[2022] KEHC 12675 (KLR)

SWG v JGK (Matrimonial Cause E003 of 2021) [2022] KEHC 12675 (KLR) (19 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12675 (KLR)

Republic of Kenya

In the High Court at Naivasha

Matrimonial Cause E003 of 2021

GWN Macharia, J

July 19, 2022

Between

SWG

Applicant

and

JGK

Respondent

Judgment

The Application 1. The Application is brought by way of Originating Summons under Sections 17(1) and (2) of the Matrimonial Property Act (No. 49) of 2013, Order 37 Rule 14 of the Civil Procedure Rules, 2010 and Article 45 (3) of the Constitution of Kenya. The Applicant seeks orders against the Respondent that:a.A declaration be made to the effect that land parcel number Nyandarua/Muruaki/XXX which is registered under the Respondent and land parcel number Nyandarua/Muruaki/XXXX which is registered in the name of the Applicant are matrimonial properties and that the Applicant is duly entitled to own and occupy the same without any interference from the Respondent either by himself his agents, employees and/or servants and/or agents.b.The Respondent be ordered by this Honourable Court to deliver the original Title Deeds in respect of the said land parcel number Nyandarua/Muruaki/XXXX and Nyandarua/Muruaki/XXXX of which he is in possession to the Applicant.c.The title to the said land parcel number Nyandarua/Muruaki/XXXX be transferred to the Applicant.d.The Deputy Registrar of this Honourable Court be authorized to execute the necessary documents to facilitate registration of the Applicant as the new owner of the said Land Parcel number Nyandarua/Muruaki/4061. e.A declaration be made that the Applicant is entitled to the livestock currently being in possession of the Respondent namely three (3) heads of cattle, three (3) calves and three (3) sheep.f.A declaration be made to the effect that the Applicant is wholly entitled to her household goods currently situate at the aforesaid land parcel numbers Nyandarua/Muruaki/XXXX and Nyandarua/Muruaki/XXXX.g.A declaration be made that the Applicant is entitled to half the pension payable to the Respondent by the Forestry Department estimated at Kshs. 1,400,000. 00h.The costs of the suit be provided for.

2. The Application is based on the grounds that the Applicant was the Respondent’s wife with the said marriage having been dissolved on February 24, 2021 in Engineer Senior Principal Magistrate’s Court in Divorce Cause Number 2 of 2020. The said suit parcels were acquired during the subsistence of the marriage and hosts the matrimonial home. The Respondent is the registered proprietor of another parcel Nyandarua/Muruaki/XXXX acquired during the subsistence of the marriage which the Applicant lays no claim over.

3. The Applicant further states that she contributed directly and indirectly towards the acquisition of the land parcels, livestock and household items for which she is rightful to claim a share.

4. The application is supported by an affidavit sworn by the Applicant on the April 7, 2021.

5. The Respondent neither entered appearance nor filed a response to the Application. There was an Affidavit of Service on record filed on the May 19, 2021.

6. The Applicant opted to proceed by way of written submissions when the matter came up for hearing.

The Applicant’s Case 7. In support of the Application, the Applicant filed her submissions on the April 5, 2022. The issues for determination were as follows:i.Whether the suit property is matrimonial property.ii.Whether the Applicant made any contribution in the acquisition of the matrimonial properties.iii.Division of matrimonial property.iv.Potency or otherwise of order prayed for.

8. It was the Applicant’s submissions that the listed properties were matrimonial property subject to the provisions of Section 6 of the Matrimonial Property Act. As such, she urged the Honourable Court to find that the listed properties fell under matrimonial property pursuant to the provisions of Section 14 of the Matrimonial Property Act which provides that:“14. 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; and(b)in the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal.”

9. The Applicant submitted that the contribution towards acquisition of any matrimonial property can be either monetary or non-monetary. Reference was made to Section 2 of the Matrimonial Property Act (hereafter the Act) which provides:In this Act, unless the context otherwise requires—““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.

10. It was the Applicant’s case that she undertook several income generating activities to complement the earnings of the Respondent who was a civil servant. She was also tasked with taking care of the children and doing the household chores. In the process she acquired single handedly a property Nyandarua/Muruaki/XXX registered in her name.

