[2023] KEHC 19174 (KLR)

RHL v HKK (Originating Summons 12 of 2021) [2023] KEHC 19174 (KLR) (26 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19174 (KLR)

Republic of Kenya

In the High Court at Mombasa

Originating Summons 12 of 2021

G Mutai, J

June 26, 2023

Between

RHL

Applicant

and

HKK

Respondent

Judgment

1. The Applicant is a Norwegian citizen by birth. She got married to the Respondent at the Registrar’s office Mombasa on 5th August 2011. At the time of the marriage she was a divorcee aged 47 years old. The Respondent was 26 years old. They were respectively described in the Marriage Certificate as “Manager” and “Acrobat”.

2. Their marriage was not blessed with issues. It appears to have been a rather tumultuous union. Part of the reason why it could have been so is the way the relationship was initially conceived. It appears to have been entered into on the mistaken belief on the part of the Applicant, created by the Respondent, that she needed to get married to a Kenyan man so that she could own property within Kenya. Their union was dissolved on 21st March 2019 vide a decree nisi of divorce issued on the said date.

3. On 2nd November, 2021 the Applicant filed the instant Originating Summons. She seeks the following orders: -1. That the honourable court make a declaration that the Applicant has an absolute beneficial interest in the property known as Plot Number 4136/III/MN situate in North of Mtwapa Creek by virtue of having single handedly contributed towards its acquisition;2. That the honourable court make an order that the property known as Plot Number 4136/III/MN situate in North of Mtwapa Creek be transferred to the Applicant absolutely;3. That the Deputy Registrar, High Court of Kenya be authorized to sigh transfer document in place of the Respondent to effect the transfer of all that property known as Plot No 4136/III/MN situate in North of Mtwapa Creek in favour of the Applicant;4. That the honourable court be pleased to issue any other relief as may be just in the circumstances; and5. That the costs of the suit be provided for.

4. The Applicant provided very detailed grounds upon which her Originating Summons is based. In brief she averred that the she had been married to the Respondent and that their union had since been dissolved. The parties are registered as joint properties of Plot No 4136/III/MN situate in North of Mtwapa Creek. It was her statement that she singlehandedly acquired the said property using her own resources as well as a bank loan, all amounting to Kes.28,000,000. 00. The Applicant averred that she desired to settle in Kenya as she is a mother of two Kenyan boys born by her in the course of a previous relationship. She stated that the Respondent misled her that it would be necessary to get married to him and to register the property jointly as she is a foreigner. It is for that reason that the suit property is jointly registered.

5. The Applicant stated she obtained a loan of Kes.26,000,000. 00 which she sent to the Respondent, through his agent Astony Kadenge Chengo, after she was told that the property was being sold for that amount. She subsequently discovered that the true value of the property was Kes.13,000,000. 00 and that she had been defrauded Kes.13,000,000. 00. She singlehandedly developed the suit property by constructing villas which she fully fitted and furnished and leased them out so that she could earn an income with which she would pay the loan she had taken. She further averred that she was in possession of the original title deed of the suit property which she obtained upon making full payment.

6. In 2018, on the guise that the original title was lost, the Respondent knowingly and fraudulently misled the Land Registrar that he had lost the original certificate of title and was subsequently issued with a provisional title without the knowledge or the consent of the Applicant. Thereafter he chased away the Applicant’s employees and has since then been in forceful and exclusive possession of the suit premises. The said premises have now been run down. The Respondent sold furniture and electronics, bought and installed by the Applicant. The Applicant was apprehensive that the Respondent might sell the suit premises. For that reason, the Applicant sought conservatory orders to prevent the Respondent from disposing off the suit premises.

7. The Applicant averred that she was still in the process of paying off the bank loan despite not being in possession of the suit premises. This Court was urged in the interest of justice and fairness to issue the reliefs sought.

