[2020] KEHC 9199 (KLR)
The court found that there were clear errors apparent on the face of the record in the judgment, specifically the allocation of property B14 contrary to the parties' agreement and the omission of the refund of Kshs.200,000 to the husband. The court held that these errors warranted review to ensure the judgment...
Source-derived case information.
- Citation
- [2020] KEHC 9199 (KLR)
- Parties
- Respondent: RWN; Applicant: NKM
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 33 of 2014
- Procedural Posture
- Divorce Cause / Ruling on Application for Review of Judgment
- Outcome
- application for review allowed; judgment reviewed and corrected to reflect parties' agreement
- Judges
- A Ali-Aroni
- Legal Topics
- Matrimonial Property Distribution, Review of Judgment, Error Apparent on Record
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
RWN
Respondent
NKM
Applicant
Procedural Posture
Divorce Cause / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether there was an error apparent on the face of the record in the judgment regarding the distribution of matrimonial property.
- 2 Whether the judgment failed to reflect the parties' agreement on property B14 and the refund of Kshs.200,000.
Ratio Decidendi
The court found that there were clear errors apparent on the face of the record in the judgment, specifically the allocation of property B14 contrary to the parties' agreement and the omission of the refund of Kshs.200,000 to the husband. The court held that these errors warranted review to ensure the judgment accurately reflected the agreement dated 24th February 2014, which the original judgment intended to adopt. The court therefore reviewed the judgment to correct the property allocation and to direct the refund as agreed by the parties, thereby giving effect to the letter and spirit of their agreement.
Court Disposition
application for review allowed; judgment reviewed and corrected to reflect parties' agreement
Orders
- RWN to get specified plots as per the agreement.
- NKM to get specified plots as per the agreement.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 33 OF 2014
RWN............................PETITIONER/RESPONDENT
VERSUS
NKM.............................RESPONDENT/APPLICANT
RULING
1. In a judgment dated 27th of July 2018 Musyoka J dissolved the marriage between the parties herein and went ahead to distribute matrimonial properties in the following term:
“That matrimonial properties shall be shared out as per the terms of the agreement dated 24th February, 2014 so that
i. The Petitioner shall have plot numbers [xxxx]
and
ii. The Respondent shall have plots numbers [xxxx].”
2. In his judgment the learned Judge appreciated that some properties were acquired before marriage and some during coverture and the fact that the parties had agreed on distribution which agreement he relied upon.
3. In the agreement the parties were to divide the properties as follows; the wife-RWN –properties [xxxx]. Husband - NKM properties [xxxx]. R was to refund N Kshs.200,000 to compensate for electrical wiring by the end of April 2014 and N was to vacate buildings that were allocated to R.
4. By an application dated 20th August 2018 the Applicant seeks for review of the judgment herein citing an error apparent on the face of the record as the learned Judge having relied on the agreement between the parties went ahead to allocate property B/14 to the wife and failed to direct refund of Khs.200,000/= to the husband/applicant as per the agreement.
5. The application is opposed on the basis that the Applicant’s only recourse is an appeal as no grounds for review have been brought forward.
6. Having considered the application, the response and submissions made by counsel on record I am of the opinion that the learned Judge clearly and more than once indicated in his judgment that he would rely on the agreement by the parties in distributing properties.
Secondly it is clear that in the final analysis property B14 which was to go to the Applicant in the agreement s reflected alongside other properties that were to go to Rose and the refund of Kshs.200,000/= was not mentioned.
7. In my view there are obvious errors apparent on the face of the record and good enough reason for this court to review the judgment in order to put effect to the letter and spirit of the agreement by the parties dated 24th December, 2014 and which Musyoka J intended to adopt.
8. Consequently therefore the judgment dated 27th July, 2018 is reviewed to the extent that matrimonial properties will be divided as follows:
i. RWN to get plots Nos. [xxxx].
ii. NKM to get Plots Nos. [xxxx].
iii. R to pay N Kshs.200,000/= as a refund for wiring.
iv. N to vacate all properties allocated to R.
v. Lastly, each party to henceforth collect rent if any payable in their respective properties.
9. Each party to bear his/her on costs.
DATED, SIGNEDANDDELIVEREDAT NAIROBI THIS 16th DAY OFJANUARY, 2020.
ALI-ARONI
JUDGE
In the presence of:
Petitioner ….………………….………………………………………………………………..
Respondent……………………………………………………………………………………..