1. The Plaintiff/Applicant vide Originating Summons dated 14/04/2024 expressed to be brought under Section 17 of the Matrimonial Property Act,
Section 13 of the Marriage Act 2014 and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act. The Plaintiff sought for the following orders as follows:
1) That declaration be issued declaring that the Applicant/Plaintiff is entitled to whole share or such other share as the Court may award of the properties (movable and immovable) acquired by the Plaintiff prior to and/or during the substance of their marriage and that the Defendant holds title, interest, ownership and/or possession of the said properties in trust for the Plaintiff/Applicant in their respective shares as the legal owners and cestui que trust respectively namely:
a) 31/2 ACRES comprised in LR NO. MOISBRIDGE/MOISBRIDGE/BLOCK 7(LAMAIYWET)/9 (PART) being the matrimonial home.
b) 0.8 ACRES comprised in L.R NO. BAR/KEWAMOI "A”3358 measuring 50 by 100 located in Kabarnet Town
c) Rental units comprised in L.R. NO. BAR/KEWAMOI "A” 3358 measuring 50 by 100 located in Kabarnet Town
d) Parcel of land measuring approximately 2 acres located in Sessianin Baringo North, Barwesa Division, Lawan Location, Keturwo Sub-location containing a bungalow house.
e) Parcel of land measuring approximately 6 Acres located in Katibei area of Cheboryo.
f) Parcel of land measuring approximately 6 acres located Sessianin Baringo North, Baresa Division, Lawan Location, Keturwo Sub-location.
g) Motor Vehicle Registration No. KBV 361A Double Cabin
h) 2 Freshian cows AND 2 Ayrshire cows.
i) 5 dorper sheep.
j) Household Items and all other properties acquired during the subsistence of the marriage and personal effects full details whereof are well within the defendant/respondent's knowledge.
k) Baringo/Konoo/3018 measuring 0.03H
l) Baringo/Kwamoi “A"/3358 measuring 0.08H
m) Baringo/Keturwo/2684 measuring 0.23H
n) Baringo/Keturwo/2940 measuring 1.53H
o) Baringo/Keturwo/2996 measuring 0.93H
p) Baringo/Keturwo/2941 measuring 0.96H
q) Motor vehicle Registration KBV 361A
r) Motor vehicle Registration KCC 491C
s) Motor vehicle Registration KCF 808Q
t) Motor vehicle Registration KCA 708E
2) THAT an order do issue directing that the above matrimonial properties to be shared according to the contribution made by the parties towards their acquisition, development and/or improvement or in any other ratio as this honourable Court may deem just and expedient to order/direct.
3) THAT an order do issue directing that the household items be released to the Applicant/Plaintiff and/or that the same be shared in any ratio as this honourable Court may deem just and expedient to order.
4) THAT an order in the alternative to all the above, an order do issue directing that a valuation be carried out on all the above properties and a valuation report be filed in Court by a mutually accepted valuer after which the Court will apportion share as the Court may order in the best interest of justice.
5) THAT upon the grant of any and/or all of the foregoing, a permanent injunction do issue restraining the Defendant by himself, his servants, agents and/or employees from interfering with the Plaintiff's lawful enjoyment and quiet possession of the properties awarded to her by this Court.
6) THAT such other and/or further orders be granted as the Court may deem fit, fair and expedient in the circumstances.
2. The Application is supported by the Applicant’s Affidavit sworn on the same date. She deposed that on or about 1997, she and the Defendant got married when she was in Form 3 and he was in the University and that the union was blessed with four issues.
3. The Applicant further deposed that the marriage irretrievably broke down and was dissolved vide Eldoret Chief Magistrate's Divorce Cause 47 OF 2020.
4. The Applicant maintained that she and the Defendant acquired, developed, improved and maintained movable and immovable property during the subsistence of their marriage and that they acquired the following properties:
5. The Applicant deposed that they constructed a residential house on L.R. No. MOISBRIDGE/MOISBRIDGE/BLOCK 7 (LAMAIYWET)/9 (PART) in which her family including the Defendant herein and her resided until when they got divorced and he permanently stayed in Nairobi, where he had been working.
6. The Applicant contended that on or about 5/06/2023 the Defendant locked her house and left her stranded with nowhere to go and that she had to seek assistance of the local chief who helped her to reopen the house and gain access therein and that she also reported the matter to the local police station. She further contended that upon discovery of the fact that she had gained access of the house, the Defendant started intimidating the chief and kicked her out of the house on 10/06/2023, locked the doors and vandalized her kitchen and latrine, that the defendant also threw out her beddings and other personal effects and that the defendant also vandalized her crops and took away her livestock when locking the house.
7. The Applicant urged that marriage/union having been dissolved, it is only fair and just that the properties they acquire solely and/or with contribution on the part of the Respondent/Defendant be distributed in equally and/or as shall be quantified by this Honourable Court in the best interest of justice.
8. The Applicant maintained that if it were not for her contribution and support as a house wife, the suit properties would not have been acquired and or developed and that the properties captioned under paragraph 1 (a)-(i) of the Originating Summons are currently in the sole possession and/or control of the Respondent/Defendant to her detriment.
9. The Applicant deposed that in the above premises, she has been rendered vagabond despite the fact that she wasted her youth with the Defendant and she is now unable to actively participate in vigorous economic activities having spent most of her lifetime as a housewife.
