[2022] KEHC 1149 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

FAMILY DIVISION

CIVIL SUIT NO. 64 OF 2018

RNM....................................................................................................APPLICANT

VERSUS

FM...................................................................................................RESPONDENT

JUDGMENT

1. The Applicant herein RNM filed the Originating Summons dated 22nd October 2018 seeking various orders in respect of matrimonial property.

2. The Respondent FM filed a Replying Affidavit in opposition to the summons. The matter was referred to mediation and vide the Mediation Settlement Agreement filed in court on 25th September 2019 the parties managed to settle the dispute regarding several of the properties in issue. However, they were unable to reach agreement regarding the distribution of the property known as LR. No. xxxx situated in the Karen area of Nairobi County hereafter the ‘suit property’).

3. By Clause 7 of the Mediation Settlement the parties agreed that-

“This Honourable court to proceed to hear and determine the originating summons filed herein only in respect of the property known as Land Reference No. xxxx contained in Grant I.R NO. xxxx situated in Nairobi Karen and measuring approximately 0. 3394 hectares.”

4. The Applicant has now approached this court for a determination of her share in the said suit property which she avers was the Matrimonial Home.

5. In the originating summons dated 22nd October 2018 the Applicant sought the following prayers in respect of LR No. xxxx-

“a) THAT the trust be terminated and the property be apportioned and distributed equally between the Applicant and the Respondent.

b) THAT a declaration do issue that the immovable property known as L.R. No. xxxx contained in Grant I.R No. xxxx and the developments thereon be valued, sold and its proceeds be shared equally between the Applicant and the Respondent.

c) THAT in the alternative to the above, the property LR. No. xxxx contained in Grant I.R No. xxxx be valued and the Applicant and the Respondent be at liberty to buy out the share entitlement of the other should they deem fit to do so.

d) THAT the Deputy Registrar to execute any documents that distribution of the immovable and moveable properties.

e) THAT costs of the borne by the Respondent.”

6. As stated earlier the Respondent opposed the summon through his Replying Affidavit dated 6th November 2018. In regard to the suit property the Respondent in paragraphs 17and18 of the said Replying Affidavit averred as follows:-

“1. THAT the house build on L.R. No. xxxx measuring approximately 0. 83868 acres is my only home acquired through a mortgage paid solely by myself for a period of over 20 years without any contribution whatsoever from the Applicant and is not up for sale. It is not true that I and the Applicant have occupied the house for 30 years as we moved in 1995. I sweated single handedly for all those over 20 years in employment to secure my retirement home. I paid the whole of the purchase price for this a property through monthly deductions from my payslips and on retirement, I continued paying the home loan from my savings until February 2017, Annexed hereto and marked as “FM5” is a loan statement form Madison Insurance Company Kenya Limited (my former employer since 1989) confirming that I was the loanee, the amount, the repayment period, monthly payment etc.

2. THAT further, the Applicant is well aware that the said parcel cannot be subdivided in any case as it is against the by-laws of the Nairobi City County for Karen properties whose minimal size per parcel must not be less than 0. 5 acres. It is dishonest on the part of the applicant to allege on pargraph 12 of her Affidavit that L.R. No. xxxx is at advanced state of being sub-divided with intention of disposal to 3rd parties without any proof whatsoever. The attached letter dated way back on 14th July, 2011 appearing on page 32 of the annextures is only meant to mislead the court to issue the order it did. I urge the Honorable court to note that there is no Deed plans issued by the Director of Survey and I do confirm to this Honourable court that there is no intended subdivision or sale. I am aware that court orders cannot be granted in vain”.

BACKGROUND

7. It is not in dispute that the Applicant and the Respondent were a couple who got married to each other on 19th November 1988 at St [particulars withheld] in Nairobi as is evidenced by the copy of marriage certificate serial Number xxxxx annexed to the Applicants list of Documents filed on 22nd October 2018.

