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JudgmentEUNICE NJERI KARIITHI VS WANJAU WA KABECHA21 min read

EUNICE NJERI KARIITHI VS WANJAU WA KABECHA

High Court at Kajiado High Court · · Stella Mutuku

THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAJIADO

MATRIMONIAL PROPERTY CAUSE  NO. E001 OF 2023

IN THE MATTER OF MATRIMONIAL PROPERTY ACT 2013

BETWEEN

E.N.K ………………………..……..………………….……………………..APPLICANT

Versus

W.W.K ……………….………………………………..……................RESPONDENT

JUDGMENT

The Claim

  1. This Originating Summons is brought pursuant to Sections 2, 6, 7, 9 and 14 of the Matrimonial Property Act 2013, Rules 5 of the Matrimonial Property Rules 2022 and all other enabling provisions of the law. In it the Applicant, seeks against the Respondent for the following orders:
  2. That a declaration do issue that the matrimonial property namely LR No. Ngong/Ngong/1821 and all the resulting subdivisions being LR Nos Ngong/Ngong/31109, Ngong/Ngong/31110, Ngong/Ngong/31111, Ngong/Ngong/31112, Ngong/Ngong/31113 and Ngong/Ngong/31114 registered in the name of the Respondent are matrimonial property owned jointly by the Applicant and the Respondent and/or are held beneficially and in trust for the Applicant.
  3. That a declaration do issue that the matrimonial home together with the buildings and improvements thereon erected on Titles namely LR Nos Ngong/Ngong/31109, Ngong/Ngong/31110, Ngong/Ngong/31111, Ngong/Ngong/31112, Ngong/Ngong/31113 and Ngong/Ngong/31114 form part of matrimonial property between the parties herein.
  4. That this Honourable Court be pleased to divide the matrimonial home together with the buildings and improvements thereon erected on Titles namely Ngong/Ngong/31109, Ngong/Ngong/31110, Ngong/Ngong/31111, Ngong/Ngong/31112, Ngong/Ngong/31113 and Ngong/Ngong/31114 at the ratio of 80:20% in favour of the Applicant and/or according to each party.
  5. That the Deputy Registrar be empowered to sign any transfer documents that the Respondent may refuse to sign.
  6. That this Honourable Court be pleased to make such orders as will meet the ends of justice.
  7. That the Respondent be condemned to pay costs of this suit.
  8. The Originating Summons was supported by an Affidavit sworn by the Applicant dated 9th January, 2023 in which she has deposed that she got married to the Respondent under Kikuyu customary law in 1982. That their union was blessed with three children: M.K born in September 1978; W.W born in 1933 and K.W born in January 1988, now deceased. She has stated that their marriage was dissolved on 28th February, 2022.
  9. She has stated that during the subsistence of the marriage they jointly acquired LR No Ngong/Ngong/8121, developed it and set up their matrimonial home; that the Respondent subdivided the said land into 6 parcels without her knowledge and consent and that she cautioned the property to prevent the Respondent from selling it.
  10. She has stated that she was employed as an Industrial Development Officer at the Ministry of Commerce and Industry; that she had a savings account at HFCK and was saving towards buying their home; that she identified the property Ngong/Ngong/8121 and agreed with the Respondent that the property would be registered in both their names but the Respondent registered the property in his name.