10. The Applicant is apprehensive that the Respondent/Defendant upon being served with these pleadings may dispose of the properties without her knowledge to her detriment and that of their children. According to the Applicant she is now facing the danger of losing all her past investment and she will suffer great injustice should the Respondent/Defendant retain the sole occupation, possession and/or control of the said properties which were acquired partly by her.
11. The Applicant urged that the said properties be shared proportionately according to their contribution and/or in such other manner as this Court may deem fit and just and/or the same be sold and the proceeds thereof shared proportionately. She contended that the Defendant's continued enjoyment of their matrimonial home despite having 2 other bungalows where he lives is prejudicial to her.
Replying Affidavit
12. The application is opposed by the Defendant/Respondent vide his Replying Affidavit sworn on 27/06/2024. He deposed that the he and the Applicant began cohabiting in the year 1997 and that their marriage was dissolved vide a Decree Absolute dated 23/02/2022. That however, he and the Applicant had already separated on 29/05/2012 after he found her committing adultery on their matrimonial bed with one Mackline Sumatwa as per the Divorce Petition.
13. The Defendant maintained that the during the subsistence of their marriage, the Plaintiff never contributed to the properties he owns. He contended that the property cited by the Plaintiff as 31/2 Acres comprised in LR NO. MOISBRIDGE/MOISBRIDGE/BLOCK 7 (LAMAIYWET) 9 (PART) being the matrimonial home does not exist as alleged by the Plaintiff, that Parcel of Land known as Land Reference Number MOISBRIDGE/MOISBRIDGE/BLOCK 7 (LAMAIYWET)/9 (PART)measures 1 acre only and the Matrimonial House is erected on the said parcel and was solely purchased by him.
14. That when he bought Land Reference Number MOISBRIDGE /MOISBRIDGE/BLOCK 7 (LAMAIYWET)/9(PART) measuring 1 acre, he was working at the National Police Service and he bought the land parcel solely from the proceeds of his employment and that the Plaintiff did not make any contributions financially or otherwise and that he also used proceeds from his employment and supplemented the same by taking up loans to build and furnish the house that is erected on Land Reference Number MOISBRIDGE /MOISBRIDGE/BLOCK 7(LAMAIYWET)/9 (PART) measuring 1 acre with no contributions from the Plaintiff and that the Plaintiff is not aware of the circumstances of the acquisition of the property as he moved her to the house after construction and furnishing of the same.
15. The Defendant further deposed that the other part of Land Reference Number MOISBRIDGE /MOISBRIDGE/BLOCK 7(LAMAIYWET)/9 (PART) comprising of 1.1 Acres which is a different portion of the same land that was subsequently sold to him by the same vendor in two parts of 0.4 acres as per the Agreement for sale provided by the Plaintiff and 0.7 Acres which was subsequently sold to him at a later date, that Land Reference Number MOISBRIDGE /MOISBRIDGE/BLOCK 7(LAMAIYWET)/9 (PART) comprising of 1.1 Acres was also bought from the proceeds he received when he was working with the National Police Service and that the Plaintiff/Applicant has never made any contribution in purchasing the same, that land reference Number MOISBRIDGE /MOISBRIDGE/BLOCK 7(LAMAIYWET)/9 (PART) comprising of 1.1 Acres is unoccupied as he practices maize farming on the parcel of land which is solely maintained by him.
16. The Defendant added that he also owns land Reference Number MOISBRIDGE/MOISBRIDGE/BLOCK 13(PART) comprising of a half-acre in Moi’s bridge which was bought on 17/06/2004 also from the proceeds of his employment at the National Police Service where he has planted blue gum trees on the whole land parcel which are maintained solely by him.
17. The Defendant further deposed that the property listed by the Plaintiff under Paragraph 6 (b), 6 (c) & 6 bb cited as Baringo/Kewamoi "A" /3358 comprising of 0.8 HA is the same property, that the property, Baringo/Kewamoi"A"/3358 comprising of 0.8 HA was purchased on 18/03/2015 when he and the Plaintiff had already separated and that at the time of the Purchase of Land Parcel Number Baringo/Kewamoi“A"/3358 comprising of 0.8 HA he was already married to his current wife Ms. Belvine Wanjiru Namu with whom he started cohabiting with in the year 2009 but formalized their marriage on 30/07/2015.
18. That his wife Belvine Wanjiru Namu witnessed the purchase of Land Parcel Number Baringo/Kewamoi"A"/3358 comprising of 0.8HA which means that him and the he and the Plaintiff were not together at the time hence there is no way she contributed to the acquisition of the same either directly or indirectly and that the alleged rental houses do not exist as the property is still under construction and his wife and him are planning to start a maize milling plant after completion.
19. The Defendant contended that parcel of Land measuring Approximately 2 acres located in Sessianin Baringo North, Barwesa Division, Lawan Location, Keturwo Sub-location containing a bungalow house as cited by the Plaintiff was Purchased on 11/06/2015 and that the said land belongs to his current wife as he purchased it for that purpose. That the parcel of Land measuring Approximately 2 acres located in Sessianin Baringo North, Barwesa Division, Lawan Location, Keturwo sub location containing a bungalow house as cited by the Plaintiff is also known as Land Parcel Number Baringo/Keturwo/2996 measuring 0.93Ha under paragraph 6 (ff) and that the bungalow erected on the Land Parcel is under construction.
