[2022] KEHC 13401 (KLR)

T.J.S v N.R.S (Civil Case 69 of 2019) [2022] KEHC 13401 (KLR) (Family) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13401 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Case 69 of 2019

AO Muchelule, J

October 6, 2022

IN THE MATTER OF THE MATRIMONIAL PROPERTY ACT

Between

TJ S

Applicant

and

NRS

Respondent

Judgment

1. The applicant TJS and the respondent NRS formally got married on May 18, 2005, although the respondent stated that cohabitation begun in 1999. They have a child MNS, a daughter, who was born on November 15, 2017. The marriage between them failed, was dissolved and decree absolute issued on January 2, 2017 in divorce cause No 699 of 2015 at Milimani Commercial Courts in Nairobi.

2. The present dispute was filed by the applicant on October 28, 2019 by way of originating summons under order 37 of the Civil Procedure Rulesand under the Matrimonial Property Act for the following orders:-“1)That the respondent do return or otherwise cause to be handed over to the applicant the applicant’s personal effects and property as more particularly itemized below:-a.the title deeds in respect of Ngong/Ngong/45925;b.the title deeds in respect of Ngong/Ngong/45924;c.the title deeds in respect of Ngong/Ngong/44571;d.the plaintiff’s personal documents including;i.pin certificateii.birth certificateiii.marriage certificatee.Log book in respect of motor vehicle registration number xxx;f.other miscellaneous documents and household items, such as linens, crockery and household utensils either removed from the matrimonial home prior to separation or kept by the respondent thereafter by denying the applicant access to his own property;2)That the household items (matrimonial property) be divided between the parties as more particularly itemized in the schedule to the affidavit;3)That the respondent be ordered to leave the applicant’s property LR 195/111; and4)That costs be provided for.”

3. The applicant’s case was that the respondent and/or her advocate were in possession of his original title deeds relating to:-a.Ngong/Ngong/45925;b.Ngong/Ngong/45924; andc.Ngong/Ngong/44571. And they had his pin-certificate, birth certificate, marriage certificate, logbook to vehicle xxxx and other miscellaneous documents and the household effects such as samsung tv, meru oak desk, hardwood dining table, various artwork, linen, crockery and so on. He stated that he was the owner of all these properties and items having bought them without the respondent’s contribution, and therefore he wanted an order for them to be returned to him by the respondent who had refused with them upon the dissolution of the marriage. He further stated that there was property LR No 195/111 (original No 195/26/4) in Karen which he had inherited, and which did not form part of their matrimonial property andwhich the respondent had continued to illegally occupy even after their marriage had been dissolved. He wanted possession to be given to him.

4. The respondent opposed the summons and filed a response to state that both her and the applicant were employed. She was a graduate in physical therapy but worked as manager with [particulars withheld] and the applicant worked for Amiran (K) Ltd. Her case was that, yes, she held the title deeds to Ngong/Ngong/45925, 45924 and 44571 but that these were matrimonial properties acquired during their marriage and registered in the applicant’s name but that this was in trust for her to the extent of 50% in each. She was holding the title deeds until her claim to the property was determined. She agreed that she held his pin certificate and birth certificate and said that she was willing to release them. As for the marriage certificate, she stated that it was their joint document and none of them had a superior claim to it. And for the vehicle, her case was that this was matrimonial property used as family car before the applicant took it away.

5. LR No 195/III in Karen was 2. 2 acres, she stated. Her case was that although registered in the applicant’s name it was matrimonial property on which she and her daughter had lived for all the years, and if she vacated they would have nowhere to live. She stated that on the property, she and the applicant had put up a bedsitter which the applicant had rented out. The property had a 4 bedroomed main house that was vacant, a 2 bedroomed unit where applicant’s father lives and a house in which she lives with the child. She claimed that she had a 50% share of the value of the Karen property, as she had spent Kshs 8,000,000/= to put up the house on the property where she lives. Further, she stated that the family had two other properties: a home at Tiwi, south coast where the applicant’s mother stays, and a home on Champagne Ridge LR No KJD/Olchoro-Onyore parcel No 8268. She stated that the two were also matrimonial properties whose share she sought. As for the household goods items, she stated that they were part of the items in the house where she stays with the child and could not be shared. Lastly, she stated that the couple had a joint account that was used to pay for their upkeep and house maintenance during the marriage, and which they used to pay staff salaries, fuel costs, phone credit, internet, savings for the daughter and so on. She said that her contribution to the acquisition of the family property was both monetary and non-monetary and was equal to that of the applicant.

6. The applicant stated, in response to the replying affidavit, that Tiwi property belonged to his mother and him as tenants in common and was not matrimonial property and that the Champagne Ridge property belonged to him and his mother as tenants in common, and that the respondent had nothing to do with them. His mother is PAS. She swore an affidavit.

7. The applicant and the respondent testified, and so did the applicant’s mother. I have considered what each said in the respective affidavits and what they told the court orally.

8. It is material to point out that the only property subject to the dispute shall be those in the originating summons filed by the applicant. The Tiwi property and the Champagne Ridge properties were not in the originating summons, and the respondent did not have a cross-originating summons.