  11. She stated that they began construction of their home in 1987; that she would withdraw money from her savings to facilitate the construction of the home; that in March, 1989 they took out a loan on the strength of her credit for the continued construction of the home; that in July 1989 they were granted the loan of Kshs.342,000 through a charge over the property at Housing Finance Company Kenya in the Respondents name with her as the guarantor and that she took on other family responsibilities while the Respondent paid off the loan as it was in his name.
  12. She stated that she supported the completion of the house by taking out loans, rearing chicken and dairy farming and that the Respondent forced her out of her matrimonial home as he made the living conditions unbearable for her.
  13. The Respondent filed a Replying Affidavit dated 23rd February, 2023. In which he has deposed that he solely purchased L.R Ngong/Ngong/8121 vide a sale agreement dated 27th June, 1986 and that the purchase price was Kshs. 60,000 which he raised solely from his savings while he was studying for his masters in the UK from 1984 to 1985.
  14. He denied any agreement to have the property registered in both their names. He denied that the Applicant contributed through either her savings or loans to the purchase of the property. He denied that the construction of the home started in 1987 as alleged by the Applicant and stated that the owner of the said land was still in occupation of it and he had to seek legal redress to have him vacate in 1988.
  15. He further deposed that in 1989 he applied for a loan at Housing Finance Company of Kenya for Kshs. 342,000 which was secured by a charge over property LR No Ngong/Ngong/8121; that the loan was repaid by him from deductions from his salary for a period of 15 years; that he was also taking care of other responsibilities such as school fees, purchase of food and other amenities and that in 1990 he fenced the property and built sheds for cattle and chicken and built servant quarters on the property.
  16. He has stated that in 1991 he started a farming project on the property for purposes of rearing chicken, cattle and goats; that in 2001 he took out a loan of Kshs. 500,000/- from Barclays Bank to enable him pay school fees for his son; that he subdivided land LR No Ngong/Ngong/8121 for purposes of preserving it as he feared that the erratic interest rates on the loan would cause him to loose his home and that other than the suit property he purchased two more plots in Oloosirkon in 2006 which are not jointly registered. It was his case that this application lacks merit and is an abuse of court process.
  17. On 15th April, 2023 the Applicant filed a further affidavit where she stated that in 1981 she started a business selling clothes and that when the Respondent left for UK she would send him funds to purchase the clothes and send to her to sell. She stated that she had annexed letters to show that the Respondent’s allowance was not much and reiterated that the Respondent mismanaged the funds from the loan and she had to purchase the rest of the finishing materials for their home. She stated that the Respondent built a few rental units on the property and he solely benefited from the income over the years. She urged this court to take this into consideration while determining this matter.
  18. The Respondent filed a supplementary affidavit dated 27th October, 2023 in which he reiterated the contents of the Replying Affidavit. 

