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JudgmentGabbie Steven Okoth VS Eunice Leki8 min read

Gabbie Steven Okoth VS Eunice Leki

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

  1. By an originating summons dated 21st July, 2021, the plaintiff sought the following reliefs;
    1. A declaration order that the property Kisumu/Chiga/3603 together with the improvements therein is a matrimonial property acquired during the subsistence of the marriage between the plaintiff/applicant and the respondent and the plaintiff is entitled to a share of 70% and the defendant 30% thereof.
    2. The respondent and her agents or proxies be restrained from assaulting, molesting, annoying or otherwise interfering with plaintiff in their matrimonial home in Kisumu/Chiga/3603.
    3. An order to exclude the defendant and her agents or proxies from the matrimonial home at Kisumu/Chiga/3603.
    4. Kisumu/Chiga/3603 with all improvements thereon be sold and shared between plaintiff 70% and defendant 30% and the deputy registrar of the court be authorized to execute the same.
    5. The court to appoint auctioneers for purposes of selling the parcel of land Kisumu/Chiga/3603.
    6. Costs be borne by the respondent.
  2. The summons are accompanied by the applicant’s affidavit in which he depones that he solely purchased the subject parcel of land and built their matrimonial home therein where they lived until he was excluded by the respondent who now lives with another man. He deponed that they are blessed with 2 issues whom the respondent accused him of defiling one of them.
  3. That upon completion of the house, he together with his family lived therein for about 3 years before the respondent brought her boyfriend and kicked him out.
  4. The respondent opposed through a replying affidavit deponing inter alia that she single-handedly scouted for the parcel and after identifying and negotiating with the owner, she paid Kshs 150,000/- while the applicant paid Kshs 20,000/- only. That she constructed the house alone and moved in with the applicant about the year 2016 until the applicant moved out in 2019 after their relationship deteriorated and finally came to an end but she remained therein with her children where she stays to date.
  5. She stated that the inclusion of the applicant as a co-owner does not confer on him any proprietary rights despite being a signatory to the sale agreements and that he merely holds a constructive trust for her. She accused the applicant of issuing threats to evict her and her daughters and thereafter sell off the land at throw away price or better still register a charge in favour of a bank.
  6. Thereafter, the matter proceeded to oral hearing. The plaintiff testifying as PW-1 stated that he married the defendant in the year 2000 and were blessed with 3 issues  and had cohabited together for 15 years in another place before buying the property now in dispute. He stated that he paid for the property and that they commenced construction of their house in the year 2014 partly from the money that he had borrowed from his mother who resides in the United States of America.
  7. He stated that the defendant accused him of defiling their 3-year old daughter which complaint was dismissed and on advise of relatives, moved out of the house. His testimony was that when he came back to the house, he found the defendant was living with another man in their house. He thus sought orders to access their house and see his children.
  8. On cross examination, he stated that he married the defendant under customary law and therefore had no certificate of marriage.
  9. The defendant testified as DW-1 and adopted her replying affidavit and supplementary affidavits which have been captured in the preceding paragraphs.
  10. On cross examination, she stated that she lived and cohabited with the plaintiff for 19 years and begot 2 children though their marriage was not formalized. She confirmed lodging a complaint with the police over the plaintiff’s alleged sexually assaulting their child. She stated that she bought the land parcel where the disputed house is constructed.
  11. She stated that she received money from the plaintiff’s mother to construct another house other than the one they were living in with the plaintiff and that the plaintiff was barred from accessing the home by the police after she complained.
  12. DW-2 Mark Autaloko Osili Adungo, the defendant’s father stated that he was aware that his daughter, the defendant herein was in an unformalized relationship with the plaintiff. He elaborated that the plaintiff did visit his home in the company of 3 other people in the year 2011 and did not comply with the Teso customary laws. That he could not recall whether he was given a token of appreciation.
  13. In cross examination, he stated that he knew the plaintiff as well as his father. That he was aware the plaintiff and defendant had lived together for 20 years and gotten children though marital rites had not been concluded.
  14. Thereafter, parties filed their respective submissions.
  15. On the issue of whether the subject property is matrimonial property, the plaintiff submits that a matrimonial property is defined under Section 6 of the Matrimonial property while a home is defined under Section 2 thereof. That by dint of Section 17 thereof, the court has jurisdiction to determine the matter. He places reliance on the decisions in P.N.N V ZWN (2017) eKLR and NCK V GVK (2015) eKLR.
  16. On the issue of what parameters would guide   the court in making a presumption of marriage, it is submitted that the circumstances herein is that the parties have lived together since the year 2000 and had two issue. That the viva voce evidence of the parties an d their witnesses supports the presumption of marriage.
  17. On the issue of the principles upon which the court should adopt in assessing the beneficial interest due to the parties and whether the respondent contributed towards the acquisition and development of the same, it is submitted that the suit property was bought by the plaintiff and registered in the plaintiff and respondent’s names. The sale agreement was written in the plaintiff’s name and payments made by the plaintiff. That the respondent did not make any monetary contributions towards purchase and development of the property and therefore deserves only 30% of the share of the matrimonial property.  He cites the authority in TKM V SMW (2020) eKLR and PNW V ZNW (supra), Section 2, and 9 of the matrimonial property
  18. On the part of the respondent, it is submitted that the plaintiff made belated arguments that the plaintiff is only entitled to 30% of the property despite the marriage act not recognizing the kind of arrangement entered into by the plaintiff and the respondent. That the presumption of marriage cannot arise in the circumstances of the case herein and the authority in Joseph Gitau Githongo V Victoria Mwikali Munya (2014) eKLR
  19. That the parties herein cannot describe themselves as married to the other as defined by Section 2 of the Matrimonial Property Act and the presumption of marriage does not in the circumstances apply. That in the circumstances, the court cannot exercise it’s discretion under Section 7 or 17 of the Matrimonial Property Act.
  20. The respondent further submits that this court lacks the jurisdiction to entertain the matter as the suit ought to be filed in the court of lowest jurisdiction competent to try the matter. 

