[2022] KEHC 13776 (KLR)

RMM v HKF (Civil Suit 1 of 2020) [2022] KEHC 13776 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13776 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Suit 1 of 2020

EM Muriithi, J

October 6, 2022

Between

RMM

Applicant

and

HKF

Respondent

Ruling

1. The applicant’s Originating Summons dated 30/1/2020 was met with a notice of preliminary objection by the Respondent dated August 10, 2020, on the grounds that: the court has no jurisdiction to determine the suit; the suit properties, namely Nyaki/Thuura/2841 and Nyaki/Giaki/844, are not matrimonial properties as defined under the law, and are also not owned by the respondent; and the suit has no foundation, and it is fatally defective, bad in law and does not lie.

2. The Respondent’s submissions filed on February 11, 2022, urge that the suit properties do not constitute matrimonial properties as defined under section 6(1) of the Matrimonial Property Act, 2013, because they are registered in the name of a limited liability company. He urges that since this court lacks jurisdiction to entertain the matter, it ought to uphold the preliminary objection and dismiss the suit. He relies on AKK v PKW (2018) eKLR, Nancy Wambui Ndichu v Steve Ndichu Mwaura Nairobi HCC No51 of 2012(OS), Minnie Waithera Mbue v John Peter Mbue Nairobi High Court Civil Suit No43 of 2009 (OS) and the Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd (1989) eKLR to fortify his submissions.

3. The applicant, vide her submissions filed on 15/6/2022, heavily relies on the provisions of sections 12 and 17 of the Matrimonial Property Act, 2013, the Court of Appeal case of SNK v MSK & 5 Others(2015) eKLR. She submits that she seeks a declaration that the suit properties are matrimonial properties, but not division thereof. She urges the court not to dwell on the issue of the separate entity of the company, but on declaration of ownership of the shares and in so doing, to find that the shares and/or properties as a unit of ownership fall within the definition of matrimonial property. She submits that she purchased the suit properties herein, and beseeches the court to dismiss the preliminary objection. She concludes that the court is clothed with unfettered jurisdiction to hear and determine this case and grant the orders sought.

Analysis and determination 4. From the material placed before this court, it is clear that the parties herein solemnized their marriage on February 4, 2011, but the said marriage was dissolved by the Court on February 23, 2019, after it had irretrievably broken down.

5. In order to determine whether the Preliminary Objection has been properly raised, it is imperative to look at the orders sought by the applicant in her Originating Summons. The live prayer therein is:1. That this Honorable court be pleased to order and declare that Land Parcel/ Title Numbers Nyaki/ Thuura/2841 and Nyaki/Giaki/844, both registered in the name of the entity/company known as Konkod Limited, are matrimonial properties of the Applicant and the Respondent jointly.

6. What the applicant seeks is not division of the suit properties, but a declaration that they are matrimonial properties.

7. Therefore, the provisions of section 7 of the Matrimonial Property Act does allow division of property in the circumstances of this case. Section 7 of the Matrimonial Property Act, 2013provides as follows:“7. Ownership of matrimonial propertySubject 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.”Division of property arises when the spouses “divorce or their marriage is otherwise dissolved.” The parties in this case are divorced.

8. The issue of the ownership of the suit properties is not in dispute, as it can be seen that they are both registered in the name of Konkod Limited, a limited liability Company.

9. This court finds that it has the requisite jurisdiction to declare the rights of a spouse in any property, whether matrimonial or not, in line with the provisions of section 17 of the Matrimonial Property Act, which provides that:“17. (1)A person may apply to a court for declaration of rights to any property that is contested between that person and a spouse.

(2)An application under subsection (1) –(a)shall be made in accordance with such procedure as may be prescribed;(b)may be made notwithstanding that a petition has not been filed under any law relating to matrimonial causes.”

10. This Court has noted that the decision of the High Court in AKK v PKW (2018) eKLR (MW Muigai J) relied on by the respondent, was reversed on appeal in AKK v PKW [2020] eKLR (Warsame, Kiage & Gatembu, JJ A) where the Court of Appeal held:“It is our considered view that the High Court has jurisdiction to declare the rights of parties in relation to any matrimonial property which is contested…..We find that the trial court was clothed with the requisite jurisdiction to entertain those aspects of the appellant’s prayers that did not involve the division of matrimonial property and the superior court was in error to limit its jurisdiction on the basis of the provisions of Section 7 of the Act.”

11. In AKK v PKW[2020] eKLR, supra, similar arguments on the property being owned by a limited liability company had been made as recorded in the Judgment paragraphs 26-28, as follows:“26. Regarding the issue of the shares of the companies, the respondent contended that a company is a separate legal entity from its shareholders and directors and hence the court did not have jurisdiction to make a finding with regard to properties and shares held in Upperhill Springs Limited.

27. The respondent also reiterated that the appellant did not contribute towards the acquisition of the properties held in the companies, neither did she make any monetary or non-monetary contributions towards these companies.

28. The respondent refuted the appellant’s claims that the shares and properties were acquired during the marriage through joint efforts and registered in the respondent’s names and maintained that claims for shares held by the spouse in a company should be made to the commercial court as they cannot be construed as matrimonial property.”

12. I respectfully consider that the Court of Appeal decision in PWK v JKG (2015) eKLR (Waki, Nambuye & Kiage, JJA) put paid the question as to the jurisdiction of the matrimonial court to determine property disputes relating to property of the company in matrimonial setting as follows:“We respectifully agree, that where the property of the company had been mixed with the matrimonial property, Section 17 allowed the court to deal with the parties’ respective interests in the company as injustice might otherwise result, which, to our way of thinking, is a repudiation, in appropriate cases, of the sometimes unhelpful distinction between the parties as spouses as opposed to shareholders for purposes of Section 17 proceedings.The Court in Muthembwa v Muthembwa found that Section 17 of the MWPA did, in fact, allow a court to deal with the parties’ respective interests in a company in which they are shareholders.”

Orders 13. Accordingly, for the reasons set out above, the Preliminary Objection dated August 10, 2020 is dismissed.

14. Costs in the Cause.

DATED AND DELIVERED THIS 6THDAY OF OCTOBER, 2022. EDWARD M. MURIITHIJUDGEAPPEARANCES:M/S Meenye & Kirima Advocates for the Applicant.M/S Sam Ngeru & Co. Advocates for the Respondent.