Evidence

  1. This matter was canvassed through oral evidence with both the Applicant and the Respondent testifying in support of their respective case. The Applicant reiterated the contents of her Supporting Affidavit which she relied on together with her Further Affidavit and Witness Statement dated 15th April, 2023. It was her case that the suit property LR No. Ngong/Ngong/8121 was sold at Kshs. 120,000; that she paid deposit for the land; that she contributed to the acquisition of the property directly and indirectly and denied the allegations by the Respondent that he was the only one who contributed to the purchase and development of the property. She testified that she used to withdraw the money and pay the workers. She annexed documents showing that she withdrew money from her savings account.
  2. It was her case that she contributed more than 50% towards the purchase and development of the property. She claimed that the Respondent locked her out of the house and that she has not been able to access her property.
  3. On cross examination she stated that they paid the purchase price of the suit property in instalment and that the first instalment was Kshs 10,000/- though she did not have documents to support this.
  4. The Respondent’s testimony was majorly a reiteration of his Replying Affidavit. He stated that the Applicant was aware that he was subdividing the suit property in 2003 and denied the allegations by the Applicant that she knew of the subdivision in 2007. On cross examination he stated that they both shared family financial responsibilities.

Submissions

  1. The Applicant’s submissions are dated 20th May, 2024. She has raised 3 issues for determination:
  2. Whether the property namely LR No Ngong/Ngong/8121 and all the resulting subdivisions being LR Nos Ngong/Ngong/31109, Ngong/Ngong/31110, Ngong/Ngong/31111, Ngong/Ngong/31112, Ngong/Ngong/31113 and Ngong/Ngong/31114 constitute the parties matrimonial property.
  3. Whether the claimant contributed to the acquisition and development of the suit properties.
  4. Whether the claimant is entitled to an equal or such higher proportion of the matrimonial properties.
  5. On the first issue she submitted that the property was acquired during the subsistence of the marriage; that the parties got married in 1982 and acquired the property in 1986 and that the property was purchased with the aim of setting up the matrimonial home. The Applicant cited Section 6 of the Matrimonial Property Act on the definition of matrimonial property to mean:
  6. the matrimonial home or homes;
  7. household goods and effects in the matrimonial home or homes; or
  8. any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.
  9. On the second issue she submitted that she contributed both directly and indirectly to the acquisition of the suit properties; that she was employed and that she had a salary which she used to assist in the acquisition and development of the matrimonial property; that she supported the home financially as shared financial both parties shared responsibilities; that even when the Respondent was away in the UK for his PHD she would send him money obtained from her clothes and mini mart business. She submitted that she contributed indirectly by taking care of the children and the household.
  10. She relied on section 2 of the Matrimonial Property Act on the definition of what amounts to “contribution” to mean monetary and non-monetary contribution and includes:
  11. domestic work and management of the matrimonial home’
  12. child care;
  13. companionship;
  14. management of family business or property; and
  15. farm work.
  16. She relied on the Supreme Court in petition 11 of 2020 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) where it was held that:

“We must note that, in a marriage, the general assumption is that both spouses share everything, and on the face of it, both parties contribute towards the home or family, in one way or another, to whichever extent, however big or small. Again, and further to this, both spouses may also work and earn income, which inevitably, at most instances, always ends up being spent on the family unit. It may be the whole income, or a substantial part of it, but ultimately, a percentage of it goes into the family.”

  1. The Applicant also relied on MNH -vs- FHM (2018)eKLR where it was held that:

“Additionally, during the Defendant’s sojourn in the United States, it is the Plaintiffs claim that she undertook management of and development of one of the suit properties. This is uncontroverted by the Defendant.  Moreover, the union has been blessed with two issues, who from the evidence are now young adults with a bright future ahead of them. This is clear evidence of childcare. As if this is not enough, it is uncontroverted that the Plaintiff engaged in farm work, in the form of growing vegetables in greenhouses. The gist of the foregoing is that, on the balance of probability, the Plaintiff indeed made substantial non-monetary contributions in the course of the coverture. She would, in my opinion, be entitled to a portion of the matrimonial properties upon dissolution of the marriage.”

  1. On the third issue, the Applicant submitted that she has established that she made extensive financial contribution and hence entitled to a much higher portion of the suit properties. She relied on Article 45(3) of the Constitution and section 7 of the Matrimonial Property Act and the above cited Supreme Court Petition 11 of 2020 where the court relied on Kishindo -vs- Kishindo [2015] MWHC 447, Malawian case where it was held that:

“There is no blue print of fairness that fits all. Fairness depends on circumstances on each case. One cannot successfully list all the circumstances. Consequently, decisions of this should be understood as not laying general or broad principles. Each decision is the courts’ attempt to be fair in a particular situation…“Applying all these principles to this case, the correct order in the circumstances is that all property is up to be shared fairly subject to equality. Equality here implies that both husband and wife come on equal footing to property which, from the reasoning above, is jointly held between them and, in respect of the houses, irrespective of the motivation, the mode of acquisition or in whose name it is...”