8. In support of her Originating Summons the Applicant swore a Supporting Affidavit on 29th September 2021 vide which she deposed to the above referred contentions. Her Supporting Affidavit had the following annexures: -1. Copy of the marriage certificate;2. Sale agreement in respect of Plot No. 4136/III/MN (Original No.3213/2) between the Applicant and the Respondent on the one hand, and a Mr. Douglas Mwangi Muteru;3. Certificate of Title No. CR 38754 in respect of Subdivision No. 4136(originating No. 3213/2) Section III Mainland North. Entry No. 5 of the said title shows that it was transferred to the parties herein on 27th June 2011 and that the consideration of the said transfer was Kes.13,000,000. 00;4. Decree Nisi of divorce dated 21st March 2019;5. Bank transfer slips dated 31st December 2011, 24th May 2011 and 7th June 2011. The latter two show that Kes.13,000,000. 00 was transferred on each occasion to one Astony (hengo Kadenge, through his bank account number 016 525 5178 with Barclays Bank;6. Transfer Deed executed by the seller and the parties herein. The consideration is given as Kes.13,000,000. 00;7. Photographs of the suit premises;8. Certificate of postal search dated 13th August, 2021;9. Letter to the Land Registrar Mombasa dated 19th August, 2021;10. Photographs of the suit property; and11. Photograph of some disputed properties being carted away by people the Applicant believes are the employees of the Respondent.

Proceedings Before the Honourable Court 9. The Applicant filed a Notice of Motion dated 2nd November, 2021 vide which she sought, inter alia, a temporary injunction against the Respondent, his servants and or agents from leasing out the suit premises pending the hearing and determination of the application and the suit. The said application was not heard interpartes and was withdrawn on 15th February 2023. On the said date I ordered that status quo be maintained until the Originating Summons was heard and determined.

10. The matter was fixed for hearing on 20th April 2023. The Court, being satisfied that the Respondent and his advocate were served with a hearing notice, upon perusing the Affidavit of Service of Nelson Mwachambi Nyiro sworn on 15th March 2023 heard the matter. Attached to the affidavit of service are copies of the hearing notices signed by the Respondent and endorsed with his advocate’s office receiving stamp. Both show that the service was effected on 10th March 2023. Notwithstanding the service, as aforesaid, the Respondent and his advocate were absent when the matters was heard.

The Evidence of the Applicant 11. The Applicant referred to her Affidavit sworn on 21st September 2021. Se produced the documents in her bundle. She testified that she took loans from banks in Norway to purchase the suit property. She was still repaying the said loans. She averred that she had incurred enormous expenses trying to recover the property. The Applicant stated that her motivation for buying the property was the fact that she is a mother of 2 Kenya boys that she got with her previous Kenyan husband with whom they are presently divorced. She desired to build for them a home. She met the Respondent in a hotel she was staying. The Respondent introduced her to his uncle Astony Chengo Kadenge who helped her find the property. The property the latter procured was said to be on sale for Kes.26,000,000. 00. Being desirous of purchasing the same she mortgaged her house in Norway and transferred the funds to the said Astony Chengo for onward transmission to the seller. Not being familiar with Kenyan law she was told that she needed to get married to the Respondent and have the property jointly registered with him. Upon purchasing the property she build villas which she used partly as a retirement home and also for rent so that he could get money to pay the loans she took. She was able to rent out the villas from 2012 to 2019. In 2019 the Respondent and Mr. Astony Chengo Kadenge chased away her employees and ruined the premises. Presently the premises are in a dilapidated state. The Applicant and the Respondent are presently engaged in a civil suit. It was her testimony that she presently pays Kes.200,000. 00 per month to her banks as loans instalments.

12. The Applicant testified that the Respondent fraudulently procured a provisional title when he knew that the original was with her. She was apprehensive that he intended to sell the same so as to defraud her.

13. She further testified that she filed the case so that she could get the title in her name. The Respondent did not contribute anything towards the purchase of the suit property. In any case, she testified, he defrauded her by exaggerating the true cost of the property to twice its value by prevailing on her to pay Kes.26,000,000. 00 when the real value of the property was Kes.13,000,000. 00. She stated that she wants her money back. In closing she was livid that her investment had ruined her financially.

