subsistence of the marriage, the parties jointly acquired various properties most of which were registered in the name of the defendant. The properties listed herein are registered in the names of the parties as follows:-

(a) Gaturi/Kihumbu/ T. [particulars withheld] - defendant

(b) Ngandori/Kirigi/ [particulars withheld] - defendant

(c) Evurore/Ngithi/ [particulars withheld] - defendant

(d) Nakuru/Ngongogeri/ [particulars withheld] - defendant

(e) Nakuru Municipality Block [particulars withheld] - defendant

(f) Mbeti/Gachoka/ [particulars withheld] - defendant

(g) Gaturi/Githimu/ [particulars withheld] - defendant& plaintiff

(h) Ngandori/Kirigi/ [particulars withheld] - defendant & plaintiff

(i) [Particulars withheld] A - defendant

(j) [Particulars withheld]A - defendant

(k) [Particulars withheld] G - defendant

(l) PICKUP PEUGEOT - defendant

(m) 6 grade cows

3. The plaintiff told the court that she made both direct and indirect contribution in the purchase of the listed properties through her salary, savings and loan facilities from Barclays Bank of Kenya Sacco. She lists 15 loan facilities all totaling to Kshs.1,269,277. 80 borrowed between 1980 and 1997 for purchase of properties indicated as follows:-

1) Gaturi/Kihumbu/T. [particulars withheld]

2) Ngandori/Kirigi/ [particulars withheld]

3) Evurore/Nguthi/568 [particulars withheld]

4) Gaturi/Githimu/ [particulars withheld] (for construction)

5) Ngandori/Kirigi/ [particulars withheld]

6) Kasarani/Clayworks plot

7) Mbeti/Gachuriri/ [particulars withheld]

8) NIC Shares

4. The plaintiff explained that some of the loans were taken for purchase of land while others were consumer loans advanced by the employer for purchase of household goods including furniture. Since the parties did not require to purchase furniture every other time, the funds were converted to purchase of various properties, construction and setting up family businesses. It was the plaintiff’s evidence that she funded the construction of the matrimonial home, a four bedroomed mansion on Gaturi/Githimu/ [particulars withheld].

5. The plaintiff retired from the bank in 1998 to continue developing the home carry out in farming activities namely poultry and dairy farming. The defendant took early retirement and joined her at home. In 2013 he moved out of the matrimonial home and has since then sold some family properties including a hotel, vehicles and the 6 grade cows without the plaintiff’s consent. He failed to account for the proceeds of the sale.

6. The plaintiff attached to her affidavit the certificates of official searches for the listed properties. She states that the original titles of the properties were taken by the defendant. The plaintiff further testified that she did everything she could to support the defendant in acquiring the properties registered in his name. She contributed towards the welfare of the defendant and their children by providing food, clothing and meeting other household expenses. She was not left out in paying school fees for the children.

7. The defendant testified that it is not true that the parties bought the properties jointly and that he held them in trust for the family. According to him, the properties were registered in his name as the sole owner. He said that the plaintiff did not contribute towards the properties and further that he is not in possession of the listed vehicles as alleged. The properties were solely bought by himself from his salary, loans and savings. It is only L.R. Ngandori/Kirigi/ [particulars withheld] that was bought jointly by the parties. It is also denied that the plaintiff constructed the family home on Gaturi/Githimu/ [particulars withheld]. The home was built by him over a period of three years and costed him over Kshs.1,000,000/=.

8. The defendant admitted selling some of the properties to pay for his medical treatment for paralysis sustained as a result of shooting by thugs in 2006. He said that most of the title documents including his personal document were left in the matrimonial home with the plaintiff.

9. The issues for determination in this case are as follows:-

(a) Whether the properties listed in the originating summons are matrimonial properties.

(b) The identification of the share of each party depending on his/her contribution.

(c) Who will bear the cost of the suit.

10. The plaintiff raised the issue of whether or not the defendant is in possession of the title deeds for the matrimonial properties. It was her evidence that the defendant took them with him when he moved from the home in 2003. The defendant said that most of the title deeds and his personal documents were left at the matrimonial home. This was suggestive that the defendant is holding some if not all of the title deeds for the listed properties.

11. I did not find the issue of who holds the title deeds as important for the court to make a finding. This is because there exists other legal ways of carrying out the registration of the assets in the names of the parties after the division of the properties.

12. The law applicable in division of matrimonial property after dissolution of marriage is the Matrimonial Properties Act. Section 14 of the Act defines matrimonial properties as follows:-

Where matrimonial property is acquired during marriage –

(a) In the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse; and

(b) In the names of the spouses jointly, there shall be a rebuttable presumption that the beneficial interest in the matrimonial property are equal.

13. The foregoing provisions do not support the defendants claim that the properties registered solely in his name solely belong to him. There is a rebuttable presumption that the defendant holds the property in trust for the plaintiff. For the two properties registered in the joint names of the parties L. R. Gaturi/Githimu/ [particulars withheld] and L. R. Ngandori/Kirigi/ [particulars withheld], the rebuttable presumption that the beneficial interest of the parties in the properties are equal is applicable.