  1. The Respondent’s submissions are dated 16th May 2024. He has raised 3 issues for determination being:
  2. Whether LR No Ngong/Ngong/8121 and all the resulting subdivisions being LR Nos Ngong/Ngong/31109, Ngong/Ngong/31110, Ngong/Ngong/31111, Ngong/Ngong/31112, Ngong/Ngong/31113 and Ngong/Ngong/31114 constitute the matrimonial property owned jointly by the Applicant and the Respondent.
  3. Whether LR No Ngong/Ngong/8121 and all the resulting subdivisions being LR Nos Ngong/Ngong/31109, Ngong/Ngong/31110, Ngong/Ngong/31111, Ngong/Ngong/31112, Ngong/Ngong/31113 and Ngong/Ngong/31114 together with the buildings and improvements thereon be divided in the ratio of 80:20% in favour of the Applicant?
  4. Who should bear the costs?
  5. On the first issue the Respondent cited section 6 and section 7 of the Matrimonial Property Act. He submitted that he proved that he bought the suit property solely and that the same was registered in his name; that the initial cost of Kshs 60,000/- was paid by him from his savings obtained from his scholarship while studying for his Master’s degree in the United Kingdom from 1984 to 1985 and reiterated how he obtained a loan to develop the suit property and how he repaid the loan solely from the deductions from his salary.
  6. He stated that ownership in matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition and that he has demonstrated that the acquisition and development of the suit property by the Applicant amounts to near nil. He relied on the case of ENN -vs- SNK (2021) eKLR.
  7. He submitted that under section 107 of the Evidence Act, he who alleges must prove and relied on Evans Otieno Nyakwana -vs- Cleophas Bwana Ongaro[2015]eKLR where it was held  that:

“As a general proposition the legal burden of proof lies upon a party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107(1) of the Evidence Act.’’

  1. He submitted that the has not provide documentary evidence to demonstrate that she jointly bought and developed the suit property with the Respondent. He submitted that the allegations by the Applicant that they had agreed that the suit property be registered in both their names is not true and that it is not true that that the Applicant would withdraw money from her account and give him for the development of the suit property.

Analysis and determination

  1. I have taken time to carefully read and understand the pleadings, the evidence tendered in court and submissions of the parties. To my mind, the following issues arise from this Cause for determination:
  2. Whether the property herein amounts to matrimonial property.
  3. Whether the Applicant contributed towards the acquisition and the development of the matrimonial properties.
  4. Whether the Applicant is entitled to an equal share or such higher proportion of the matrimonial properties.

Whether suit property amounts to matrimonial property

  1. Matrimonial property is defined under Section 6 of the Matrimonial Property Act as follows:

(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.

  1. Any party claiming share of matrimonial property must demonstrate that what he/she is claiming fits the description above. In this instant cause, the Applicant is claiming properties that fit the definition above. 
  2. I have considered the evidence of the parties herein. I find no dispute that the Applicant and the Respondent married under Kikuyu Customary Law in 1982, and that the marriage was dissolved in 2022. The property in issue, Ngong/Ngong/8121, was acquired in 1986 during the subsistence of the marriage between the parties. Their matrimonial home was constructed on that property and the Applicant, the Respondent and their children lived on that matrimonial home.
  3. With no dispute that parties were married when the property was bought and developed and that the family lived in the property, I find no hesitation in finding that the property falls under the provisions of section 6 of the Matrimonial Property Act and is therefore matrimonial property.