8. The couple cohabited as man and wife for over twenty (20)odd years until the Applicant filed a Petition for Divorce being Divorce Cause No. 692 of 2016 at the Milimani Magistrates Court.

9. The Divorce Petition was heard and the marriage was dissolved vide the Decree Absolute dated 11th October 2018 (Annexture R-3 to the Applicants supporting Affidavit dated 22nd October 2018).

10. Simultaneously with the Petition for Divorce the Applicant filed this summons in the High court seeking distribution of matrimonial property. As stated earlier the parties reached a consent regarding distribution of the properties in issue but no agreement was reached in respect of L.R. No xxxx.

11. Following directions of this court the matter was canvassed by way of oral evidence. Both the Applicant and the Respondent testified on their own behalf.

THE EVIDENCE

12. The Applicant testified before the court on 9th August 2021. She relied upon her written statement dated 15th October 2020. The Applicant confirmed that she was once married to the Respondent and further confirmed that their marriage was dissolved in August 2018.

13. According to the Applicant the suit property was their matrimonial home for over twenty (20)years to which sentimental value is attached. The Applicant states that she was involved in the acquisition and development of the suit property through identification of said property, regular inspection, attendance at the site meetings approval of all the drawings as well as designs for construction of the residential house.

14. Though the suit property was registered in the sole name of the Respondent, the Applicants position is that she made non-monetary contribution to the home by providing encouragement and support to the Respondent taking up the responsibility of shopping, cooking, planning meals; supervising the home staff, setting up the gardens, lawn care, general maintenance of the home etc.

15. The Applicant asserts that the suit property was purchased for the common use of the Respondent and herself and that the fact that the same was registered in the name of the Respondent did not mean to confer upon him exclusive rights to the property.

16. The Applicant contends that in view of her monetary and non-monetary contribution over a period of thirty (30) years she is entitled to a 50%share in the suit property. She urges the court to apportion distribution equally between the parties.

17. The Respondent gave his evidence on 27th September 2021. He relied upon his written statement dated 28th January 2021. The Respondent states that it was he who identified the suit property through an advert placed in the newspapers in January 1990. The undeveloped plot was going at Khs 600,000/-. That he purchased the suit property with the intention of constructing thereon his retirement home.

18. The Respondent states that he secured a loan from his then employer Madison Insurance Company and on 31st January 1990 and that he paid Kshs 60,000/-representing the 10% deposit for the purchase of the plot.

19. The Respondent states that he paid a sum of Kshs 540,000/-representing the balance of the purchase price on 22nd January 1991. Thereafter he embarked on construction of the residential house on the suit land.

20. That in order to finance said construction the Respondent sought for and obtained loans totaling Kshs 7,746,754. 00, which loans he alone serviced by paying an amount of Kshs 51,125. 00 monthly. The Respondent claims that he alone sourced for and purchased the furnishings and household goods and that he singlehandedly maintained the house by re-roofing, painting etc.

21. That in the year 2014 the Respondent cleared the loan on the property which property was then discharged and the Title Deed was handed back to him. He asserts that he has paid a total sum of Kshs 14,350,967. 00 in the purchase and development of the suit property.

22. The Respondent denies that the Applicant is entitled to 50%share of the suit property or at all given that he single handedly identified, purchased and developed the same. He denies that the Applicant made any contribution monetary or non-monetary towards the acquisition of the suit property. The Respondent states that he is now a retiree and has no sustainable source of income. As such, it would be unfair to have the suit property sold and the proceeds distributed at 50% share as suggested by the Applicant.

23. Further the Respondent pleads that he is not in a position financially to buy out a 50% share of the property. He states that on the other hand the Applicant is financially stable as she is still working with the United Nations to date and will be entitled to a hefty pension upon her retirement.

24. The Respondent denies that he holds the suit property in trust for the Applicant. He stated that upon their divorce he ceded to the Applicant various properties in Naivasha and states that the Applicant also acquired several properties of her own during the course of the marriage.

