[2022] KEHC 10544 (KLR)

RS v DK (Matrimonial Cause 16 of 2015) [2022] KEHC 10544 (KLR) (17 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10544 (KLR)

Republic of Kenya

In the High Court at Kericho

Matrimonial Cause 16 of 2015

AN Ongeri, J

June 17, 2022

Between

RS

Applicant

and

DK

Respondent

Judgment

1. The Applicant herein RS (hereafter referred to as the applicant) filed the Originating Summons (OS) dated 16/9/2015 seeking the following Orders:-(i)A declaratory order that 50% of the matrimonial properties, comprising of land reference number Kericho/Sosoit/ xxxx , a posho mill, two cows and 3,600 tea bushes planted in the respondent’s fathers land to be held in trust and for her beneficial interest.(ii)An order that the properties be shared equally and if incapable of being shared, that they be sold and the net proceeds shared equally.(iii)That the respondents transfers at his own cost and expense proportions of the said property to the applicant.(iv)That the respondent do bear the costs of this Application

2. The Originating Summons is supported by the Affidavit of the Applicant in which she has deposed that she got married to the respondent in 1994 and lived with him for 15 years until 2009 when he married another woman, following a prolonged separation, she filed divorce proceedings which eventually terminated their relationship.

3. The applicant further deposed that during the subsistence of their marriage they purchased land; bought a posho mill and cows; planted 3600 tea bushes on land belonging to the respondent’s father; bought building material and put up a home.

4. The applicant further deposed that she was cognizant of the fact these matrimonial properties are registered in the respondent’s name despite having been acquired through joint efforts of both the applicant and respondent. She stated that Kalenjin customs do not allow registration of properties under a woman’s name.

5. The applicant finally deposed that she made substantial contribution towards acquisition of the said properties.

6. The respondent filed a Replying Affidavit dated 12/5/2016 in which he deposed that he did not at any time marry, live or cohabit with the express or implied intention to marry rather that applicant visited his house on various occasions.

7. He further stated that he met the applicant in 2003 and interacted with her on three different occasions.

8. The respondent averred that it was true that the applicant had filed for divorce against him vide divorce cause no. 5 of 2013 and judgment was issued, however, he contended that the same could be challenged as the cause proceeded ex parte and was not heard and determined on merit.

9. The respondent deposed that he and the applicant never acquired properties together and that the properties in question were acquired through hard work and concerted effort between himself and his wife Edna Chepkorir Rono.

10. The respondent averred that in the year 2000 he requested his father to allow him to plant tea on his land parcel L.R. No. Kericho/Kapsuser/xxxx and with the help of his wife Edna Chepkorir Rono and brother James Korir, he planted 1,500 tea bushes and not 3,600 as alleged by the applicant and he attached a copy of tea verification certificate from KTDA.

11. The respondent further averred that he purchased land parcel L.R. No. Kericho/Sosiot/xxxx in the year 2002 for Kshs. 340,000/= with a loan from Ndege Chai SACCO Ltd, money from his wife Edna Chepkorir Rono and money out of his salary and other consolidated income. He further stated that the sale agreement for the parcel of land was executed in 2002 and title issued the same year whilst he met with the applicant in 2003.

12. The respondent averred that the posho mill belongs to him and he acquired it using a loan of Kshs. 122,000/= advanced by Ndege Chai SACCO Ltd and attached bundle of bank statements and receipt of purchase of the posho mill.

13. The respondent averred that the applicant did not assist with purchase of building material for his house rather the house was built through the concerted efforts of the respondent and his wife Edna Chepkorir Rono.

14. The respondent maintained that all his properties are registered in his name and further that the applicant was not entitled to any of the properties as there was no nexus between them to warrant her a share of his properties.

15. The hearing of the Originating Summons proceeded by way of viva voce evidence.

16. Pw 1 RCS (Applicant) testified that the respondent was her husband, they got married in 1994 and that they divorced in 2015 vide divorce cause no. 5 of 2013.

17. She stated in 1999 they started a tea nursery and transplanted the seedlings to Kericho/Kapsuser/xxxx owned by the respondent’s father. Further, that sometime between 2001 and 2002 they purchased a piece of land from James Yotin, they planted maize and built a posho mill on the land. They purchased the piece of land in installments, the land was sold for Kshs. 300,000. Subsequently, using proceeds from the farm and her kiosk they purchased building material however they did not build a house as she was chased away from her matrimonial home. She therefore sought the court to grant her a share of the investments they made.