20. The Defendant maintained that the alleged properties under Paragraph 6 (e) and 6(f) are unknown to him as he does not own such properties, that motor Vehicle registration Number KBV361 A Double Cabin was purchased on 6/08/2019 through a staff car loan by his current employer NCBA Bank Limited for a sum of Kshs.2,250,000.00 hence it was bought from his sole proceeds at a time when the Plaintiff and him had separated hence she cannot claim the same. That the 2 Freshian Cows, 2 Ayrshire cows, a Friesian bull and 5 dooper sheep cited by the Plaintiff under paragraph 6 (h) are unknown to him as he is not aware of any animals owned by him in his farm in Baringo, where he practices animal farming. He added that, they belong to the Plaintiff and they separated over 12 years ago.
21. The Defendant further deposed that land Parcel Number Baringo/Konoo/3018 measuring 0.03 HA was purchased on 15/02/2019 at a time when the Plaintiff and him had already separated hence she did not contribute to the purchase of the same. That land Parcel Number Baringo/Keturwo/2684 measuring 0.23HA was purchased on 24/08/2017 at a time when he and the Plaintiff had already separated hence she did not contribute and he does not have an Agreement for Sale with regard to that land Parcel.
22. The Defendant maintained that land Parcel Number Baringo/Keturwo/2940 measuring 1.53 Ha was Purchased on 2/04/2017 at a time when him and the Plaintiff had already separated hence she did not contribute and that land parcel Number Baringo/Keturwo/ 2941 measuring 0.96 Ha was purchased was purchased in the year 2018 at a time when him and the Plaintiff had already separated hence she did not contribute and that he does not have an Agreement for Sale with regard to that Land Parcel.
23. The Defendant further deposed that motor Vehicle Registration Number KCC 491 C in the make of ISUZU NQR66BUS/COACH was initially registered in the name of his wife Belvine Wanjiru Namu and Equity Bank Limited, that after Belvine Wanjiru Namu finished paying her loan with Equity Bank Limited she transferred Motor Vehicle Registration Number KCC 491 C to his name hence he holds the same in trust, that the transport business belongs to him and his wife Belvine Wanjiru Namu and that on 29/05/2024 they made a decision to sell Motor Vehicle Number KCC 491C as it had depreciated and it did not make business sense to have the Motor Vehicle as part of their fleet.
24. The Defendant deposed that motor Vehicle Registration Number KCF 808 Q in the make of ISUZU NQR a 33-seater bus was previously registered under Astrabell Limited a company where Belvine Wanjiru Namu and him were previously co-directors.
25. The Defendant added that motor Vehicle Registration Number KCF 808 Q was acquired using a loan with Family Bank Limited which was repaid using the joint efforts of his wife Belvine Wanjiru Namu and him and that after repaying the loan from Family Bank, they agreed to have the Motor Vehicle Registration Number KCF 808 Q registered in his name hence the same is held in trust in favor of his wife Belvine Wanjiru Namu. He maintained that motor Vehicle Registration Number KCA 708 E in the make of Isuzu Bus /Coach was purchased from a loan from NIC Bank on 29/03/2018 now NCBA Bank hence the same solely belonged to him however he sold the Motor Vehicle to James Nyarumi Nyandwao.
26. The Defendant maintained that although the Plaintiff and him separated in the year 2012, he goes to the house in Moi’s bridge from time to time to take care of his personal and farming businesses, that the Plaintiff and him have maintained a cordial relationship even after their separation in 2012 but they have never resumed cohabitation, that when he is visiting the Moi’s bridge house, he has access to a different part of the house from the Plaintiff, that the Plaintiff primarily resides in the house alone while he resides in Embakasi, Nairobi County together with the children from their marriage. That on 27/05/2023, he went to the Moi’s bridge house as he normally does at around 5:00 pm, that the Plaintiff on seeing him, left the house and did not return, that at around 8:00 pm, the area chief who was accompanied by police officers stormed into the compound of the house accusing him of demolishing the house, that at the time, he was seated outside the house hence, he allowed the police officers and the area chief to inspect the premises for purposes of confirming the Plaintiff's allegations and that they found that the Plaintiff had made false allegations against him as the house had not been demolished neither had anything around the house been vandalized.
27. The Defendant added that on 28/05/023 the Plaintiff brother Haron Kibusia, a retired police officer, together with his son Kiprop Kipchumba came to the house to inquire what had happened between the Plaintiff and him because she had informed them that he had evicted her from the house, that he gave them a brief narration of how the Plaintiff had fled the house when he arrived on 27/05/2023 for reasons unknown to him and later falsely accused him of evicting her and demolishing the house, that they agreed that the Plaintiff would return to her maiden home and they would have a subsequent meeting for purposes of enquiring why she was accusing him falsely while she had left the house on her own volition. That the Plaintiff’s brother informed him that he would convene the meeting wherein they would invite him and the elders from his side of the family and that he subsequently left Moi’s bridge on 3/06/2023 with no communication from the Plaintiff's family on the date of the proposed meeting.
28. That further, the Plaintiff had not returned so he bought a padlock, locked the house and left, that he could not leave the house unlocked because he did not know the whereabouts of the Plaintiff, that on 6/06/2023, he was shocked to learn that the Plaintiff had returned to the house and was breaking locks in the company of the area chief, that he was also shocked by the Plaintiff's actions in the events leading up to 3/06/2023 and he believes that her false allegations against him as evidenced above were calculated to persuade the local administration, law enforcers and the Court that he is a violent person for purposes of getting orders barring him from accessing the Moi’s bridge house.