11. In support of the foregoing, the Applicant urged the Honourable Court to consider the authority of HNM v FTS[2021] eKLR where it was held:“56. Such non-monetary contribution is not illusory or of little or no weight; it is real and tangible contribution and must be given due weight in division of matrimonial property. I must buttress the need for the greater awareness by the courts of the value of non-financial contributions to the welfare of the family, and the increased recognition that, by being home and having and looking after young children, a wife may lose forever the opportunity to acquire and develop her own money-earning qualifications and skills.”

12. The Applicant conceded to being unable to produce any documentary evidence with respect to her contributions towards the acquisition of the matrimonial properties. However, she urged the Court to find that she indeed made both direct and indirect contributions towards acquisition of the said properties.

13. The Honourable Court was invited to consider the position as was in the case of EKTM v ECC[2021] eKLR where it was held:“78. It must however be appreciated that when two people meet and the marriage ship takes off from the dock, none of the passengers ever foresee that the ship would hit the turbulent waters in future. It is only when they are in deep seas and the ship has hit a rock and is about to capsize that they realised that they ought to have taken certain measures during the course of their voyage. By then too much water has gone under the bridge and there is little in terms of documentary evidence that can be retrieved as regards their monetary contributions. Consequently, none of them sees the need to keep documentary evidence of the expenses they incur towards the sustenance of the family. In fact, the keeping of such documents may bring problems to the couple as it may be deemed to lack of trust.79. Accordingly, it is my view that even monetary contributions ought not to be simply pegged on documentary evidence. The Court, may, based on the evidence presented before it be able to ascertain whether or not there was in fact any monetary contribution which was due to the fact that the spouses never contemplated that the marriage would go south, never documented.”

14. The Applicant prayed that there being no evidence to the contrary and having discharged her evidentiary burden of proof, it urged the Honourable Court to grant its prayers as per the Summons.

Analysis and Determination 15. This Court having considered the Application, Supporting Affidavit and submissions on record finds that the issues for determination as:i.Whether the suit properties constitute matrimonial propertyii.Whether the Applicant made contributions in the acquisition of matrimonial propertyiii.What ratio is to be adopted in the division of the matrimonial property?iv.Which properties will be subject to division?

Whether the suit properties constitute matrimonial property 16. The case is brought pursuant to Article 45(3) of the Constitution as read with Section 7 of the Matrimonial Property Act, 2013. The former 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.”

17. Section 6 of the Matrimonial Property Act 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.

18. Under Section 2 of the Act, ‘Matrimonial home’ has been defined as:-“any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property.”

19. In the case of T M V vs F M C (2018) eKLR, the court opined that:-“…for property to qualify as matrimonial property, it ought to have been acquired during the subsistence of the marriage between the parties unless otherwise agreed between them that such property would not form part of matrimonial property.”

20. The foregoing position on what constitutes Matrimonial Property was further addressed in P O M vs M N K (2017) eKLR where the court appreciated that:“This is a suit for division of matrimonial property. The legal regime governing such endeavor is the Matrimonial Property Act, Act No. 49 of 2013. The relevant provisions are to be found in Part III thereof. According to those provisions, in particular section 7, such property is to be divided upon divorce or dissolution of the marriage. The prerequisites are that the parties ought to have been in a marriage, to have had acquired matrimonial property during coverture and for their marriage to have been dissolved as at the point orders on division of matrimonial property are being made. A party, who moves the court for orders relating to division of matrimonial property, or declarations thereon, must strive to bring his case within the prerequisites stated above.”

21. The Applicant has listed a schedule of items forming matrimonial property as follows;a)Land Parcel Number Nyandarua/Muruaki/XXXXb)Land parcel number Nyandarua/Muruaki/YYYYc)Land parcel number Nyandarua/Muruaki/XXXd)Motor vehicle registration KBA XXXXe)A motorcyclef)A bicycleg)Wall unit and two small cup boardsh)Five sofa setsi)Seven tablesj)Four stoolsk)Three Beds Mattresses (4), bed sheets and blanketsl)Televisionm)Solar panel and batteryn)A generatoro)A sewing Machinep)A water tank of 2,300 litres capacityq)A gas cookerr)Kitchen utensilss)Pension payable to the Respondent by the Forestry Department of approximately Kshs. 1,400,000. 00

22. As to whether the above items constitute matrimonial property, there is no evidence to the contrary. It would be reasonable to conclude that the said items form part of the matrimonial property as no contradictions have been made.