25. Finally the Respondents urges the court to dismiss this Originating Summons with costs.

Analysis and Determination

26. I have carefully considered the summons filed by the Applicant, the Reply thereto, the evidence on record as well as the written submissions filed by both parties. The following are the issues which arise for determination:-

(1) Whether the property known as LR No. xxxx is matrimonial property.

(2)Whether the Applicant made any contribution towards the acquisition of LR No. xxxx.

(3)How should the property known as LR No. xxxx be divided.

(1)Matrimonial Property

27. It is not in dispute that the parties herein got married to each other in November 1988and divorced in the year 2018. It is also not in dispute that the suit property was acquired in the year 1991 during the subsistence of their marital union. Further it is not in dispute that the parties cohabited in the suit property as man and wife from 1995-2015 until the time of their separation – a period of twenty (20) years. The Applicant asserts that the suit property therefore constitutes matrimonial property whilst the Respondent vehemently denies that this is the case.

28. Section 6(1) of the Matrimonial Property Act, 2013 provides as follows:-

“6. (1) For the purpose of this Act, matrimonial property means-

(a) The matrimonial home or homes.

(b) Household goods and effects in the matrimonial home or homes.

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

29. It has not been disputed by the Respondent that after the acquisition of the suit land and the construction of a residential house thereon, the couple cohabited in said property as man and wife for a period of close to twenty (20) years. In his evidence the Respondent confirms that “we occupied the house in 1995. By then I was still married to the Applicant. We occupied the property as man and wife from 1995-2015…”.

Thus I find that the suit property was in fact the matrimonial home.

30. The Respondent points out the fact that the suit property is registered in his name as evidence of the fact that said property belongs to him alone and denies that he holds the same in trust for the Applicant.

31. Section 14 of the Matrimonial Property Act sets out two rebuttable presumptions in regard to property acquired during marriage as follows:-

“14. Where matrimonial property is acquired during the 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 their beneficial interests in the matrimonial property are equal.”

32. The Applicant claims that she made substantial non-monetary contribution towards the acquisition and development of the suit property. As such, she insists that the suit property constituted matrimonial property which the Respondent was holding in trust for her.

33. The Respondents position however is that he single handedly acquired the said property and that he alone developed it.

34. It is trite law that he who alleges must prove. The Evidence Act places the burden of proof of any fact on the person who wishes to rely on the same section 107 of the Evidence Act Cap 80, Law of Kenya Provides as follows:

“Burden of Proof

(1) Whoever desires any court to given judgment as to nay legal or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

35. In the case of NJOROGE VS NGARI [1985] KLR 480 the court stated that where a property is held in the name of one spouse, even if that property is registered in the name of one person but the other spouse made contributions towards its acquisition, then each spouse has a proprietary interest in said property. The Court in that case held thus-

“where a property is registered in the name of one spouse only other spouse is required to prove contribution towards the acquisition of said property in order to establish beneficial interest thereto”.

By this holding, the court gave effect to section 14of theMatrimonial Property Act.

36. In the case of PWK vs – JKG [2015] eKLR the court states as follows-

“where the disputed property is not so registered in the joint names of the spouses but is registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective properties of financial contribution either direct or indirect towards the acquisition of the property. However, in cases where each spouse has made a substantial but unascertainable contribution, it may be equitable to apply the maxim Equality is equity while heeding the caution of Lord Pearson in Gissing vs Gissing [1070] 2ALL ER 780 Page 788” (own emphasis)

37. Similarly in the celebrated case of PETER MBURU ECHARIA VS PRISCLLA NJERI ECHARIA [2007] eKLR it was held thus:-

“It is clear from those cases that when dealing with disputes between husband and wife over property the court applies the general principles of law applicable in property disputes in all courts between all parties irrespective of the fact that they are married. Those principles as Lord Diplock said in Pettit are those of English law of trusts. The House of Lords specifically decided so in Gissing vs. Gissing. According to the English law of trusts it is only through the wife’s financial contribution, direct or indirect towards the acquisition of the property registered in the name of her husband that entitles her to a beneficial interest in the property.” (Own Emphasis)