29. That he is not privy to the events that may have taken place after 3/06/2023 when he left Moi’s bridge apart from the fact of the Plaintiff breaking the house locks in the company of the area chief on 6/06/2023 hence the allegations in paragraphs 6-10 are denied. He maintained that the Plaintiff cannot enjoy the house in Moi’s bridge to his exclusion as parties to the marriage are equal during the subsistence of the marriage and during the dissolution of the same, that the Moi’s bridge house and the Parcel of land wherein it is erected was bought by him and the Plaintiff did not contribute to the same and further that the Plaintiff is lying under oath as the events of 5/06/2023 did not happen as she alleges as he was not even in Moi’s bridge on the said date.
30. The Defendant maintained that he has no intention of vandalizing any of the property at Moi’s bridge with regard to the land where the matrimonial house is erected as the same was bought and was maintained using his money until when this suit was filed and the Plaintiff has never made any contribution either financially or otherwise.
31. The Defendant reiterated that the Plaintiff has never contributed or maintained any property under his name as he has demonstrated and hence she does not deserve any share. That the Plaintiff has continued to diminish the value of the matrimonial home as she has destroyed the doors and windows and also sold the household goods therein and it is therefore his prayer that this Court does make a declaration that he has 100% right to the matrimonial home so that he can take complete control of the same and that he does not hold any property in trust of the Plaintiff herein.
32. That the Plaintiff has had opportunities to develop herself as is evidenced by a loan she borrowed from SMEP DTM Limited wherein she listed the defendant’s assets as security which included his Agri Chopper Machine, Motor Cycle Number KMCF992B, sofas, gas cooker and cows without his consent and listed Andrew Kiprono Maiyo as her husband whilst they were still married. That she failed to repay the money she had borrowed but instead wasted the same resulting in him repaying the loan. According to the Defendant the Plaintiff is a very wasteful person who has continuously diminished the value of the matrimonial home and sold the household items.
33. The Defendant maintained that he has no intention of disposing his own properties that he has worked hard to acquire during his various employment with the National Police Service, Barclays Bank as then was and NIC Bank now NCBA and that since his separation from the Plaintiff, he is the parent with the actual custody of the children of the marriage two of whom are now adults and so there is no way he would make a decision that is to their detriment. That the Plaintiff has only demonstrated that he owns the properties listed in her Supporting Affidavit and Originating Summons but has failed to demonstrate her contribution to th acquisition of the same either directly and/or indirectly.
34. In the end, the Defendant urged the Court not grant a share of the properties owned by him and the others owned together with his current wife Belvine Wanjiru Namu as that will be allowing the Plaintiff to reap where she did not sow.
35. Subsequently, the matter proceeded by way of viva voce evidence. The plaintiff testified by herself and called4 witnesses and the defendant testified by himself and called no witnesses. A summary of their evidence is as hereunder.
The Plaintiff’s Evidence
36. The Plaintiff PW1 in her testimony stated that she is a housewife and that she does not work. She then adopted the Supporting Affidavit sworn on 25/4/2024 as her evidence in chief and the exhibits listed on her list of documents as amended dated 31/5/2024.
37. She testified that she contributed a lot to the acquisition of the property and so she also needs to get a share. She stated that when they got married, they had children and they bought the land and established the matrimonial home. She testified that she stayed at home, cultivated the land and sell the produce to get money to further develop the land. She testified that she tended to and watered the trees. It was her testimony that she is the one who planted them and watered them and tended them and even took care of the cattle some of which would be sold to pay school fees. She stated that she had to leave school as the defendant was at the University and that she did casual work as she tended to the farm and also took care of the children and that she would do the digging by hand and was not using a tractor, doing manual labour and using ‘chama’proceeds to assist the defendant. She told the Court that he was already a policeman at the college and that she joined him in Nairobi when they got the farm at Baringo and at Moi's Bridge. She stated that at Baringo they built a toilet and left it then concentrated on the Moi's Bridge farm. She told the Court that she left Nairobi and came to Moi's Bridge and handled the children, the workers, the ongoing construction, the farm and everything to do with the development of the farm as he wandered around in Nairobi coming only once in a while and then going back.
38. In cross-examination PW1, stated that she has nothing to show when she got married to the defendant. She testified that she was under age and in form 3. She stated that she did not contribute monetarily to the development of the matrimonial properties at Moi's Bridge. She stated that their homestead is on 3 ½ acres and that the trees are planted on half an Acre. She told the Court that the sale agreement the purchase was for one acre and that the seller is James Sirma and that the same is dated 4/3/2004. She further testified that the 2nd Sale Agreement is dated 29/4/2007 and that the seller is Sirma and the buyer is Noah and that the acreage is 0.4 Ha. She confirmed that that the Defendant Sale Agreement is dated 26/11/2007 and that the seller is Sirma and the buyer is Noah and that the same is 2.7 Acres. She stated that she lives on the farm and that the homestead is on one acre.
39. She clarified that the parcels are separated but it is one person who sold the entire parcel and that she cultivates the rest. She told the Court that she was not forced to marry the respondent. She confirmed that she has 4 children. The eldest is 24 years born in 1997, the 2nd was born in 2003, then the 3rd born in 2007 and the last one born in 2011. She told the Court that they did mediation in regard to the children and they were given to the defendant. She confirmed that she lives with their child George only and the rest of the children come to live with her during the holidays.