Whether the Applicant made contributions in the acquisition of matrimonial property 23. The Applicant has submitted that it contributed directly and indirectly towards the acquisition of the aforementioned matrimonial properties. She engaged in income generating activities to supplement the income of the Respondent who was a civil servant. Further, she bore and took care of the 6 issues during the subsistence of the marriage. She further deposed that she managed the matrimonial properties and business. The foregoing is uncontroverted.

24. It is a well settled principle that each case has to be considered on its own merits. Indeed, the Court of Appeal had this in mind in TKM v SMW[2020] eKLR, that:“We bear in mind the edict in M v M// (2002) 1 EA 186, and many other decisions reminding the courts that in assessing the contribution of spouses in acquisition of matrimonial property, each case must be dealt with on the basis of its peculiar facts and circumstances but bearing in mind the principle of fairness.”a.It is important to restate what constitutes contribution towards the acquisition of matrimonial property as set in Section 2 of the Act thus:In this Act, unless the context otherwise requires—““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.

25. The Applicant has definitely not demonstrated her direct contribution to the acquisition of the said properties. However, it is undeniable that there having been a marriage between the parties and the properties having been acquired during the subsistence of the marriage, and the marriage has since been dissolved, the Court acknowledges the contribution of the Applicant as deposed and arrives at the conclusion that she made non-monetary contribution towards the acquisition of the said properties.

26. In so finding, I find solace in the position taken by the Court of Appeal in Civil Appeal No 142 of 2018 in CWM vs JPM [2017] eKLR, which in recognizing this reality 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 Respondent at the time of such overture. 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".

27. In the foregoing I am inclined to find that on a balance of probability, the Applicant made contributions towards the acquisition of the matrimonial properties.

What ratio is to be adopted in the division of the matrimonial property? 28. The next issue for determination by the Honourable Court is how the said properties are to be divided between the parties.

29. It is well settled in law that although spouses have equal rights in marriage inter alia, right to separately acquire property, matrimonial property is not subject to equal distribution upon and/or during dissolution of marriage. A party has to demonstrate his/her direct or indirect contribution towards the acquisition of the property subject of division.

30. In the case of ………………. the Court of Appeal had the following to say as regards to how matrimonial property should be divided:“To my mind, all that the Constitution declares is that marriage is a partnership of equals. No spouse is superior to the other. In those few words all forms of gender superiority-whether taking the form of open or subtle chauvinism, misogyny, violence, exploitation or the like have no place. They restate essentially the equal dignity and right of men and women within the marriage compact. It is not a case of master and servant. One is not to ride rough shod over the rights of the other. One is not to be a mere appendage cowered into silence by the sheer might of the other flowing only from that other’s gender. The provision gives equal voice and is meant to actualize the voluntariness of marriage and to hold inviolate the liberty of the marital space. So in decision making; from what shall be had for dinner to how many children (if any) shall be borne, to where the family shall reside or invest-all the way to who shall have custody of children and who shall keep what in the unfortunate event of marital breakdown, the parties are equal in the eyes of the law.Does this marital equality recognized in the Constitution mean that matrimonial property should be divided equally? I do not think so. I take this view while beginning from the premise that all things being equal, and both parties having made equal effort towards the acquisition, preservation or improvement of family property, the process of determining entitlement may lead to a distribution of 50:50 or thereabouts. That is not to say, however, that as a matter of doctrine or principle, equality of parties translates to equal proprietary entitlement.The reality remains that when the ship of marriage hits the rocks, flounders and sinks, the sad, awful business of division and distribution of matrimonial property must be proceeded with on the basis of fairness and conscience, not a romantic clutching on to the 50:50 mantra. It is not a matter of mathematics merely as in the splitting of an orange in two for, as biblical Solomon of old found, justice does not get to be served by simply cutting up a contested object of love, ambition or desire into two equal parts. I would repeat what we said in FN vs. VWN, Nairobi Civil Appeal No. 179 of 2009;“ … a division of the property must be decided after weighing the peculiar circumstances of each case. As was stated by the Court of Appeal of Singapore in Lock Yeng Fun v Chua Hock Chye[2007] SGCA 33;‘It is axiomatic that the division of matrimonial property under Section 112 of the Act is not – and, by its very nature cannot be – e precise mathematical exercise’.”I think that it would be surreal to suppose that the Constitution somehow converts the state of coverture into some sort of laissez-passer, 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.”