38. It manifest that Section 14of theMatrimonial Property Act creates a trust in favour of the Applicant with respect to the suit property in question. It is not disputed that the property though registered in the sole name of the Respondent was acquired and developed during the subsistence of his marriage to the Applicant. The couple cohabited as man and wife on the said property from the year 1995to2015, a period of about twenty (20) years. The above facts have not been disputed by the Respondent. The Respondent has not effectively rebutted the legal presumption of a trust in favour of the Applicant. In the premises, I find and hold that the property known as LR No. xxxx though registered in the name of the Respondent is in fact matrimonial property which the Respondent holds in trust for the Applicant.

(2) Did the Applicant prove contribution towards the acquisition of said property.

39. The Respondent set out in great detail the financial contribution which he made towards the acquisition of the suit property. The Applicant demonstrated (and this has not been disputed) that he paid the deposit of Kshs 60,000/- as well as the balance of the purchase price being Kshs 520,000/- through a loan which he obtained from Madison Insurers Ltd who were his employers at the material time. The Respondent has also demonstrated (again a fact not disputed) that he single handedly serviced the loans by payments of Kshs 51,000/- monthly. The Respondents financial contribution towards the acquisition of this matrimonial home is not in any doubt.

40. In order to stake her claim to a share of said matrimonial home the Applicant is required by law to demonstrate that she too made a contribution towards the acquisition of the same.

41. Contribution by a spouse for purposes of sharing matrimonial property may be monetary or non-monetary or both. According to section 2ofthe Matrimonial Property Act;

“contribution” means 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; and

(e) farm work; (own emphasis)

42. Section 9 of the Act recognizes contribution through improvement of a property acquired before or during the marriage in the following terms:-

“Where one spouse acquires property before or during the marriage and the property acquired during the marriage does not become matrimonial property, but the other spouse makes a contribution towards the improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made”.

43. Therefore due consideration is given in law to both monetary and non-monetary contribution.

44. In Civil Appeal No 142 of 2018 in CWM vs JPM [2017] eKLR, the Court of Appeal held as follows:-

“…Parties are of equal worth and human dignity, whatever their station in life. To the issue before us, it is obvious the appellant having been married for 18 years made some contribution to the family of the respondent at the time of such coverture. In our view, that contribution, be it domestic work and management of the matrimonial home, child care; or companionship falls within the definition of contribution under the Act.” (own emphasis).

45. The Applicant told the court that she participated in the ‘identification’ of the land in Karen. That she played a role in ‘supervising’ the construction of the house by regularly attending site meetings and giving her input. That she was involved in the ‘selection and purchase’ of furniture and fittings and supervised the landscaping of the property.

46. The Applicant further states that she enabled and facilitated the Respondent to meet his financial obligations in paying the mortgage payments by taking up the management of the household, paying and supervising domestic staff, buying food for the family and generally ensuring the Respondents well-being by offering him companionship.

47. In disputing this the Respondent claims that it was he who purchased all the furniture and fittings, that it was he who paid the domestic staff and he denies that the Applicant provided any input in the construction of the house. All in all, the Respondent wants this court to believe that aside from his financial contribution aforesaid he also took up the role of managing the household by buying all furniture and fittings, paying all the domestic staff and paying for all repairs due to wear and tear in the house.

48. The parties both concede that in the beginning their marriage was harmonious. They worked together as a team to build up their home and to acquire assets. Therefore, the Applicant in her capacity as a wife must have participated in the acquisition, building and furnishing of the matrimonial home. The Respondent claims that he acquired and developed the suit property as his ‘retirement home’. However, the property was acquired and developed when the couple were in a stable and happy marital union. In such circumstances, the obvious intention for the acquisition and development of the suit property was as a family home and not a retirement home for the Respondent alone as he alleges.