14. I have already indicated that the Respondent did not appear in Court. His advocate was also absent. That being the case the Respondent’s case was closed. The Court ordered the Applicant to file and serve Written Submissions and to appear before me on 10th May 2023 so that a judgment date could be fixed.

15. When the matter was mentioned before me on 10th May 2023 the Applicant had filed her Written Submissions. Mr. John Bwire for the Respondent appeared in Court and sought more time to file their response. The Court was unconvinced by the said application as previous opportunities given to them to file their documents had not been utilized. It appeared to this Court that the said application was being made to waste court’s time. Consequently, I fixed this matter for judgment on 23rd June 2023.

Submissions of the Applicant 16. The Applicant identified 3 issues as coming for determination by this Court. These are:-a.Whether the Applicant singlehandedly acquired all that property described as Plot No. 4136/III/MN situate North of Mtwapa Creek;b.Whether the Respondent contributed towards the acquisition and or development of the suit property; andc.Whether the reliefs sought should be granted.

17. In respect of the first issue it was submitted that it was the Applicant who singlehandedly purchased the same. The Court was referred to the loan statement in page 60 of the bundle. The money was sent in 2 batches, each of Kes.13,000,000. 00 to the associate of the Respondent one Astony Chengo Kadenge on the instructions of the Respondent. It was further submitted that the Applicant developed the suit property by building cottages, a swimming pool and that she fully fitted and furnished the villas. The Court was referred to the documents in pages 61 and 62, and 66 to 72 of the Bundle of Documents. The Applicant averred that having purchased, developed and furnished the suit property the same should be vested in her absolutely as she had met the test under section 7 of the Matrimonial Properties Act, 2014.

18. On whether the Respondent contributed anything towards the purchase of the property the Applicant submitted that he hadn’t. the Court was urged to find that since the Applicant’s evidence was unchallenged, the Court had jurisdiction under the Matrimonial Property Act and the Rules made thereunder to grant the reliefs sought. In particular, I was referred to Rule 30(1) which provides that: -“powers of the CourtThe Court may make any one or more of the following orders: -a.In the case of matrimonial property owned by the spouse jointly an order vesting the matrimonial property in any one of them;b.An order for the payment of a sum of money by one spouse to the other;c.An order for the transfer of land; andd.Such other orders or directions as the Court deems just.”

19. The Applicant thus prayed that this honourable Court does issue orders as prayed in the originating summons dated 2nd November 2021 and to condemn the Respondent to pay costs.

The Applicable Law 20. Kenya has a very progressive Constitution. At the heart of our constitutional order is the equality of the sexes, and also the equality of the spouses when they get married. To illustrate this point, it is important that I set out the relevant provisions of the Constitution of Kenya, 2010 and the law as these shall underpin the decision that I shall make.

21. Article 45(3) of the Constitution of Kenya 2010 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”.

22. Section 6 and 7 of the Matrimonial Property Act, Act No 49 of 2013 provide that: -“6. (1)For the purposes of this Act, matrimonial property means—(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.(2)Despite subsection (1), trust property, including property held in trust under customary law, does not form part of matrimonial property.(3)Despite subsection (1), the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights.(4)A party to an agreement made under subsection (3) may apply to the Court to set aside the agreement and the Court may set aside the agreement if it determines that the agreement was influenced by fraud, coercion or is manifestly unjust.7. 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.”

23. Section 14 of the said Act provides that: -“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 rebuttable presumption that their beneficial interests in the matrimonial property are equal.”

Issues for Determination 24. I have looked at the matter and considered the testimony of the Applicant as well as the submissions filed herein. Although the Respondent did not appear for the hearing I must nevertheless consider whether the Applicant proved her case. In my view it is not enough that the case was not contested, the facts and the law must support her case. Thus I must make a reasoned decision. It would thus appear to me that I must determine: -1. Whether the property the subject matter of these proceedings is matrimonial, and if so, what the respective contributions of the parties were;2. What orders should issue based on my finding above; and3. Who should bear the costs

Analysis of the Law 25. I will look at each of the issues that I have identified above in turns as I make my determination.

