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JudgmentBENTER ANYANGO OWEJE VS PATRICK OUMA WANDEWE9 min read

BENTER ANYANGO OWEJE VS PATRICK OUMA WANDEWE

High Court at Kisumu High Court · · M.S.Shariff

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CIVIL SUIT NO. E001 OF 2023 (OS)

BENTER ANYANGO OWEJE…………………………………APPLICANT

VERSUS

PATRICK OUMA WANDEWE……………………………...RESPONDENT

                             JUDGMENT

  1. The Applicant filed an Originating Summons dated 26th January 2023, brought under Order 37, Rules 1, 2, 12, and 14 of the Civil Procedure Rules 2010, as well as Section 1A, 1B, 3, and 3A of the Civil Procedure Act, Section 17 of the Married Women's Property Act, and all enabling provisions of the law. Through this summons, she seeks the following orders:
        1. A declaration that the property known as Kisumu/FortTernan/1205 with all buildings and development thereon acquired and developed by the joint funds and efforts of the applicant and Respondent during their marriage and registered in the name of the Respondent are jointly owned by the Applicant and Respondent.
        2. An order by this honourable court be made declaring that the Applicant owns 50% or such higher proportion of the property aforementioned, is held by the Respondent in trust and for the beneficial interest of the Applicant and the two issues of the marriage namely Joseph Oyugi and Rosemelda Awuor Ouma.
        3. A declaration that the property listed as Kisumu/Fort Ternan/1205 measuring about 0.4 hectares constitute matrimonial property partly owned by the Applicant and the Respondent herein and held in trust by the Applicant and the issues of the marriage, Joseph Herman Oyugi and Rosemelda Awuor Ouma.
        4. A declaration that the said property ought to be shared equally and that the Applicant be apportioned the portion of land where her matrimonial house rests.
        5. A declaration that the Deputy Registrar of this honourable court ought to be powered to sign all necessary documents, to ensure the subdivision and sharing and transfer of the aforementioned matrimonial property to the Applicant and the Respondent.
        6. That this honourable court do give a permanent injunction to restrain the Respondent, his agents, servants, nominees and or any other such persons from trespassing, evicting, locking out the Applicant from her house situated on the matrimonial property on plot number Kisumu/Fort Ternan/1205.
        7. Costs be provided for.  
  2. In support of the prayers sought, the Petitioner argued that the Respondent was taking steps to evict her from the matrimonial home, an action that would render her destitute. She noted that in January 2023, the Respondent sent his younger brother, Nyainda, to lock the matrimonial home, claiming that as a divorcee, she should vacate the property.
  3. Additionally, the Applicant emphasized that the suit property was acquired during the marriage and that it was being held in trust for her and their two children, following the dissolution of their marriage.
  4. In response, the Respondent swore an affidavit dated 14th August 2023, denying the claims. He stated that the Applicant had deserted the matrimonial home in 2005 and had only returned in 2022.
  5. The Respondent contended that the Applicant’s sudden return caused him considerable distress, prompting him to file for divorce.
  6. He further asserted that he had bought and developed the suit property single-handedly during the Applicant’s absence, and therefore, she was not entitled to any claim over it. He also asserted that the Applicant was not residing on the property, making her claims of being locked out baseless.
  7. The Respondent also pointed out that one of their children, Rosemelda, had passed away, while the other, Joseph Oyugi, worked and lived elsewhere, having not visited the matrimonial home since leaving with the Petitioner in 2005.
  8. Finally, the Respondent stated that he had remarried, and allowing the Applicant back into the matrimonial home would be detrimental to his health due to the stress she had previously caused.
  9. On 16th of September 2024 when the matter was mentioned in court counsel for the Applicant indicated that they had filed written submissions, while counsel for the Respondent stated that they would be relying on the Replying Affidavit.

