[2023] KEHC 26531 (KLR)

SSI v SII (Matrimonial Cause E001 of 2023) [2023] KEHC 26531 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26531 (KLR)

Republic of Kenya

In the High Court at Kakamega

Matrimonial Cause E001 of 2023

SC Chirchir, J

November 30, 2023

IN THE MATTER OF THE MATRIMONIAL PROPERTY ACT CAP 43 AND IN THE MATTER OF THE MATRIMONIAL CAUSES ACT CAP 152 AND IN THE MATTER OF AN APPLICATION FOR MATRIMONIAL PROPERTY RIGHTS

Between

SSI

Applicant

and

SII

Respondent

Ruling

1. By way of an originating summons dated 13th March 2023, the applicant moved this court seeking for the determination of the following issues;i.Whether the Applicant and the respondent were legally married and if the matrimonial Act applies to their union.ii.Whether the Applicant and the Respondent during the substance of their marriage used and applied their income unsparingly towards the acquisition and development of their acquired matrimonial properties.iii.Whether the parties during the subsistence of their marriage acquired the following properties located in Imuhali, Donald’s place, Mushikulu and at River Yala which are;a.4 pieces of landi.2 pieces of land with 20,000 treesii.2 pieces of land with food cropsb.Residential home located at Kakamega/Shisenjeri/XXc.Proceeds of rental income from all 11 rental units at Idakho/Shisenjeri/2XX9d.[Particulars Withheld] business store located at Idakho/Shisenjeri/2XX9e.Absa Bank Kenya Limited business account No. 03XX9XXXX499 associated with [Particulars Withheld].iv.Whether the applicant contributed to the acquisition of the mentioned properties and if so to what extent.v.Whether the applicant is entitled to the equal shares of all the matrimonial properties acquired jointly despite the respondent having and/or is in the process of having himself registered as the sole owner.vi.Whether the court should order that all the matrimonial properties acquired during the subsistence of the marriage be distributed equally now that the marriage is dissolved.vii.Who pays the costs?

2. Together with Originating summons, the Applicant filed a Notice of motion dated 13th March 2023 where she sought orders as follows:i.A temporary injunction restraining the defendant/respondent, their agent or any other person from selling or transferring the property located at Imuhali, Donald’s place Mshikulu and river yala registered in the name of the respondent pending the hearing and determination of the matrimonial cause which was ongoing in the superior court of California County of kings in USA.ii.That the court be pleased to issue an order to the land registrar kakamega to register a restriction order against the matrimonial home Kakamega/Shisenjeri/XX Madivin sub-location business located on Idakho/Shisenjeri/2XX9 and other properties acquired during the subsistence of their marriage pending the hearing and determination of the matrimonial cause which was ongoing in the superior court of California County of kings in USA.iii.A declaration be made that all properties listed with improvements thereon acquired by the joint funds and the parties during the subsistence of their marriage and registered in the name of the respondent and or both parties and the same are jointly owned by the applicant and the respondent specifically.iv.That all the proceeds of rental income from the 11 rental units be deposited in Absa Bank Kenya limited business account No 03XX9 8XXXX99 and should not be accessed by the respondent until the hearing and determination of the matrimonial cause and the divorce cause No. 18 FLO 350 which is ongoing in the superior court at California county Kings in USA.v.That in the alternative all the proceeds of rental income from the 11 rental units be deposited in Absa Bank Kenya limited business account No 03XX9 be deposited in court pending the hearing and determination of the matrimonial cause and the divorce cause No. 18 FLO 350 which is ongoing in the superior court at California county Kings in USA.vi.That the properties be shared equally and if incapable the property be sold and that the net proceeds be shared equally between them.vii.That the respondent transfer at his costs and expenses proportions of the said properties to the applicant.viii.That a declaration that the respondent is accountable to the petitioner in respect of all the income and rental proceeds of the matrimonial propertiesix.That the properties and the income aforesaid be settled in proportion aforesaid or as the court may orderx.That costs of this application be awarded to the applicant.

3. What is coming for determination is the Notice of motion.

4. The Motion is supported by an affidavit sworn by the applicant. she averred that that they solemnized their marriage on 12th December 2000 under the marriage Act Cap 151 and the institution was blessed with two issues BA and TIM.

5. They separated on 10th September 2017 and in 2019, the respondent filed for a divorce in divorce cause no 18FLO350 which is currently pending in superior court at California county of kings

6. She averred that during the subsistence of their marriage, the parties acquired matrimonial properties jointly by monetary contribution and not non- monetary contribution.