Is the Suit Property a Matrimonial Property? 26. The evidence adduced shows that the Applicant purchased the said property in 2011. The transfer in favour of the Applicant and the Respondent was registered on 11th July 2022 less than a month before they got married. The Applicant developed the property intending that a part of it would be a home for her and her family. It would appear to me that the villas, the swimming pool and other amenities were build during the marriage. The property was also furnished during the subsistence of the marriage.

27. In TMW versus FMC [2018] eKLR the Court said as follows: -“Firstly, I shall determine whether the suit property falls in the category of matrimonial property. Turning the provisions of the Matrimonial Property Act, Section 6 of the Matrimonial Property Act, 2013 defines a matrimonial property to include the matrimonial home or homes, any household goods in the home or homes or any other property jointly owned and acquired during the subsistence of the marriage. Basically 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. In the instant case, the marriage between parties herein commenced 1993 and was officiated through Kikuyu Customary Law in 2001. The property in question was acquired in 2010 and the same was acquired during the subsistence of the marriage between the parties herein. There is also evidence that the suit property was acquired for purposes of building a family home. As a result, there is no doubt whatsoever that the suit property including the Juja farm forms part of matrimonial property as far as the parties herein are concerned.”

28. The property, having been intended the matrimonial home of the Applicant and the Respondent, it is my finding that it is indeed so.

What Were the Respective Contributions of the Parties? 29. I have looked at the sale agreement. The said agreement was executed on 27th May, 2011 (page 54 of the bundle). Three days before the said date the Applicant transferred Kes.13,000,000. 00 to Astony Chengo Kadenge. The sale agreement called for payment of 50% deposit on signing and the balance within 7 days thereafter. On 7th June, 2011 the Applicant transferred Kes.13,000,000. 00 to Astony Chengo Kadenge. The evidence of the Applicant is uncontroverted. I thus find that the two payments she made to Astony Chengo Kadenge were in settlement of the purchase price and that Mr. Kadenge was her agent in the transaction. In any case the fact that the transfer of title was registered is sufficient evidence in my view that the vendor was paid the purchase price in full.

30. It is clear from the evidence that the Applicant paid the purchase price in full. I have not seen evidence of any contribution made by the Respondent towards the purchase price. There is also no evidence that he contributed towards the construction of the villas and the related amenities or that he paid for the furnishing that was done. As we have already seen despite being served he did not file pleadings to oppose the Originating Summons.

31. The Applicant gave elaborate, cogent testimony. She showed the Court photographs of the development she undertook in the suit premises. I have also seen her loan/bank statement. She is still servicing the loans she took despite the fact that she has not been in occupation n of the property since 2019.

32. From the evidence in record it does appear that the Applicant was defrauded. Whereas the sale agreement states that the consideration was Kes.26,000,000. 00 the transfer gives the figure as being Kes.13,000,000. 00 (page 63 and 64). The latter amount is also given in the certificate of Title at paragraph 5 (page 57 and 58 of the Bundles). The Applicant paid twice what she ought to have paid for the property. The reasonable inference to be drawn in the circumstances of this matter is that the Respondent was a beneficiary of the said fraud. In the circumstances I find and hold that the Applicant made 100% contribution towards the purchase of the property and that the Respondent did not contribute anything towards its purchase.

33. Although the applicable law defines contribution as being both monetary and non-monetary and to include domestic work and management of the matrimonial home, child care, companionship management of the family business or property and or farm work, I do not think that the Respondent would qualify. As I have already indicated he appears to have defrauded the Applicant by misrepresenting the purchase price of the property. The parties lived apart, she in Norway where she worked, and he in Kenya. They had no children together. The Applicant had staff who maintained the business in Kenya and as a matter of fact employed the Respondent’s relatives. When the parties disagreed and their relationship irretrievably broke down the Respondent run down the property and finally carried away and disposed off some of the assets. It is my view that whatever little non-monetary contribution the Respondent would claim to have made by way of companionship was more than offset by the fraud he committed, and the wanton waste, destruction and pilferage he meted out on the suit premises. In the circumstances I find that he made no monetary contribution.