APPLICANT’S SUBMISSIONS

  1. The Applicant reiterated that she made significant contributions to both the upkeep of the children and the development of the suit property, asserting that she even had a house on the land. She identifies the following issues for determination:
        1. Whether Land Parcel No. Kisumu/Fort T ernan/1205 constitutes matrimonial property.
        2. Whether she contributed towards the acquisition and development of the matrimonial property.
        3. Whether she is entitled to ¾ share or such higher portion of the matrimonial property.
  2. Regarding the first issue, the Applicant asserts that Kisumu/Fort Ternan/1205 is matrimonial property, having been acquired during the marriage. She highlights that the land was purchased on 10th February 2017, while the divorce was finalized on 8th July 2021. She further points to the marriage certificate, which shows that the marriage was conducted under the Marriage Act, as well as Section 6 of the Matrimonial Property Act, 2013, which deems property acquired during the marriage as matrimonial, unless otherwise agreed upon at the inception of the marriage.
  3. Additionally, the Applicant submits that the Respondent did not provide evidence contradicting the fact that the suit property was their matrimonial home.
  4. Concerning her contribution to the matrimonial property, the Applicant submits that she made significant contributions to both the purchase of the land and the furnishing of the house. She further contends that she took on the responsibility of paying the children’s school fees and caring for their general upbringing, while the Respondent was involved with another woman.
  5. Regarding her entitlement to a share of the matrimonial property, the Applicant submits that she is entitled to at least 70%, based on her non-monetary contributions, which include childcare, domestic work, home management, and companionship. She cites the case of NWM v. KNM [2014] eKLR, where the court considered a woman’s non-monetary contributions in the distribution of matrimonial property.
  6. In conclusion, the Applicant asserts that she has proven her case to the required standard and urges the court to grant the relief sought in the Originating Summons.

ANALYSIS AND DETERMINATION

  1. After thoroughly reviewing the Originating Summons, the Replying Affidavit, and the written submissions, it is undisputed that the Applicant and Respondent were married until their divorce on 8th July 2021. Additionally, it is not contested that the suit property was purchased during the course of the marriage, and the Respondent has not denied this fact.
  2. The case reveals that, by the time the property was acquired, the relationship between the parties was already strained, which likely led the Respondent to later file for divorce.
  3. Given the above, the following issues arise for determination:
        1. Whether Land Parcel No. Kisumu/Fortternan/1205 constitutes matrimonial property.
        2. Whether the Applicant contributed to the acquisition and development of the matrimonial property.
        3. Whether the Applicant is entitled to ¾ share or such higher portion of the matrimonial property.

Whether land Parcel No. Kisumu/Fortternan/1205 constitutes matrimonial property. 

  1. Section 6 of the Matrimonial Property Act provides clear guidance on what constitutes matrimonial property. It defines it as:
  2. For the purposes of this Act, matrimonial property means—
          1. the matrimonial home or homes;
          2. household goods and effects in the matrimonial home or homes; or
          3. any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.
  3. Additionally, in the case of  TMW vs FMC (2018) e KLR the court stated as follows regarding matrimonial property:

“It must have been acquired during the subsistence of marriage unless agreed by both parties that such property will not form part of the matrimonial property. The burden of proof in law lies with the party alleging that such and such property indeed was acquired during the subsistence of the marriage and therefore constitutes matrimonial property.”

  1. The exact date of the marriage between the Applicant and the Respondent is somewhat unclear. The Applicant states the marriage occurred on 1st December 1997, attaching a marriage certificate, while the Respondent claims it was in 1992. This court will go with the date of 1st December 1997, as confirmed by the marriage certificate.
  2. The Respondent’s replying affidavit includes a sale agreement dated 20th November 1998, evidencing the cash payment for the suit property, along with a title deed indicating that the property is registered solely in his name.
  3. Given that the property was acquired during the marriage, this court concludes that Land Parcel No. Kisumu/Fortternan/1205 constitutes matrimonial property.

Whether the Applicant contributed towards the acquisition and development of the matrimonial property.