7. She is apprehensive that the respondent may sell of the properties and consequently she has placed a caution on the whole of that property known as Idaho/shisenjeri/2XX9 and prays that the court grants her orders to access the other properties located in Imuhali Donald’s place, Mushikulu and at River Yala.

8. She has further deponed that she contributed to the acquisition and running of of [Particulars Withheld] and that she used to have access to the business’s accounts

9. She finally avers that she is entitled to 50% of the share of the properties claiming that she made substantial monetarily contribution as well as non- monetary towards the acquisition of the properties. She further stated that her non- monetary contribution consisted of taking care of the family and the maintenance of the matrimonial properties.

The Respondent’s case 10. The Respondent acknowledges that he and the respondent celebrated their union on 12th December 2000; that the union broke down on 10th September 2017 due to irretrievable differences which prompted the Respondent to file a divorce cause No18FLO350 which he claims is pending hearing and determination in the superior court of California County in Kings United States of America (USA.)

11. He avers that the Two Applications have been filed prematurely; and that they pre-empt the outcome of the divorce proceedings in the divorce cause. His prayer is that the orders sought should not be granted until the final determination of the divorce cause.

12. He further asserts that he is the sole and absolute registered owner of land parcel no. Idakho/Shisenjeri/2XX9 having acquired the property legally on 24th October 2012 with no financial support from the applicant and hence she has no claim to the property.

13. In regard to the land parcel No.Kakamega/Shisenjeri/XX he states that the property is registered in the name of one II ; has a long standing dispute and thus applicant cannot claim that they own the land as Part of the matrimonial properties

14. He further states that he left the county on 2nd September 2009 for the USA and that he has never undertaken any agricultural activities in the country. He therefore denies that he has a plantation of 20,000 trees as alleged by the applicant. respondent avers

15. With regard to the [Particulars Withheld] business, the Respondent states that when he left the country in the year 2009, he left the business in the hands of the Applicant but she mismanaged and the business eventually closed down in the year 2016.

16. The Respondent further states that he has never had any joint venture with the Applicant and that all the properties he has acquired was never jointly owned.

17. On ABSA Bank Account No. No. 03XX9XXXX499, the Respondent claims that the account is his personal Account and had no connection with the [Particulars Withheld].

18. He further denies owing any rental properties.

19. He prays that the ex parte orders made on 20th March 2023 be reviewed, varied and set aside.

Applicant’s submissions 20. The applicant filed her written submissions dated 12th may 2023 in which she reiterated the contents of her supporting Affidavit.

21. On whether she is entitled to a share of the matrimonial property before the dissolution of the marriage, the Applicant submits that the application is brought under section 7 of the matrimonial property Act which allows a party to a divorce to apply for a declaration of the rights to any property between a spouse or a former spouse. In this regard, she has relied in the case of CK v. AGM -Nairobi High court civil suit 14 of 2013

22. She has further relied on Article 45 (5) of the constitution on parties’ equal right at the time, subsistence and the dissolution of a marriage as well as section 6 of the matrimonial property Act.

23. On the non –monetary contribution, she states that she provided companionship, maintained the family home and took care of the children. She bases her claim on section 7, section 14 of the matrimonial property Act 2014.

24. She has further relied on the case of PWK vs. JKG 2015 eKLR to buttress her submission on the issue of her her equal entitlement to the property.

25. On whether the court has jurisdiction to determine the matter, she invokes Article 165(3) of the constitution on the jurisdiction of the high court to hear both the civil and the criminal matters as well as the jurisdiction to determine whether a right has been denied or infringed.

26. It is her final submission that she is entitled to 50% of all the properties.

Respondent’s submissions 27. In his submissions dated 2nd October 2023 the respondent reiterates his averments in the affidavit to the effect that the Application is subjudice. He relied in the case of EKM VS. HUM (2021) eKLR where the court held that it could not divide the matrimonial property where the marriage has not yet been dissolved. He further submits that there was no property acquired through joint efforts, that is available for distribution.

28. He also reiterates his averments that [Particulars Withheld] was under the management of the applicant and she is the one who mismanaged it.

Determination 29. I have considered the parties Affidavits as well as their submissions. From the onset I wish to point out that what this court is mandated to do at this stage is the Notice of Motion. The court has not been moved to determine the originating summons.

30. It is not in dispute that the parties are legally married as man and wife under the then marriage Act , cap 150 ( Now repealed) as demonstrated by the copy of the marriage certificate attached to the Application. The fact that there are divorce proceedings pending in the USA is not disputed.

31. Thus, the only issues for determination are as follows:a.Whether the Application is sub judiceb.Whether the properties were jointly acquired by the parties and whether the said properties are at risk of disposal.c.What appropriate orders should this court issue?