34. My finding above is based on the cases I will set out below.

35. The Supreme Court in Joseph Ombogi Ongentoto versus Martha Bosibori Ogentoto [2023]eKLR stated, in agreeing with what Tuiyott J (as he then was) said in UMM versus IMM [2014]eKLR stated as follows:-“we find the above opinion and findings persuasive and it is our finding that the stated equity under Article 45(3) means that the Courts are to ensure that at the dissolution of a marriage, each party to a marriage gets a fair share of the matrimonial property based on their contribution. This is best done by considering the respective contribution of each party to ensure no party is unfairly denied what they deserve as well as ensuring that no party is unfairly given more than what he or she contributed”.

36. I am bound by the above decision. Section 2 of the Matrimonial Property Act defines contribution as: -“… 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; ande.farm work”

37. “Family business” is defined as “any business whicha.Is run for the benefit of the family by both spouses or either spouses; andb.Generates income or other resources wholly or part of which are for the benefit of the family”

38. The Court in AWM versus JGK [2021]eKLR held that“in respect of non-monetary contribution, I take the view that the Applicant made her contribution in the manner defined under section 2 or the Matrimonial Property Act. I have considered the argument by the Respondent that the Applicant had domestic workers and did not do household chores. However, a mother’s contribution to a home cannot be quantified in monetary terms. Even where there is domestic help in most cases it is the duty of the mother to ensure that the home runs smoothly and that all the needs of the children and the husband are catered for. Even where she is gainfully employed as claimed in this matter, her duties once she gets home do not end until all is well at home. This is what the Applicant is claiming. She also provided companionship to the Respondent. The Respondent argues that companionship does not constitute a contribution towards matrimonial property. Section 2 of the Matrimonial Property Act defines the contribution to include companionship”.

39. I agree wholeheartedly with the holding above. Thus in this case not only must I consider what each contributed monetarily. I must also bear in mind non-monetary contribution. Having done so I have found that the Respondent must, in the circumstances of this case, be deemed to have made no contribution.

What Orders Should the Court Issue? 40. I listed down the prayers the Applicant seeks in paragraph 3 above. Parties are bound by their pleadings. I am thus able to issue orders I find as being merited if they have been sought in the pleadings. I have found the Applicant to be entitled to 100% share of the matrimonial property. The prayer for refund of Kes.13,000,000/- wasn’t sought in the pleadings. I am therefore unable to grant it.

Who Should Bear the Costs of the Originating Summons? 41. It is title law that costs follow the event. The present jurisdiction in Kenya is that costs are not ordinarily awarded in cases before the Family Court. I verily believe that this practice is subject to exceptions. In this matter the conduct of the Respondent has been odious. He expelled the Applicant from a property they were both registered as joint owners. He wasted the property and pilfered its assets. It is therefore my view that he should be condemned to pay costs.

Disposition 42. The Applicant has succeeded in her Originating Summons. I find that she entitled to 100% share of the matrimonial property. I therefore order as follows: -1. I declare that the Applicant has an absolute beneficial interest in the property known as Subdivision No. 4136 (Original No. 3213/2) Section III Mainland North by virtue of having singlehandedly contributed towards its purchase;2. I order that Subdivision No. 4136 (Original No. 3213/2) Section III Mainland North be transferred to the Applicant absolutely;3. I direct the Deputy Registrar of this honourable court to sign the transfer documents in place of the Respondent to effect the transfer of all that property known as Subdivision No. 4136 (Originating No. 3213/2) section III Mainland North in favour of the Applicant; and4. I award the Applicant costs of the Originating Summons.

Orders accordingly.

DELIVERED, DATED, AND SIGNED THIS 26TH DAY OF JUNE 2023 AT MOMBASA VIA MICROSOFT TEAMS.GREGORY MUTAIJUDGEIn the presence of:-Mr. Wasilwa for the ApplicantNo appearance for the Respondent