18. On cross examination, she stated that they bought the land together sometime between 2001 and 2002, paid in installments but she could not recall what she gave for the land. She was in possession of the title deed to the land. She reiterated that they bought the posho mill early in 2009, Daniel bought the posho mill, they collected money from various sources to purchase the posho mill and that Daniel did not take out loans to purchase land or the posho mill.

19. Pw. 2 James Yotin stated that he sold 1. 2 acres land parcel L.R. No. Kericho/Sosiot/xxxx to both parties. The purchase price was paid in installments and the title registered in the name of Daniel Siele. On re-examination he stated that he could not recall whether Ruth Siele was present at the time of signing the sale agreement or when the payments were made.

20. Pw. 3 stated that the parties were married in 1994 under Kispsigis custom, lived together and were farmers. On cross examination, Pw. 3 stated that he was not a witness to the Kipsigis marriage.

21. Pw. 4 stated that the parties got married in 1994. On cross examination, he stated that he was present at their customary marriage rites but could not recall what was done. He stated that he did not witness the purchase of the posho mill.

22. Rw. 1 Daniel Siele (Respondent) testified that he could recall divorce cause no. 5 of 2013 which was filed by the applicant, he did not defend the case. He further testified that he did not marry the applicant under any system of law.

23. He stated that he purchased land 1. 2 acres land parcel L.R. No. Kericho/Sosiot/xxxx from James Yotin, wrote a sale agreement and purchased the land at Kshs. 340,000, he paid the purchase price in installments and that the applicant did not contribute to the purchase of the property.

24. He further stated that he purchased the posho mill using a loan advanced by Ndege SACCO and produced a bundle of bank statements and a receipt from Tasha Enterprises. He stated that he planted tea seedlings in his father’s farm and produced a verification certificate from KTDA.

25. On cross examination Rw. 1 stated that he did not marry Ruth in 1994 and that the divorce cause no. 5 of 2013 was a fictitious claim rather he married Edna in 1998 under customary law. He also stated that he took out loans to purchase the land and posho mill. He stated that he did not have the title deed to the land. He also stated that he sold the land and that he did not sell the land to frustrate and/ or defeat this case.

26. Rw. 2 ECR testified that when she got married to Daniel Siele in 1998 he did not have a wife. On cross examination, she stated that she contributed Kshs. 130,000 to purchase the land and had a book in which she recorded this but did not know it would be required. She stated that they planted tea bushes together and had contributed towards buying building materials to construct their matrimonial home.

27. Rw. 3 the respondent’s brother stated that he did not know Ruth Siele and that the wife of the respondent was EC who got married in 1998. He was also aware of the tea bushes planted in their father’s land. On cross examination, he stated that he assisted Edna to plant the tea seedlings in their father’s land.

28. Rw. 4 a mason stated that he constructed a home for the respondent and his wife in 2011 and he knew the wife of the respondent as EK he did not know RS.

29. Rw. 5 who was employed as a labourer by the respondent’s father from 1980 to 2005 stated that he did not know RS, he knew the respondent’s wife as E. He was given work to build a seed bed by Edna and he was assisted by Rw. 3.

30. The court also summoned Willy Kipkorir Ruto, retired Chief of Kipkoiyan Location Belgut Sub-County to testify for the court, he informed court that he became a Chief in 1998 until he retired in 2018.

31. He stated that he knew both parties, he knew that the respondent married the applicant and that there was a time he wanted to divorce her. He stated that they were married, they did not have children, they lived together for a long time and acquired property. He stated that he only learnt of Edna after the applicant had left her matrimonial home.

32. On cross examination, he stated that he had on one occasion visited the home of Daniel and Ruth to arbitrate when they had marital trouble.

33. The parties filed written submissions which I have duly considered.

34. The applicant submitted that she and the respondent got married under the Kipsigis customs and traditions in 1994. Their marriage broke down leading to divorce and subsequently a decree absolute was issued on 25/3/3015 in divorce cause no. 5 of 2013. Consequently, the dispute herein was within the framework of the Matrimonial Properties Act, 2013.