40. She reiterated that she is the one who developed and took care of the house, gave birth to and took care of the children. She stated that the Defendant's exhibit shows the door to the house at Moi's Bridge and that added that it is the defendant who damaged it. She stated that she had a salon but it collapsed. She told the Court that Noah supported her and set it up but she contributed to it too. In regard to the Defendant’s documents No. 60, She stated that she took the loan with household goods as security and that the goods were attached but they were brought back when the loan was paid and that she is the one who paid that loan with the SMEP. She conceded that the receipt of Co-operative Bank shows that the defendant paid and stated that the loan people went back and she paid again.
41. She testified that they lived together since 2023 when he removed her from the house and that there was a Divorce Cause in the lower Court but she did not know about the Divorce Cause since it is the defendant who filed it and that it is when he evicted her from the house when she was told he had divorced her and so she filed this Matrimonial Cause. She stated that she does not know if the defendant has another wife for reasons that he still used to go to their home at Moi’s Bridge until when he evicted her. She testified that she does not know Kiprop. She denied that they were estranged in 2012, as Defendant still used to go home. She stated that in 2012, they just disagreed and she went home and that Noah went for her and she went back.
42. She told Court that Kipchumba is her brother. She stated that they lived with Noah at Moi's Bridge and that even the property at Baringo he bought when he was her husband and she was his wife so even if she did not contribute to their purchase financially, she is entitled to a share of those properties and including the cars that she has listed for reasons that even if she does not know how he purchased them they were purchased when they were together.
43. PW2 was Barnabas Kimurgen Kiplagat Kemboi. He dopted his Witness statement dated on 15/4/2024 as his evidence in chief. He told the Court that him and the couple have been neighbours since 2004. He stated that he can testify on the loan because his wife too was a member of that SMEP Group and that if one asked for a loan, another member of the group would act as their guarantor and so all of the members took loans and they paid back though there was a time that the plaintiff had problems paying but she eventually paid. He told the Court that as per the records it is the plaintiff who paid back the loan. He stated that he also knows that she had salon but it did not last because she had a child to take care of as well as tend to the cows and so managing and supervising it must have been a challenge because of what she had in her hands and so she had employed a lady in the salon. He added that Moi’s Bridge is a one street town and the salon was at more in the back. He told the Court that PW1 and the Defendant came and they build on the land and that he was their immediate neighbour and he watched them grow. He reiterated that Joan is the one who took care of the farm, cultivated the land, reared the cows and chicken, took care of the children and all this is because the husband was working away from home and was not staying there but would come and stay for some 2-3 days and then go back.
44. In cross-examination PW2 stated that he met them before they bought his brother's farm and planted blue gum trees. He then produced the agreement of the sale of the land and added that he is the one who took the minutes of the meeting. He stated that present at the meeting were: Selina Koech, his mother, Sila Rotich, his uncle, William Cheruiyot, their neighbour and Reuben Cheruiyot, a family member and a friend of the defendant. He told the Court that the agreement is between his father, Wilson Koech and Noah the defendant. He added that the agreement indicated the names of all those that were present. He stated that the plaintiff Joan was also present and further confirmed that it is the defendant Noah who gave out Kshs. 90,000/= to his brother Jonah Ruto. He stated that he was a member of SMEP but he left after his wife came in as a member.
45. PW4 was Charles Munyengwo Komen, he adopted his Witness statement dated on 15/04/2024 as his evidence in chief. He stated that Joan is his cousin and that she got married at the stage of "Miaka kumi na kitu" and that she was in school then in Form 2 and the defendant Noah was in 2nd or 3rd year at the University. He stated that they were shocked at the divorce because Noah impregnated Joan as a young girl and left her at home to cultivate and work the land as Noah comes and sells the produce. He told the Court that Noah finally got a job as a policeman then he bought land, fenced, built a toilet as Joan remained at home as his manager. He stated that they were his neighbours then and that after a while both of them left for Nairobi. He testified that he later heard that they moved to Moi's Bridge but about that he did not know. It was his testim
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Section 13 of the Marriage Act 2014 and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act. The Plaintiff sought for the following orders as follows:
1) That declaration be issued declaring that the Applicant/Plaintiff is entitled to whole share or such other share as the Court may award of the properties (movable and immovable) acquired by the Plaintiff prior to and/or during the substance of their marriage and that the Defendant holds title, interest, ownership and/or possession of the said properties in trust for the Plaintiff/Applicant in their respective shares as the legal owners and cestui que trust respectively namely:
a) 31/2 ACRES comprised in LR NO. MOISBRIDGE/MOISBRIDGE/BLOCK 7(LAMAIYWET)/9 (PART) being the matrimonial home.
b) 0.8 ACRES comprised in L.R NO. BAR/KEWAMOI "A”3358 measuring 50 by 100 located in Kabarnet Town
c) Rental units comprised in L.R. NO. BAR/KEWAMOI "A” 3358 measuring 50 by 100 located in Kabarnet Town
d) Parcel of land measuring approximately 2 acres located in Sessianin Baringo North, Barwesa Division, Lawan Location, Keturwo Sub-location containing a bungalow house.
e) Parcel of land measuring approximately 6 Acres located in Katibei area of Cheboryo.