31. The Applicant’s contribution seeks to have the listed properties distributed equally. However, the Applicant has deposed to the Respondent being gainfully employed as a civil servant. She has not faulted the Respondent for abnegating his responsibilities and/or contributions towards the well being of their family and towards growth in terms of acquiring properties. The Applicant on the other side was not gainfully employed but nonetheless made both direct and indirect contributions towards the acquisition of the listed properties. On this, is the fact that whilst the Respondent in full time in the office working for gainful employment, the Applicant was also in full time occupation of bearing children, feeding them, taking care of them which would, of course, include ensuring they were in good health and taking them to school, tending to the farm and domestic animals and the general supervision of the home and farm.

32. These tasks performed by the Applicant are sometime regarded are meagre but in real sense are more tedious than the job performed by the white collar man. Furthermore, if the woman was not at home doing all these chores and running the errands, the Respondent would not have had an enabling environment to work in the office. What I am saying is that, with the tedious home chores having a hand to lift, the Respondent had the peace of mind to work in the office regardless that he sent provision to the family of what otherwise could not be gotten from the farm. That further offloaded his financial burden of provision to the family.

33. With this in mind, I do not think that the Applicant performed so little a job that her contribution cannot be regarded as nearly equal to what the man contributed.

34. For the foregoing reason, the Court finds that it would be fair and reasonable to apportion a slightly larger share to the Respondent but also give weight to the heaving responsibility the Applicant offloaded from the Respondent. The ratio is thus apportioned at 40:60% in favour of the Respondent.

Which properties are subject to division? 35. The Honourable Court having perused the record notes that the Applicant has failed to provide proof of ownership and/or proprietary rights over various properties that she wishes to have subjected to division. The consequence of the same is the remains in the dark as to their existence, ownership, the dates when proprietary interests were registered as well as any encumbrances. In this respect, the Court is at risk of making orders which would be in vain and/or otherwise unenforceable.

36. This raises the question as to whether the Applicant has sufficiently demonstrated that the said properties exist and who the proprietors are as deposed.

37. 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. See Section 107 of the Act which states that:“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.”

38. I also refer to The Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14: which describes the legal burden thus:“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.”(16)The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence?”

39. There is also the evidential burden of proof which is captured in Sections 109 and 112 of the Evidence Act as follows:“109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”

40. Notably is that evidence need not only be documentary but can also take other forms. In the case of Carolyne Indasi Mwonyonyo v Kenya Bus Service Ltd (2012) eKLR the Court held as follows:“The Blacks Law Dictionary defines the term evidence as:Any species of proof, or productive matter, legally presented at the trial of an issue by the act of the parties and through the medium of witnesses, records, documents, exhibits, concrete object etc for the purpose of inducting belief in the minds of the court or jury as to their contention…….It is clear from the above definition that evidence can be by way of oral, documents or objects. I do find that the trial court erroneously dismissed the Appellant’s suit for no apparent reasons. The trial court’s suspicions on the injuries sustained by the Appellant blinded its objectivity and corrupted its mind…..The oral evidence was sufficient to find in favour of the Appellant. There is no written rule that injuries suffered by a victim of a road traffic accident must be formed by documentary evidence by way of treatment notes.”

41. The Applicant herein has the duty to prove her case on a balance of probability by adducing evidence to her assertions as was held in Anne Wambui Ndiritu vs. Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 in which the Court of Appeal held that:“As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in sections 109 and 112 of the Act.”

42. Respectively, the Applicant still owes a duty to discharge the burden of proof regardless of whether the Respondent did not participate in the proceedings and the evidence was uncontroverted. The burden becomes even higher when the evidence is uncontroverted. In so holding I borrow from the case of Joseph Macharia Kairu v Kenneth Kimani Muiruri [2021] eKLR where it was held:“This Court has a duty to interrogate and evaluate uncontroverted evidence in order to determine whether the applicant is entitled to the prayers sought. This court has pronounced itself on uncontroverted evidence in Murang’a ELCA No. 16 of 2017:- Gichinga Kibutha v Caroline Nduku [2018] eKLR to the strength that It is not automatic that in instances where the evidence is not controverted, the claimant’s claim shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.The burden of proof is placed on the person alleging the occurrence of an event and where there is no evidence to challenge the allegations, the standard of proof automatically is higher...”