49. Under cross-examination the Respondent admits that-

“… we intended to occupy the property as a couple. In our marriage, we always consulted. When I acquired the property, I consulted my wife. We agreed to purchase the property. We discussed the design of the house. The architect drew the design and we looked at it and took professional advice of the architect and the quantity surveyor…”

50. From the above it is quite clear that the decision to acquire and develop the suit property was a joint decision and that the property was acquired for use by the parties as a couple.

51. In the case of FS- VS E.Z [2016] eKLR the court stated as follows:-

“It should not be lost that when properties are acquired during the subsistence of the marriage, both parties are happy and have trust on each other. There is no suspicion at that time. It is unfortunate that when the marriage hits rock bottom, the registered party strives to have the property registered in his/her name be declared as exclusively his/hers. In this case, the applicant concedes that it is the respondent who made the financial payments towards the purchase of the properties. The respondent is a foreigner and was not in Kenya when the properties were bought. The matrimonial property was bought in 2004 soon after the marriage. All the monies were provided by the respondent. The presumption is that the applicant held the properties in trust for the respondent. The applicant's contention that she has held the properties for ten (10) years and the respondent has not asked the properties to be transferred to his name cannot hold. The respondent trusted her and there was no warning at that time that the marriage would not last. I do find and hold that the properties were being held in trust for the benefit of both parties.” (own emphasis)

52. The Respondent claims that during the entire duration of their marriage the applicant brought no financial benefit to the union. I find this hard to believe. The Applicant was in full time employment earning what the Respondent terms a good salary. I find it hard to believe that no single coin of the Applicant earnings were applied to the upkeep and maintenance of the family home.

53. It is not conceivable that the Respondent who was holding down a full time job would work all day then rush home in order to manage the affairs of the household by giving instructions to the domestic staff on how to clean, what to cook etc. These are responsibilities which are ordinarily left to the wife to perform.

54. If the Respondent was such a ‘one man army’ as he suggests then why did the stay married to the Applicant for thirty (30)odd years. I find it hard to believe that whilst the Respondent did everything and provided everything for the family, the Applicant just sat around like a sack of potatoes watching the world go by.

55. Whereas the Respondent denies that the Applicant was involved in the construction he only produced one set of minutes for the site meetings to confirm that she never attended the site meetings. The Respondent admitted that he was the custodian of all the minutes yet he only produced one set of minutes to prove his allegation. I have no doubt that the Respondent withheld all the other minutes because they would have disproved his claim that the Applicant never attended any site meetings. The Applicant did produce as evidence photographs taken of the suit property at various stages of its construction (see page 11 of the Applicants list of Documents dated 22nd October 2018). These proves the involvement of the Applicant in the construction process and her visits to the site.

56. By virtue of her long marital union with the Respondent and in her role as a wife, I find that the Applicant certainly provided to the Respondent the companionship and peace of mind that comes with marriage, which gave the Respondent the freedom and capacity to finance the acquisition of the suit property.

57. Section 2of the Matrimonial Property Act recognizes companionship as “contribution”. The companionship and home management is what enabled the Respondent to attend to his job successfully enough to meet the financial obligations towards the purchase of the suit property. It is arrogant of the Respondent to seek to denigrate and belittle the role his wife played in the marriage just because that marriage has now broken down.

58. The Applicant was in employment and earned a salary. I have no doubt that she utilized that salary towards the management and upkeep of the home and in playing the role normally reserved for the female spouse in a home. In this way, the Respondent was at liberty to cater for the large expenses, e.g., the mortgage payments.

59. The Respondent denies that the Applicant played any role in providing for home comforts and claims that since she worked from 6. 00 am to 6. 00 pm she did not cook or run the home. The fact that the Applicant was in full time employment (as most women and mothers in Kenya are) does not mean that she played no role whatsoever in running the home. Even if there were cooks and servants, the staff would need to be instructed and their work no doubt had to be supervised. I do not accept the Respondents contention that he performed every single task in the home whilst the Applicant contributed zero for the entire period of their marriage.