f) Parcel of land measuring approximately 6 acres located Sessianin Baringo North, Baresa Division, Lawan Location, Keturwo Sub-location.
g) Motor Vehicle Registration No. KBV 361A Double Cabin
h) 2 Freshian cows AND 2 Ayrshire cows.
i) 5 dorper sheep.
j) Household Items and all other properties acquired during the subsistence of the marriage and personal effects full details whereof are well within the defendant/respondent's knowledge.
k) Baringo/Konoo/3018 measuring 0.03H
l) Baringo/Kwamoi “A"/3358 measuring 0.08H
m) Baringo/Keturwo/2684 measuring 0.23H
n) Baringo/Keturwo/2940 measuring 1.53H
o) Baringo/Keturwo/2996 measuring 0.93H
p) Baringo/Keturwo/2941 measuring 0.96H
q) Motor vehicle Registration KBV 361A
r) Motor vehicle Registration KCC 491C
s) Motor vehicle Registration KCF 808Q
t) Motor vehicle Registration KCA 708E
2) THAT an order do issue directing that the above matrimonial properties to be shared according to the contribution made by the parties towards their acquisition, development and/or improvement or in any other ratio as this honourable Court may deem just and expedient to order/direct.
3) THAT an order do issue directing that the household items be released to the Applicant/Plaintiff and/or that the same be shared in any ratio as this honourable Court may deem just and expedient to order.
4) THAT an order in the alternative to all the above, an order do issue directing that a valuation be carried out on all the above properties and a valuation report be filed in Court by a mutually accepted valuer after which the Court will apportion share as the Court may order in the best interest of justice.
5) THAT upon the grant of any and/or all of the foregoing, a permanent injunction do issue restraining the Defendant by himself, his servants, agents and/or employees from interfering with the Plaintiff's lawful enjoyment and quiet possession of the properties awarded to her by this Court.
6) THAT such other and/or further orders be granted as the Court may deem fit, fair and expedient in the circumstances.
2. The Application is supported by the Applicant’s Affidavit sworn on the same date. She deposed that on or about 1997, she and the Defendant got married when she was in Form 3 and he was in the University and that the union was blessed with four issues.
3. The Applicant further deposed that the marriage irretrievably broke down and was dissolved vide Eldoret Chief Magistrate's Divorce Cause 47 OF 2020.
4. The Applicant maintained that she and the Defendant acquired, developed, improved and maintained movable and immovable property during the subsistence of their marriage and that they acquired the following properties:
5. The Applicant deposed that they constructed a residential house on L.R. No. MOISBRIDGE/MOISBRIDGE/BLOCK 7 (LAMAIYWET)/9 (PART) in which her family including the Defendant herein and her resided until when they got divorced and he permanently stayed in Nairobi, where he had been working.
6. The Applicant contended that on or about 5/06/2023 the Defendant locked her house and left her stranded with nowhere to go and that she had to seek assistance of the local chief who helped her to reopen the house and gain access therein and that she also reported the matter to the local police station. She further contended that upon discovery of the fact that she had gained access of the house, the Defendant started intimidating the chief and kicked her out of the house on 10/06/2023, locked the doors and vandalized her kitchen and latrine, that the defendant also threw out her beddings and other personal effects and that the defendant also vandalized her crops and took away her livestock when locking the house.
7. The Applicant urged that marriage/union having been dissolved, it is only fair and just that the properties they acquire solely and/or with contribution on the part of the Respondent/Defendant be distributed in equally and/or as shall be quantified by this Honourable Court in the best interest of justice.
8. The Applicant maintained that if it were not for her contribution and support as a house wife, the suit properties would not have been acquired and or developed and that the properties captioned under paragraph 1 (a)-(i) of the Originating Summons are currently in the sole possession and/or control of the Respondent/Defendant to her detriment.
9. The Applicant deposed that in the above premises, she has been rendered vagabond despite the fact that she wasted her youth with the Defendant and she is now unable to actively participate in vigorous economic activities having spent most of her lifetime as a housewife.
10. The Applicant is apprehensive that the Respondent/Defendant upon being served with these pleadings may dispose of the properties without her knowledge to her detriment and that of their children. According to the Applicant she is now facing the danger of losing all her past investment and she will suffer great injustice should the Respondent/Defendant retain the sole occupation, possession and/or control of the said properties which were acquired partly by her.
11. The Applicant urged that the said properties be shared proportionately according to their contribution and/or in such other manner as this Court may deem fit and just and/or the same be sold and the proceeds thereof shared proportionately. She contended that the Defendant's continued enjoyment of their matrimonial home despite having 2 other bungalows where he lives is prejudicial to her.
Replying Affidavit
12. The application is opposed by the Defendant/Respondent vide his Replying Affidavit sworn on 27/06/2024. He deposed that the he and the Applicant began cohabiting in the year 1997 and that their marriage was dissolved vide a Decree Absolute dated 23/02/2022. That however, he and the Applicant had already separated on 29/05/2012 after he found her committing adultery on their matrimonial bed with one Mackline Sumatwa as per the Divorce Petition.