43. Additionally, the Court of Appeal’s position in Daniel Toroitich Arap Moi vs Mwangi Stephen Muriithi & another [2014] eKLR espo

44. Uses the correct legal position that:“It is a firmly settled procedure that even where a defendant has not denied the claim by filing of defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.”

45. The Applicant has indeed evidence to the effect that she was married to the Respondent and that marriage has since been dissolved. There is a decree to the said effect from Engineer Law Courts.

46. It is pursuant to the said dissolution that the Applicant has approached this Court to have her share of the matrimonial property most of which she avers is in the custody of the Respondent and/or registered in the name of the Respondent.

47. I have had the benefit of perusing the Applicant’s Originating Summons as well as the Supporting Affidavit. The Applicant has not availed on record any evidence to support her averments other than the decree dissolving the marriage between the Respondent and herself. There has been no evidence as to who is the registered proprietor of the three land parcels mentioned by the Applicant. The Applicant wishing the Court to believe the existence of the said parcels would have gone a step ahead to avail evidence with respect to the said three parcels of land averred to have been acquired during the subsistence of the marriage. Further, such evidence would not only have aided the Court in establishing that the said parcels existed but also brought out who the registered proprietor is as well as when such person became the registered proprietor.

48. In so far as other properties which proprietary interest can be registered, the Applicant has failed to meet the evidentiary burden of proof. She claims the existence of a motor vehicle registration KBA XXX as well as a motorcycle of unknown registration. It is the view of this Court that a simple search would have shed light as to the ownership of the foregoing moveable properties.

49. The Applicant has failed to sufficiently demonstrate any difficulties and or challenges in obtaining the documents in proof of existence of the foregoing properties and/or the proprietary interests with respect to the same. It is only alleged that the searches could not be conducted as the original documents of registration are with the Respondent who has declined to issue her with the same. Additionally, the Applicant avers that she solely purchased one of the three land parcels subject of the suit but has also failed to give any documents as to ownership of the same which would reasonably be in her custody.

50. Section 34 of the Land Registration Act No. 3 of 2012 provides as follows with respect to obtaining official searches:“34. Searches and copiesA person who requires an official search in respect of any parcel, shall be entitled to receive particulars of the subsisting entries in the register, certified copies of any document, the cadastral map, or plan filed in the registry upon payment of the prescribed fee.”

51. The Applicant has not demonstrated any attempt made at the lands’ registry to conduct an official search prior to the institution of the suit. Additionally, no directives were sought to have the Court issue an order to the effect that the Land Registrar provides the Applicant with an official search for purposes of the suit.

52. The Applicant further claims an equal share of the of the expected retirement benefits of the Respondent which she avers to be in the region of Kshs 1,400,000. 00 as the Respondent had retired sometime in the year 2020 from the Forestry Department. I find that no evidence has been presented before the Court to the effect that the Respondent was employed by the said entity, has since retired and is expecting benefits and/or the said benefits have already been advanced in the sums stated.

53. In view of the foregoing, the Court exempts items (a), (b), (c), (d), (e) and (s) in the schedule of the properties from being subject to division as matrimonial property.

Disposition 54. For all the foregoing reasons, I am satisfied that the Applicant’s Originating Summons is partially merited and make the following orders –a.That the properties itemized as (a), (b), (c), (d), (e) and (s) in the schedule constituting matrimonial property are exempt from distribution.b.That the balance of the properties shall be distributed between the Applicant and the Respondent in the ratio of 40:60%. In this respect, the parties can agree who takes what property failing which the properties can be sold and the proceeds of the sale divided in this ratio.c.Thatin view of the nature of the matter, each party shall bear its own costs.

55. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 19TH DAY OF JULY, 2022. G W NGENYE-MACHARIAJUDGEIn the presence of:…………………………………….. for the Applicant.………………………….………… for the Respondent.Matrimonial Cause No. E003 of 2021 (OS) Page 9 of 9