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

  1. The Applicant has clamed that she contributed towards the acquisition and development of the matrimonial properties through her salary as an Industrial Officer and her small business of selling clothes she sourced through the Respondent who was studying in the UK.
  2. The Applicant has also tendered evidence to show that she was gainfully employed as an Industrial Development Officer by attaching copies of payslips as well as bank statements showing withdrawals from her bank account which she claimed were utilized towards the development of the matrimonial property. She has also stated that she also contributed towards maintenance of the family through her earnings through her employment as well as rearing chicken and other business undertakings.
  3. On the other hand, the Respondent claims that he bought Ngong/Ngong/8121 alone and paid the purchase price of Kshs 60,000; that he saved money from his scholarship and constructed on the property through a loan from HFCK of Kshs 342,000 which was guaranteed by the Applicant. He claims that the Applicant did not contribute towards the acquisition and development of the property and therefore her contribution, if any, is minimal. On cross examination, the Respondent admitted that both parties shared financial responsibilities.
  4. I have considered all the evidence tendered by the parties in support of their case. I find no dispute that both were married and their marriage was subsisting at the time the matrimonial property was purchased and developed. Each party was employed and was earning a salary. They had three children although one child passed on. The Respondent spent some time in the UK studying. During the time he was away, the Applicant was left taking care of the family and the matrimonial property as well as any businesses she or the couple was running.
  5. The savings through scholarship, as claimed by the Respondent, have not been disclosed. This court is not aware how much the scholarship was and what was required for the studies and upkeep in the UK and what was saved, if any, to be able to pay for the property and construction. I have noted that the Respondent secured a loan with HFCK. The Applicant played a role towards that loan acquisition as can be seen from the affidavit sworn by both parties on 14th March 1989.
  6. I have also seen and read the various letters exchanged between the parties. These letters have also featured in evidence. The letters bear witness to the relationship between the parties during the time the Respondent was away studying. They portray a couple working harmoniously towards developing and managing their affairs for the betterment of the family. Each took up responsibility of the betterment of the family by making contributions in monetary terms and otherwise.
  7. I am alive, as stated in the Court of Appeal decision, TKM v SMW [2020] eKLR, that each case must be dealt with on the basis of its peculiar facts and circumstances. The Court stated that:

“We bear in mind the edict in Muthembwa v. Muthembwa (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.

  1. Contribution towards matrimonial property is defined under section 2 of the Matrimonial Property Act in the following terms:

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.

  1. I have considered the Applicant’s pleadings and evidence that she made both monetary and non-monetary contribution and that she acquired some money from the trainings abroad at the University of Bradford. There is evidence that the Applicant had a mini mart and business of selling clothes. She has attached letters that confirm correspondence by the Respondent on the clothes selling business. From the letters it is clear that the Respondent used to send the clothes for the Applicant to sell.
  2. The parties both admitted that they were blessed with three children, although one passed on. The Applicant’s assertion that she was taking care of the children and the household, which has not been refuted by the Respondent.
  3. It is not disputed that there was a loan obtained from Housing Finance Kenya for the development of the suit property. What the Respondent disputes is that the Applicant played a part in assisting him to repay the loan. It is his case that the loan was paid through the deductions from his salary. As stated above, there is an affidavit sworn by both parties dated 14th March, 1989 where they deposed that they undertook to repay the loan and that the loan was for the development of the suit property and the Respondent admitted in his oral testimony stated that he and the Applicant shared financial responsibility.
  4. There is evidence from the Applicant that she had poultry farming and kept a cow in the farm and that she contributed to the development of the house by buying building materials. She has attached receipts to on pages 11 to 21 of her list of documents. She also stated that she used to pay utility bills and attached Mpesa statements to this effect. She stated that though the suit property was registered solely in the name of the Respondent she has contributed heavily to its acquisition and development.
  5. Under section 7 of the Matrimonial Property Act is clear in its terms that ownership of the matrimonial property vests in the spouses according to their contribution. This section provides that:

“Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”

  1. Further, section 9 of the Matrimonial Property Act provides that:

“Where one spouse acquires property before or during the marriage and the property acquired during the marriage does not become matrimonial property, but the spouse makes a contribution towards the improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made.”

  1. The Applicant claimed that they had agreed to have the property registered in both names but the Respondent registered it in his name alone and that this brought some dispute between them which they were assisted to resolve. The Respondent did not address that issue save maintaining that he bought the property alone.
  2. Section 14 of the Matrimonial Property Act provides that:

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.

  1. The circumstances in MNH V FHM [2018] eKLR, cited by the Applicant may as well be applicable in this instant case. It is clear to this court that the Applicant made contributions towards the matrimonial property in both monetary and non-monetary means.

Whether the Applicant is entitled to an equal share or such higher proportion of the matrimonial properties.