13. The Defendant maintained that the during the subsistence of their marriage, the Plaintiff never contributed to the properties he owns. He contended that the property cited by the Plaintiff as 31/2 Acres comprised in LR NO. MOISBRIDGE/MOISBRIDGE/BLOCK 7 (LAMAIYWET) 9 (PART) being the matrimonial home does not exist as alleged by the Plaintiff, that Parcel of Land known as Land Reference Number MOISBRIDGE/MOISBRIDGE/BLOCK 7 (LAMAIYWET)/9 (PART)measures 1 acre only and the Matrimonial House is erected on the said parcel and was solely purchased by him.
14. That when he bought Land Reference Number MOISBRIDGE /MOISBRIDGE/BLOCK 7 (LAMAIYWET)/9(PART) measuring 1 acre, he was working at the National Police Service and he bought the land parcel solely from the proceeds of his employment and that the Plaintiff did not make any contributions financially or otherwise and that he also used proceeds from his employment and supplemented the same by taking up loans to build and furnish the house that is erected on Land Reference Number MOISBRIDGE /MOISBRIDGE/BLOCK 7(LAMAIYWET)/9 (PART) measuring 1 acre with no contributions from the Plaintiff and that the Plaintiff is not aware of the circumstances of the acquisition of the property as he moved her to the house after construction and furnishing of the same.
15. The Defendant further deposed that the other part of Land Reference Number MOISBRIDGE /MOISBRIDGE/BLOCK 7(LAMAIYWET)/9 (PART) comprising of 1.1 Acres which is a different portion of the same land that was subsequently sold to him by the same vendor in two parts of 0.4 acres as per the Agreement for sale provided by the Plaintiff and 0.7 Acres which was subsequently sold to him at a later date, that Land Reference Number MOISBRIDGE /MOISBRIDGE/BLOCK 7(LAMAIYWET)/9 (PART) comprising of 1.1 Acres was also bought from the proceeds he received when he was working with the National Police Service and that the Plaintiff/Applicant has never made any contribution in purchasing the same, that land reference Number MOISBRIDGE /MOISBRIDGE/BLOCK 7(LAMAIYWET)/9 (PART) comprising of 1.1 Acres is unoccupied as he practices maize farming on the parcel of land which is solely maintained by him.
16. The Defendant added that he also owns land Reference Number MOISBRIDGE/MOISBRIDGE/BLOCK 13(PART) comprising of a half-acre in Moi’s bridge which was bought on 17/06/2004 also from the proceeds of his employment at the National Police Service where he has planted blue gum trees on the whole land parcel which are maintained solely by him.
17. The Defendant further deposed that the property listed by the Plaintiff under Paragraph 6 (b), 6 (c) & 6 bb cited as Baringo/Kewamoi "A" /3358 comprising of 0.8 HA is the same property, that the property, Baringo/Kewamoi"A"/3358 comprising of 0.8 HA was purchased on 18/03/2015 when he and the Plaintiff had already separated and that at the time of the Purchase of Land Parcel Number Baringo/Kewamoi“A"/3358 comprising of 0.8 HA he was already married to his current wife Ms. Belvine Wanjiru Namu with whom he started cohabiting with in the year 2009 but formalized their marriage on 30/07/2015.
18. That his wife Belvine Wanjiru Namu witnessed the purchase of Land Parcel Number Baringo/Kewamoi"A"/3358 comprising of 0.8HA which means that him and the he and the Plaintiff were not together at the time hence there is no way she contributed to the acquisition of the same either directly or indirectly and that the alleged rental houses do not exist as the property is still under construction and his wife and him are planning to start a maize milling plant after completion.
19. The Defendant contended that parcel of Land measuring Approximately 2 acres located in Sessianin Baringo North, Barwesa Division, Lawan Location, Keturwo Sub-location containing a bungalow house as cited by the Plaintiff was Purchased on 11/06/2015 and that the said land belongs to his current wife as he purchased it for that purpose. That the parcel of Land measuring Approximately 2 acres located in Sessianin Baringo North, Barwesa Division, Lawan Location, Keturwo sub location containing a bungalow house as cited by the Plaintiff is also known as Land Parcel Number Baringo/Keturwo/2996 measuring 0.93Ha under paragraph 6 (ff) and that the bungalow erected on the Land Parcel is under construction.
20. The Defendant maintained that the alleged properties under Paragraph 6 (e) and 6(f) are unknown to him as he does not own such properties, that motor Vehicle registration Number KBV361 A Double Cabin was purchased on 6/08/2019 through a staff car loan by his current employer NCBA Bank Limited for a sum of Kshs.2,250,000.00 hence it was bought from his sole proceeds at a time when the Plaintiff and him had separated hence she cannot claim the same. That the 2 Freshian Cows, 2 Ayrshire cows, a Friesian bull and 5 dooper sheep cited by the Plaintiff under paragraph 6 (h) are unknown to him as he is not aware of any animals owned by him in his farm in Baringo, where he practices animal farming. He added that, they belong to the Plaintiff and they separated over 12 years ago.
21. The Defendant further deposed that land Parcel Number Baringo/Konoo/3018 measuring 0.03 HA was purchased on 15/02/2019 at a time when the Plaintiff and him had already separated hence she did not contribute to the purchase of the same. That land Parcel Number Baringo/Keturwo/2684 measuring 0.23HA was purchased on 24/08/2017 at a time when he and the Plaintiff had already separated hence she did not contribute and he does not have an Agreement for Sale with regard to that land Parcel.