  1. As regards contribution the principle in the landmark case of Peter Mburu Echaria v Priscilla Njeri Echaria [2007] eKLR as upheld in the Supreme Court by JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae) (Petition 11 of 2020) [2023] KESC 4 (KLR) (Family) (27 January 2023) (Judgment), remains significant.
  2. The finding in the Echaria case established that a spouse does not automatically acquire a beneficial interest in matrimonial property simply by virtue of marriage. Rather, specific contributions must be demonstrated for entitlement to a share of the property.
  3. Furthermore, the Supreme Court in the JOO v MBO case (supra) emphasized that the apportionment and division of matrimonial property should be based on the proof of contribution, with the extent of that contribution being assessed on a case-by-case basis.
  4. In this case, the Applicant has not provided concrete evidence of her contribution to the acquisition of the suit property. Although she has attached a copy of the land search certificate and land records, these documents do not show her involvement in the property’s purchase.
  5. It is, however, established law that non-monetary contributions are also recognized. In the case of JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae) (Petition 11 of 2020) [2023] KESC 4 (KLR) (Family) (27 January 2023) (Judgment), the Supreme Court held as follows:

“Any substantial contribution by a party to a marriage that led to the acquisition of matrimonial property, even though such contribution was indirect, but had in one way or another, enabled the acquisition of such property amounted to a significant contribution. Such direct or indirect acts included:

Paying part of the purchase price of the matrimonial property.

Contributing regularly to the monthly payments in the acquisition of such property.

Making a substantial financial contribution to the family expenses to enable the mortgage instalments to be paid.

Contribution to the running of and welfare of the home and easing the burden of the spouse paying for the property.

Caring for children and the family at large as the other spouse worked to earn money to pay for the property.

  1. Applying these principles to the case at hand, the only contribution the Applicant can establish is in the form of childcare. She has provided receipts showing that she paid school fees and medical expenses for the children during the marriage.
  2. The Respondent, on the other hand, denies the Applicant’s allegations of contribution, asserting that he solely developed and brought the suit property to its current state.
  3. I have inspected the Respondent’s bank and loan statements and I am indeed satisfied that his contribution was significant. Additionally, I have also seen the receipts he attached as evidence of payment of school fees.
  4. By all indications it is evident that both parties participated in equal measure towards childcare.

Whether the Applicant is entitled to ¾ share or such higher portion of the matrimonial property.

  1. The Respondent strongly denies that the Applicant is entitled to any substantial share of the property.
  2. In determining the Applicant’s entitlement, I have considered relevant statutory provisions, including Section 7 of the Matrimonial Property Act, which dictates that matrimonial property should be divided according to each spouse's contribution upon divorce, and Article 45(3) of the Constitution, which affirms equal rights for both parties at the time of marriage, during marriage, and at its dissolution.
  3. I have carefully examined the evidence provided by both parties. I previously found that the Applicant did not contribute to the acquisition of the matrimonial property, though both parties contributed equally to the children’s upkeep.
  4. In my assessment, the Applicant's non-monetary contribution amounts to 10% of the matrimonial property. 
  5. Therefore, the court makes the following orders.
      1. The property known as Kisumu/Fortternan/1205 is matrimonial property, with ownership divided in the ratio of 90% in favor of the Respondent and 10% in favor of the Applicant.
      2. The parties are ordered to do a joint valuation of the property within 60 days from the date hereof. and the respondent to thereafter pay off the applicant, the 10% value of the matrimonial property.
        1. A permanent injunction is hereby issued against the respondent, restraining him either by himself, his servants, his employees, his agents, his servants, his nominees and or any other such persons acting on his authority from selling, mortgaging, evicting, locking out the Applicant from the parties’ matrimonial house situated on the on plot number Kisumu/Fort Ternan/1205 until the respondent pays off the applicant an aggregate 10% the value of the said property.
      3. Mention on 8.4.2025 to confirm compliance.

Delivered, signed and date at Bungoma this 7th day of February 2025.

                               MWANAISHA S SHARIFF

                                                        JUDGE


    BENTER ANYANGO OWEJE VS PATRICK OUMA WANDEWE BENTER ANYANGO OWEJE VS PATRICK OUMA WANDEWE