9. It would not appear to be in dispute that LR No 195/III at Karen belonged to the applicant’s grandmother JCFB. In a will dated November 28, 2002 she bequeathed it to the applicant with a life occupancy of his mother PAS. In a codicil dated June 22, 2006 the life occupancy was removed. The executors of the will were Antony Fredrick Gross and Robert William Milvain Watson. The grant was issued to them on February 14, 2007, and confirmed on March 4, 2008. On May 14, 2010 the property was by vesting assent conveyed to the applicant.

10. When the applicant and the respondent got married in 2005, the applicant was living on the property with his family. The respondent joined him here. When the marriage ran into trouble about 2015 the applicant moved out of the house they were staying in on the property. She was left here with the child. They stay here to date. The property has a main house that is vacant, a 2 bedroomed cottage in which the applicant’s father stays and a two bedroomed cottage that formed the couple’s matrimonial property, with extension that was made to it subsequent to the marriage. Whatever the dispute regarding who paid for the extension, it is common ground that during the existence of the marriage there was improvement at the instance of the couple to LR No 195/III. It is also common ground that when the deceased’s grandmother died on July 3, 2006, the couple were about one year into their marriage and were living here. The property was willed to the applicant. Section 5 of the Matrimonial Property Act, 2013 provides that –“5. Subject to section 6, the interest of any person in any movable or movable property acquired or inherited before marriage shall not form part of matrimonial property.”

11. Under section 80(1) of the Law of Succession Act (cap 160), the will took effect upon the death of the testator on July 23, 2006. By the time, the couple had set up a matrimonial home on the property. The improvement that was done on the property qualified it as matrimonial property.

12. The respondent testified that she was entitled to 50% of the property LR No 195/III in Karen. It is notable that the property is 2. 2 acres and had a 4 bedroomed main house when the respondent joined the applicant to begin living there. They constructed a 2 bedroomed cottage in which they stayed. There was another cottage in which the applicant’s father stays. The respondent stated that she spent Kshs 8,000,000/= to build an extension to their cottage. She did not show she actually spent the money, and did not say where it came from. However, at the time of the extension the couple operated a joint account from which monies came to ran the family and their developments. Each of them worked and had an income. I consider that contribution may be monetary and may also be non-monetary. I find that the respondent contributed to the improvement of this property which the applicant inherited from his grandmother. I determine that the contribution was 15% of the value of the property.

13. The applicant admitted that parcels Ngong/Ngong/45925, 45924 and 4457 were each acquired in the cause of the marriage and registered in the name of the applicant. He stated that he alone raised the money that bought the properties. The couple had a joint account, but the applicant stated that each party still operated own account and saved own money. The property, he said, costs Kshs 2,520,000/=. He produced evidence of the withdrawal. The respondent was able to show that her direct contribution was Kshs 100,000/=. The rest of the contribution, she said, was non-monetary. She managed the home, took care of the child and so on. She provided companionship. It is material that the couple each had an income which went to the running of the home. Under section 14(a) of the Matrimonial Property Act, where during marriage a property that is matrimonial is acquired and registered in the name of one spouse there is a rebuttable presumption that it is held in trust for the other spouse.

14. I find that the applicant made the substantial direct contribution that enabled the acquisition of the three properties but also find that the respondent, over and above the Kshs 100,000/= direct contribution, managed the home and provided companionship to the applicant and created the environment that was conducive for the applicant to work and thrive. Further, the joint account into which the income of the respective party went to run the home enabled the applicant to raise the money he used to buy the three properties. I determine that the respondent’s contribution to the acquisition of each of the three properties was 30%.

15. Vehicle xxxxx was bought by the applicant in 2010 from his employer Ocean Agriculture (EA) Ltd for Kshs 400,000/=. The money was deducted from his salary. When the couple went apart he went with the vehicle. This was matrimonial property. The respondent holds onto its logbook.

16. There are household goods, including beds, tv, desk, dining table that applicant claims. Surely, when the applicant left the matrimonial home to his then wife and child it was expected the he leaves them for their use. They are matrimonial property, but household goods that the respondent should retain and continue to use.

17. In conclusion, I declare that:-a.the property LR No 195/III at Karen is matrimonial property and that the respondent is entitled to 15% of its value; that the property shall be valued and the applicant shall pay to the respondent 15% of the value, which value can be recovered summarily as a civil debt;b.properties Ngong/Ngong/45925, 45924 and 4471 are matrimonial properties; that the applicant is entitled to 70% of each property and the respondent entitled to 30% of each; and the properties shall be valued and the respondent pays to the respondent 30% of the value of each; failing which they will be sold and the proceeds shared at 70%:30% in favour of the applicant.c.the applicant shall keep vehicle xxxxx;d.the respondent shall keep the household goods; ande.the respondent shall immediately surrender the logbook, pin and birth certificate to the applicant.

18. Each party shall bear own costs.

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 6THDAY OF OCTOBER 2022A.O. MUCHELULEJUDGEHCCC NO. 69 OF 2019 JUDGMENT Page 3