Analysis and determination.

  1. I have carefully considered the matter, I find that the parties stated living together as husband and wife in the year 2000 and blessed with three issues. That as at the time of filing the instant suit, the parties were living separately despite them having built a house wherein they had both resided for some time before the plaintiff moved out. Presently  the defendant lives in the house with their children.
  2. There also is no doubt the sale agreements produced by the plaintiff showed that the property was jointly bought by the parties herein as deponed by the defendant at Paragraph 4 of her replying affidavit. The ensuing title deed for land parcel No. Kisumu/Chiga /3603 was issued on 10th April, 2014 in the names of both the plaintiff and the defendant. The same was produced into evidence by the plaintiff.
  3. During the hearing of the matter none of the parties raised any issue with the court’s jurisdiction  but the issue was only raised by the defendant in her submissions alluded to above. Nonetheless, the court can on it’s own motion raise the issue. This was the holding in Anaclet Kalia Musau vs Attorney General & 2 Others [2020] eKLR, where it was held:

“……A jurisdictional issue is fundamental and can even be raised by the court suo motu as was persuasively and aptly stated by Odunga J in Political Parties Dispute Tribunal & another vs Musalia Mudavadi & 6 others Ex Parte Petronila Were [2014] eKLR. The learned Judge drawing from the Court of Appeal precedent in Owners and Masters of The Motor Vessel “Joey” vs Owners and Masters of The Motor Tugs “Barbara” and “Steve B” [2008] 1 EA 367 stated thus:“What I understand the Court to have been saying is that it is not mandatory that an issue of jurisdiction must be raised by the parties. The Court on its own motion can take up the issue and make a determination thereon without the same being pleaded…”

  1. I am alive that jurisdiction is everything and without it the court cannot take a further step. See Owners of Motor vessel Lilian S V Caltex Oil (Kenya) Ltd (1989) eKLR.
  2. In the instant case, the defendant at Paragraph 6 deponed that the house was constructed at about Kshs 3,000,000/-. The land itself was bought at Kshs 170,000/-. The plaintiff mentioned nothing about the court’s jurisdiction.
  3. The jurisdiction of this court in matters matrimonial property is donated by the Matrimonial Property Rules, 2022 and specifically at Rule 6 which provides;

(1) An application to enforce a claim relating to matrimonial property may be made in any proceedings under the Act—

(a) to the High Court in any case where the value of the matrimonial property which is the subject matter of the claim exceeds the pecuniary jurisdiction of a magistrate\'s court; or

(b) to a magistrate\'s court having civil jurisdiction to adjudicate matters within the court\'s pecuniary jurisdiction.

  1. By dint of the above provisions, it is clear that for a suit of this nature to be filed in this court, the pecuniary jurisdiction of the property should exceed that of the magistrate’s court otherwise if the pecuniary value of the subject property falls within the limits of the subordinate court, the same ought to be filed in that court.
  2. I am alive that under the Magistrate’s Court Act, a Magistrates’ court presided over by a chief magistrate has pecuniary jurisdiction up to 20 Million as provided for under Section 7(1)(a).
  3. In the present case, there is no indication of the value of the subject property by either party except a deduction from the affidavits herein and the defendant’s submissions.
  4. Having said as above, it is my finding that the pecuniary jurisdiction of the subject property under litigation herein falls squarely within the ambit of the magistrate’s court and not this court.
  5. Consequently, the suit herein is struck for want of jurisdiction. This being a family dispute, each party shall bear its own costs.
  6. Orders accordingly.

Delivered, Dated, and Signed at Kisumu this 27th day of August 2024

    Gabbie Steven Okoth VS Eunice Leki Gabbie Steven Okoth VS Eunice Leki