35. The applicant submitted that the applicant and respondent acquired, developed, improved and maintained movable and immovable property during the subsistence of their marriage.

36. The applicant submitted that she made monetary and non-monetary contribution towards acquisition and development of the said properties which were acquired during the subsistence of their marriage between1994 to 2009.

37. The applicant submitted that she was engaged in full time farming, domestic work and management of the matrimonial home by purchasing household goods, ensuring that the household amenities were fully functional, cooking meals for the family and handling household chores and demands.

38. The applicant further submitted that she provided the respondent with companionship and support through decision making and problem solving.

39. The respondent submitted that the applicant had not proven to the required standard that there was a marriage subsisting between the applicant and the respondent.

40. The respondent further submitted that the applicant had not proven monetary or non-monetary contribution towards the acquisition of land parcel L.R. No. Kericho/Kapsoit/xxxx and the posho mill on the land and furthermore that there was evidence on record that he solely acquired the properties herein and that the evidence was uncontroverted and unchallenged.

41. The respondent submitted that the sale agreement for land parcel L.R. No. Kericho/Kapsoit/xxxx was not witnessed by the applicant despite her maintaining that she was there during its execution.

42. The respondent submitted that the applicants case ought to fail in its entirety and that the cows, tea bushes did not qualify as matrimonial properties and further to this there was no proof of the applicant’s contribution towards these developments.

43. The issues for determination in this Originating Summons are as follows:-i.Whether the applicant was married to the Respondent.ii.Whether the properties in question were acquired during the subsistence of the said marriage.iii.Whether a declaration should issue that 50% of the Matrimonial Properties herein be held in trust and for the benefit of the Applicant.iv.Whether the said properties should be shared equally.v.Who pays the costs of this suit?

44. On the issue as to whether the Applicant was married to the Respondent, the Respondent denied that he had married the Applicant. In his replying affidavit he deposed that he did not at any time marry, live or cohabit with the express or implied intention to marry the applicant rather that applicant visited his house on various occasions. The Applicant in support of her assertion that they were married and that their marriage was subsequently dissolved vide divorce cause no. 5 of 2013, produced a certificate making decree nisi absolute dated 25/3/2015.

45. The law requires that he or she who alleges a fact must prove the same. Section 107 (1) and (2) of the Evidence Act (Chapter 80 of the Law of Kenya), provides that:“(1)Whoever desires any court to give judgment as to any legal right 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”

46. In the case of Evans Otieno Nyakwana Vs. Cleophas Bwana Ongaro[2015] EKLR Majanja J. stated that: “As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue.”

47. I find that the Applicant has proven that she was married to the Respondent and that the marriage was subsequently dissolved by a competent court of law.

48. On the issue as whether the propertis herein were acquired duing the subsistence of the marriage,Section 6 of the Matrimonial Property Act, 2013 defines matrimonial property as: “ (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.”

49. The Applicant is seeking an order that the matrimonial property comprising Kericho/Sosiot/xxxx, a posho mill, two cows and 3,600 tea bushes in the Respondent’s father’s home be held in trust and for her benefit.

50. Although I find that there is evidence that the Applicant was married to the Respondent under Kipsigis customary law and that the marriage was subsequently dissolved by a competent court of law, I find that there is no evidence that the said properties were acquired during the subsistence of the said marriage and that the applicant had made monetary and non-monetary contribution towards acquisition of the said properties.

51. On the issue as to whether a declaration should issue that 50% of the matrimonial properties were held in trust and for the benefit of the Applicant, I find that the answer is in the negative.There is no evidence that the said properties were acquired during the subsistence of the Applicant’s marriage to the Respondent and that she contributed to the acquisition of the same.

52. On the issue as to whether the said properties should be shared equally, I find that the answer is in the negative for reasons that there is evidence the properties were acquired by the respondent after the marriage between the parties had irretrievably broken down in 2009, these include the posho mill and the home which was constructed in 2011 by the respondent and his current wife Edna.

53. I therefore find that the originating summons has no merit and I accordingly dismiss it

54. On the issue of costs, I order that each party bears its own costs of the suit.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 17TH DAY OF JUNE, 2022A. N. ONGERIJUDGE