60. Accordingly, that despite the absence of evidence of direct financial contribution, I find that the Applicant made substantial non-monetary contribution towards the acquisition of the suit property by picking out furniture and fittings, managing the home and providing companionship and other wifely duties to the Respondent. Such non-monetary contribution though no quantifiable must surely be given due recognition. I therefore find and hold that the Applicant made substantial non-monetary contribution towards the acquisition of the matrimonial home.

(3) Distribution of the Matrimonial Home

61. In considering the mode of division of the matrimonial home the court must be guided by Article 45ofKenya 2010 which provides that-

“Parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of the marriage”.

62. The above constitutional provision by no way means that each party is entitled to a 50% share of all property acquired during the subsistence of a marriage. The share of each spouse will depend on their respective contribution towards the acquisition of said property.

In PNN – VS ZWN (2017) eKLR Hon Justice Kiage, JA Stated as follows:-

“I think that it would be surreal to suppose that the Constitution somehow converts the state of coverture into some sort of laissez-paser, a passport to fifty percent wealth regardless of what one does in that marriage. I cannot think of a more pernicious doctrine designed to convert otherwise honest people into gold-digging, sponsor-seeking, pleasure-loving and divorce-hoping brides and, alas, grooms. Industry, economy, effort, frugality, investment and all those principles that lead spouses to work together to improve the family fortunes stand in peril of abandonment were we to say the Constitution gives automatic half-share to a spouse whether or not he or she earns it. I do not think that getting married gives a spouse a free to cash cheque bearing the words “50 per cent.” (own emphasis)

63. Similarly, in AW vs MVCMAWM [2018] eKLR, the Court of Appeal observed as follows:-

" ...... This now takes us to the crux of appeal; that is whether the appellant was entitled, to a larger share being 50/50 ownership of the suit premises or as cross-appealed by the Respondent the award of Kshs.2 million was excessive. This suit was filed on 30th May, 2015 after the Matrimonial Property Act was in operation.........what proportion or share should the appellant be awarded? It is common ground that the suit premises was inherited by the Respondent and just like the learned trial Judge, we appreciate no case is like another and each must be considered on its own merit while bearing in mind the peculiarities, circumstances and the principles of fairness and human worth in each case. Just like the old saying goes, "no one should reap where they did not sow and none should reap more that they planted." That is the basic tenet of equity which follows the law." (own emphasis)

64. Therefore in considering the share of a property due to each spouse more emphasis is laid on ‘equity’ rather than on ‘equality’.

65. In PNN – VS – ZWN [supra] the court stated as follows:-

“…in determining the distribution of matrimonial property at the dissolution of a marriage the trial court ought to dispassionately scrutinize the direct and indirect contribution of each party to the marriage in the acquisition and/or development of the suit property…” (Own emphasis)

66. The evidence is that the Respondent made direct financial contribution (by way of loans obtained) towards the acquisition and development of the suit property, but bearing in mind and giving due recognition to the non-monetary contribution made by the Applicant, I find that the Applicant is entitled to a 30% (or 1/3rd) share in the suit property. Therefore, this summons succeeds and the court makes the following orders-

(i) THAT declaration do and is hereby issued that the immovable property known as LR No. xxxx contained in Grant IR No. xxxx and all developments therein comprises matrimonial property.

(ii) THAT the Applicant is entitled to one-third (1/3rd) share of the property known as LR No. xxxx (IR No. xxxx).

(iii) THAT the immovable property LR No. xxxx contained in Grant IR No. xxxx and all development thereon be valued and the Respondent be and is at liberty to buy out the 1/3 share entitlement due to the Applicant.

(iv) In the alternative the said immovable property known as LR No. xxxx (IR No. xxxx) and the developments thereon be valued, and/sold and it proceeds be shared between the Applicant and the Respondent on a 30:70 ratio.

(v) This being a family matter each side shall meet its own costs.

Dated in Nairobithis 4thday of March 2022.

..........................................

MAUREEN A. ODERO

JUDGE