14. The plaintiff told the court that the defendant owned a hotel called Sunset which he sold. Neither the particulars of the land on which the hotel was situated nor the land reference number were given by the plaintiff. The defendant neither admitted nor denied the existence of the property. The court therefore finds that there was no proof of the existence of the property.

15. I find that the plaintiff has established that the listed properties are matrimonial properties as described under Section 14 of the Act. The court now proceeds to determine the contribution of each party in sharing out of the properties.

16. Section 7 of the Matrimonial Property Act provides:-Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.

17. It was held in the case ofFS VS EZ [2016] eKLRthat:-

Ownership of matrimonial property subject to Section 6(3), ownership of matrimonial property vests in the souses according to the contribution of either spouse towards its acquisition, and shall be divided between the souses if they divorce or their marriage is otherwise dissolved.

18. The contribution of parties is defined as both monetary and non-monetary under Section 2 of the Act. Monetary contribution refers to where a party has contributed funds in the purchase or construction of a property. Non-monetary is defined as follows and it 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

19. It was the evidence of the plaintiff that she contributed in both monetary and non-monetary form to the properties the defendant solely acquired. Being the wife of the defendant and mother of their children for a period of over 24 years, she took care of the children, did domestic work and managed the matrimonial home. She also looked after the family businesses and properties as well attending to their farms.

20. It is not disputed that the plaintiff took loans to purchase some of the properties which was supported by documentary evidence. The plaintiff said that she contributed to the construction of rental house on L.R. No. Nakuru Municipality/Block [particulars withheld] which was later sold by the defendant without her consent. The contribution by the defendant is not in question in that he worked with Barclays Bank as a manager. Part of his earnings and savings were used for family investments as well as loan facilities advanced to him by his employer.

21. It is my considered opinion that the plaintiff and the defendant contributed to the acquisition of the matrimonial properties as well as to their various developments almost equally. I come to the conclusion that the parties are entitled to equal shares of the matrimonial properties.

22. It is not in dispute that two properties namely L. R. Nakuru Municipality/block/ [particulars withheld] and Mbeti/Gachoka/ [particulars withheld] were matrimonial properties which the defendant sold without the consent of the plaintiff. The defendant said that he used the proceeds to pay for his medical treatment. This is not a justification for his action since he held the properties in trust for the plaintiff as stipulated under Section 14 of the Act. It is only fair and just that in division of the listed properties, the two form part of the defendant’s share.

23. The plaintiff only produced ownership documents for the one vehicle registration No. [particulars withheld] A. From the registration numbers, it appears that, if at all the said vehicles exist, the same are very old and are of negligible value. The plaintiff did not produce valuation reports for the vehicles to give the court a clue on the value.

24. The defendant denied that he is in possession of any of the vehicles. From her evidence, the plaintiff did not prove the existence of the said vehicles. It is doubtful that the same are still in existence given their age. The defendant also denied having taken the six grade cows from the matrimonial home and no evidence of their existence was tendered. I find that the plaintiff has failed to prove that the alleged vehicles and the cows do exist as part of the matrimonial properties.

25. The defendant said he has no objection to the plaintiff being given ¾ of the land where the matrimonial home sits. The parties have several properties for division herein and I do not find it appropriate to tie the parties together on the property where the plaintiff resides. In my considered opinion, the logistics involved in the process of sub-division and processing of title deeds for the resultant parcels is not necessary in the circumstances.

26. The parties did not give the valuation reports for any of the immovable properties posing a challenge in the distribution. However, the sizes and locations of the land in the official search will be considered in the distribution.

27. I wish to point out that the task of distributing matrimonial property is based on the discretion of the court and may not achieve equality between the parties.

28. Article 45 of the Constitution provides that parties to a marriage have equal right s at the time of marriage and at the dissolution. The word “equal” in this context does not envisage a situation where the party gets equal shares at the ratio of 50:50 on dissolution. However, where the court finds that the parties are entitled to equal shares, it ought to try as much as possible to put them almost on the same position in the division of the properties.

29. With the foregoing considerations, I proceed to divide the properties between the parties as follows:-

Plaintiff

(i) Gaturi/Githimu/ [particulars withheld](0. 22 ha.)

(ii) Ngandori/Kirigi/ [particulars withheld](1. 21 ha.)

(iii) Gaturi/Kihumbu/ T.[ particulars withheld](0. 05 ha.)

(iv) Evurore/Nguthi/ [particulars withheld](3. 00 ha.)

Defendant

(i) Nakuru Municipality [particulars withheld]

(ii) Nakuru/Ngongogeri/ [particulars withheld](2. 05 ha.)

(iii) Mbeti/Gachoka/ [particulars withheld](5. 63 ha.)

(iv) Ngandori/Kirigi/ [particulars withheld] (1. 00 ha.)

30. Each of the parties will meet their own cost of the suit.

31. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 14TH DAY OF NOVEMBER, 2017.

F. MUCHEMI

JUDGE

In the presence of:-

Ms. Muriuki for Kariuki for plaintiff

Ms. Mbwiria for Kathungu for defendant