Whether the Application is sub judice? 32. The parties are all in agreement that the divorce cause pending hearing and determination. The applicant has contended that under the provisions of section 17 of the Matrimonial property Act (The Act) she has a right to seek for declaration of her rights over the property she owns with the Respondent

33. The respondent on the other hand has submitted that such a prayer would be subjudice as the divorce cause is still on going in the USA.

34. What is going on in the USA are divorce proceedings and none of the parties have suggested that the issue of property is part of those proceedings. The two causes deal with two separate albeit related matters. The suit in the USA seeks for dissolution of the marriage while the present suit seeks for declaration of rights over the property presumably acquired in the course of marriage. Further Section 17 of the Act provides as follows:“(1)A person may apply to a court for a declaration of rights to any property that is contested between that person and a spouse or a former spouse of the person.(2)An application under subsection (1)—(a)Shall be made in accordance with such procedure as may be prescribed;(b)May be made as part of a petition in a matrimonial cause; and(c)may be made notwithstanding that a petition has not been filed under any law relating to matrimonial causes.”( Emphasis added)

35. Thus, an Application for declaration of Rights between spouses or former spouses need not await the dissolution of marriage. In deed such declarations can be sought even during the subsistence of the marriage.

36. The subject matters of the suits are separate and therefore the plea of sub judice is unwarranted and I hereby dismiss the same.

37. I hasten to add that whereas court has the jurisdiction to make declarations pertaining to the parties’ beneficial interests in property during the pendency of their marriage issues pertaining to the sharing of the property can only be dealt upon if and when the marriage is dissolved. In this regard I find support in the court of Appeal decision in the case of AKK Vs PKW ( 2020) e KLR where it was 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. However, by virtue of section 7 , the High court cannot divide the property between spouses until their divorce or their marriage is otherwise dissolved. We find that the Trial court was clothed with the requisite jurisdiction to entertain those aspects of the appellant’s prayer that did not involve the division of the matrimonial property…………”

Whether the properties were jointly acquired and are at risk of disposal 38. The second issue is whether the applicant has established beneficial interest in the property and whether the said properties are at risk of disposal.

39. The applicant has listed several properties which she claims to be matrimonial property these being;a). 4 pieces of land, 2 of which is planted with food crops while the other two has food cropsb). Residential home located at Kakamega/Shisenjeri/XXc).Proceeds of rental income from all 11 rental units at Idakho/Shisenjeri/2XX9d).[Particulars Withheld] business store located at Idakho/Shisenjeri/2XX9e). ABSA Bank Kenya Limited business account No. 03XX9XXXX499 associated with [Particulars Withheld].

40. It is the Applicant’s case that the above properties constitute matrimonial properties. The Matrimonial Property Act under Section 6 provide that Matrimonial Property to include.(a)the matrimonial home or homes(b)Household goods and effects in the matrimonial home or houses or(c)any other immovable and movable property jointly owned and acquired during the subsistence of the marriage."

41. I will proceed to consider the alleged properties separately.

Land parcel Idakho/Shisenjeri/2XX9, 41. The applicant claims that she had made both monetary and non-monetary contribution in the acquisition of this property which she termed as one of the matrimonial properties. She alleges that all the transactional documents are with the respondent and that he refused to include her name in the registration documents. The Applicant attached a certificate of official search to her Application which certificate indicate that the land in question was registered solely in the name of the Respondent.

42. The respondent on the other hand avers that he single handendly purchased the land on 12th October 2012, without any financial support from the Applicant.

41. Section 14 of the matrimonial property Act makes the following presumptions as to property acquired during marriage:“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; andb.In the names of the spouses jointly, there shall be a rebuttable presumption that their beneficial interests in the matrimonial property are equal.

41. According to the parties, they were married on 12th December 2000 and the search shows the property was acquired in the year 2012. The property was therefore acquired during the subsistence of the marriage. The onus was on the Respondent to rebut the presumption referred to in aforesaid section of the Act. Apart from making the assertion that he solely purchased the property the Respondent has not provided any documentary evidence to corroborate his claim.

42. Further Article 45 (3) 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.

43. Further the Applicant has further pleaded non- monetary contribution. Section 2 of the matrimonial property Act recognises non- monetary contribution and such contribution include:a.domestic work and management of the matrimonial home;b.child care;c.companionship;d.management of family business or property; ande.Farm work.