  1. Under section 7 of the Matrimonial Property Act, ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved. The parties herein have divorced. They have exhibited decree absolute with the effect that they are no longer in a marriage relationship.
  2. I have considered the Supreme Court of Kenya decision in Petition No. 11 of 2020, cited above. The Supreme Court, while relying on a Malawian case Kishindo v Kishindo [2015] MWHC 447, stated as follows:

“There is no blue print of fairness that fits all. Fairness depends on circumstances on each case. one cannot successfully list all the circumstances. Consequently, decisions of this should be understood as not laying general or broad principles. Each decision is the court’s attempt to be fair in a particular situation….. Applying all these principles to this case, the correct in the circumstances is that all property is up to be shared fairly subject to equality. Equality here implies that both husband and wife come on equal footing to property which from the reasoning above, is jointly held between them and, in respect of the houses, irrespective of the motivation, the mode of acquisition or in whose name it is ……”

  1. My careful consideration of this matter leads me to the conclusion that each party to this suit contributed to the acquisition and development of the matrimonial property. None of them have demonstrated the exact contribution they made in terms of monetary contribution. What is clear is that each of them made monetary contribution and that the Applicant also made non-monetary contribution.
  2. Non-monetary contribution cannot be quantified in monetary terms. I am guided by section 14 of the Matrimonial Property Act and In the case of PWK vs JKG 2015 eKLR the Court said:

“Where the disputed property is not so registered in the joint names of the spouses but is registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective proportions of financial contribution either direct or indirect towards the acquisition of the property. However, in cases where each spouse has made a substantial but unascertainable contribution, it may be equitable to apply the maxim Equality is equity while heeding the caution of Lord Pearson in Gissing vs Gissing [1970] 2All ER 780 Page 788.”

  1. Having considered that both the Applicant and the Respondent were both in gainful employment when they met; that the Applicant was left taking care of the family property and the children when the Respondent was away studying, and that the Applicant was still earning her salary and running businesses to augment family income as well as taking care of the children, it is my finding that she made a bigger contribution towards the acquisition, development and maintenance of the matrimonial home. The contribution that she is entitled to, in my view, and that demonstrates fairness to both parties, should be assessed at a higher percentage compared to the share that goes to the Respondent.
  2. In conclusion therefore, it is my finding, and I so hold that the Applicant is entitled to 60% of the share of the matrimonial property against the Respondent’s 40%.

Reliefs granted

  1. I find in favour of the Applicant and grant the following reliefs:
  2. That a declaration do issue and is hereby issued that the property known as LR No. Ngong/Ngong/1821 and all the subdivisions being LR Nos Ngong/Ngong/31109, Ngong/Ngong/31110, Ngong/Ngong/31111, Ngong/Ngong/31112, Ngong/Ngong/31113 and Ngong/Ngong/31114 registered in the name of the Respondent are matrimonial property owned jointly by the Applicant and the Respondent and/or are held beneficially and in trust for the Applicant.
  3. That a declaration do issue and is hereby issued that the matrimonial home together with the buildings and improvements thereon erected on Titles namely LR Nos Ngong/Ngong/31109, Ngong/Ngong/31110, Ngong/Ngong/31111, Ngong/Ngong/31112, Ngong/Ngong/31113 and Ngong/Ngong/31114 form part of matrimonial property between the parties herein.
  4. That this Honourable Court be pleased to and hereby divides the matrimonial home together with the buildings and improvements thereon erected on Titles namely Ngong/Ngong/31109, Ngong/Ngong/31110, Ngong/Ngong/31111, Ngong/Ngong/31112, Ngong/Ngong/31113 and Ngong/Ngong/31114 at the ratio of 60:40% in favour of the Applicant and/or according to each party.
  5. That the Deputy Registrar of this Court is hereby empowered to sign any transfer documents that the Respondent may refuse to sign.
  6. That the Respondent be condemned to pay costs of this suit. 
  7. Orders shall issue accordingly.

Dated, signed and delivered this 24th day of January 2025


    EUNICE NJERI KARIITHI VS WANJAU WA KABECHA EUNICE NJERI KARIITHI VS WANJAU WA KABECHA