41. In MGNK vs AMG [2016] eKLR the court of appeal observed : - “in a marriage set up, it is not realistic to expect partners to keep track of their respective contributions towards the purchase of family property because at the time of such purchase divorce is not on their minds. It is therefore pretentious to expect any of them to be able to show their exact contributions towards the acquisition of the subject property. Notwithstanding the difficulty in determining the exact contributions of each spouse towards the purchase of family property, the court still has the duty to apportion family property to the best of its ability taking into account not only the personal earnings of each spouse and how it was applied in the family, but also each party’s indirect contribution not only to the purchase of the subject property but also to the welfare of the family as a whole.”

42. Thus, non- monetary contribution toward acquisition of matrimonial property is founded in law

43. In my considered view to the extent that the Respondent has failed to rebut the presumption that he holds parcel No. kakamega/shijenjeri/2XX9 in trust for the Applicant , the Applicant has established her beneficial interest in the property.

Kakamega/Shisenjeri/XX, 41. Although the Applicant argues that the above parcel forms part of the matrimonial property , she has not provided any evidence to prove that the property was owned by the Respondent. On the contrary the Respondent has provided evidence showing that the land is currently owned by one II. Although the Respondent has registered a caution against the Title, the right of ownership to the property by the Respondent remains under the cloud of uncertainty. The Applicant has failed to establish beneficial interest in respect to this particular Title.

Rental income 41. On the proceeds of rental income from the alleged 11 rental units in respect of which the Applicant has sought to have it deposited in ABSA Bank Kenya limited business account No 03XX9 8XXXX99, there was no evidence of the existence of the said rental houses . There is also no deposit slips, bank statements or any document that shows that some rental income has ever been deposited in the alleged Account . Further while the Applicant claims that the that the Account was a business Account and jointly owned by the parties, the Respondent insists that the Account is a personal Account. The onus as on the Applicant to prove that the Account was a business Account used for the supermarket business and into which the alleged Rental proceeds were deposited and not the respondent’s personal Account. Am not satisfied that the Applicant has proved her claim in this regard.

[Particulars Withheld] 41. The Applicant submits that [Particulars Withheld] business store located at Idakho/Shisenjeri/2XX9 is jointly owned by the parties . Although documents of ownership of the said business have not been provided, the respondent admits that such a business did exist at some point and the Applicant is the one who was managing it. However whereas the Applicant insists that the proceeds from the business were being banked in the ABSA Account the respondent states that the business has closed down.The Applicant has attached what appears to be financial statements for the business but the same belong to 2015 financial year. There is nothing therefore to show that the business was up and running as at the time of the filing of this suit. The Applicant ought to have submitted current financial statements if she was serious about making a case for declaration of joint ownership of the business.

42. The Applicant has told the court about other four pieces of land covered by trees and food crops, but there are no particulars provided. The existence of the alleged parcels of land has therefore not been proved. Without the identification of the property how then will the orders that this court may grant be enforced? This court cannot issue orders which from all indications available, are not capable of being enforced . This prayer is dismissed.

Has the Applicant satisfied the conditions for Granting an injunction? 41. In Nguruman Limited v Jan Bonde Nielsen & 2 others, CA No. 77 of 2012; [2014] eKLR, the Court of Appeal reiterated the conditions to be met by a litigant who seeks injunctive relief as follows:“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;a.establish his case only at a prima facie level,b.demonstrate irreparable injury if a temporary injunction is not granted, andc.ally any doubts as to (b) by showing that the balance of convenience is in his favour.

56. The Applicant has demonstrated that she has beneficial interest in the whole of that property known as Isakho/Shisenjeri/2XX9. The fact that the property is registered solely to the Respondent and the fact the documents of Title is with him lends credence to the Applicant’s apprehension of the risk of the property being disposed of.

57. Am satisfied that on a balance of probabilities the Applicant has established a primafacie case in respect to the whole of that property known as Title No. Isakho/Shisenjeri/2XX9 to warrant an order of injunction.

58. Declaratory orders, can only be made upon the court full hearing of the Originating summons and not at this stage

59. Consequently, the Application partially succeeds and I hereby proceed to make the following orders:a).Pending the hearing and determination of this matrimonial cause, a temporary injunction is hereby issued restraining the respondent , his Agents or any other person claiming under him from selling by public Auction, transferring or otherwise disposing of property known as Title No. Isakho/Shisenjeri/2XX9. b).The District Land registrar, kakamega county shall register an order of Restriction against Title No Isakho/Shisenjeri/2XX9 until further orders of this court.c).Each party to meet their own costs.

DATED , SIGNED AND DELIVERED AT KAKAMEGA THIS 30TH DAY OF NOVEMBER, 2023. S. CHIRCHIRIN THE PRESENCE OF:E. ZALO- COURT ASSISTANTMS GACHUA FOR THE APPLICANT.