22. The Defendant maintained that land Parcel Number Baringo/Keturwo/2940 measuring 1.53 Ha was Purchased on 2/04/2017 at a time when him and the Plaintiff had already separated hence she did not contribute and that land parcel Number Baringo/Keturwo/ 2941 measuring 0.96 Ha was purchased was purchased in the year 2018 at a time when him and the Plaintiff had already separated hence she did not contribute and that he does not have an Agreement for Sale with regard to that Land Parcel.
23. The Defendant further deposed that motor Vehicle Registration Number KCC 491 C in the make of ISUZU NQR66BUS/COACH was initially registered in the name of his wife Belvine Wanjiru Namu and Equity Bank Limited, that after Belvine Wanjiru Namu finished paying her loan with Equity Bank Limited she transferred Motor Vehicle Registration Number KCC 491 C to his name hence he holds the same in trust, that the transport business belongs to him and his wife Belvine Wanjiru Namu and that on 29/05/2024 they made a decision to sell Motor Vehicle Number KCC 491C as it had depreciated and it did not make business sense to have the Motor Vehicle as part of their fleet.
24. The Defendant deposed that motor Vehicle Registration Number KCF 808 Q in the make of ISUZU NQR a 33-seater bus was previously registered under Astrabell Limited a company where Belvine Wanjiru Namu and him were previously co-directors.
25. The Defendant added that motor Vehicle Registration Number KCF 808 Q was acquired using a loan with Family Bank Limited which was repaid using the joint efforts of his wife Belvine Wanjiru Namu and him and that after repaying the loan from Family Bank, they agreed to have the Motor Vehicle Registration Number KCF 808 Q registered in his name hence the same is held in trust in favor of his wife Belvine Wanjiru Namu. He maintained that motor Vehicle Registration Number KCA 708 E in the make of Isuzu Bus /Coach was purchased from a loan from NIC Bank on 29/03/2018 now NCBA Bank hence the same solely belonged to him however he sold the Motor Vehicle to James Nyarumi Nyandwao.
26. The Defendant maintained that although the Plaintiff and him separated in the year 2012, he goes to the house in Moi’s bridge from time to time to take care of his personal and farming businesses, that the Plaintiff and him have maintained a cordial relationship even after their separation in 2012 but they have never resumed cohabitation, that when he is visiting the Moi’s bridge house, he has access to a different part of the house from the Plaintiff, that the Plaintiff primarily resides in the house alone while he resides in Embakasi, Nairobi County together with the children from their marriage. That on 27/05/2023, he went to the Moi’s bridge house as he normally does at around 5:00 pm, that the Plaintiff on seeing him, left the house and did not return, that at around 8:00 pm, the area chief who was accompanied by police officers stormed into the compound of the house accusing him of demolishing the house, that at the time, he was seated outside the house hence, he allowed the police officers and the area chief to inspect the premises for purposes of confirming the Plaintiff's allegations and that they found that the Plaintiff had made false allegations against him as the house had not been demolished neither had anything around the house been vandalized.
27. The Defendant added that on 28/05/023 the Plaintiff brother Haron Kibusia, a retired police officer, together with his son Kiprop Kipchumba came to the house to inquire what had happened between the Plaintiff and him because she had informed them that he had evicted her from the house, that he gave them a brief narration of how the Plaintiff had fled the house when he arrived on 27/05/2023 for reasons unknown to him and later falsely accused him of evicting her and demolishing the house, that they agreed that the Plaintiff would return to her maiden home and they would have a subsequent meeting for purposes of enquiring why she was accusing him falsely while she had left the house on her own volition. That the Plaintiff’s brother informed him that he would convene the meeting wherein they would invite him and the elders from his side of the family and that he subsequently left Moi’s bridge on 3/06/2023 with no communication from the Plaintiff's family on the date of the proposed meeting.
28. That further, the Plaintiff had not returned so he bought a padlock, locked the house and left, that he could not leave the house unlocked because he did not know the whereabouts of the Plaintiff, that on 6/06/2023, he was shocked to learn that the Plaintiff had returned to the house and was breaking locks in the company of the area chief, that he was also shocked by the Plaintiff's actions in the events leading up to 3/06/2023 and he believes that her false allegations against him as evidenced above were calculated to persuade the local administration, law enforcers and the Court that he is a violent person for purposes of getting orders barring him from accessing the Moi’s bridge house.
29. That he is not privy to the events that may have taken place after 3/06/2023 when he left Moi’s bridge apart from the fact of the Plaintiff breaking the house locks in the company of the area chief on 6/06/2023 hence the allegations in paragraphs 6-10 are denied. He maintained that the Plaintiff cannot enjoy the house in Moi’s bridge to his exclusion as parties to the marriage are equal during the subsistence of the marriage and during the dissolution of the same, that the Moi’s bridge house and the Parcel of land wherein it is erected was bought by him and the Plaintiff did not contribute to the same and further that the Plaintiff is lying under oath as the events of 5/06/2023 did not happen as she alleges as he was not even in Moi’s bridge on the said date.
30. The Defendant maintained that he has no intention of vandalizing any of the property at Moi’s bridge with regard to the land where the matrimonial house is erected as the same was bought and was maintained using his money until when this suit was filed and the Plaintiff has never made any contribution either financially or otherwise.
31. The Defendant reiterated that the Plaintiff has never contributed or maintained any property under his name as he has demonstrated and hence she does not deserve any share. That the Plaintiff has continued to diminish the value of the matrimonial home as she has destroyed the doors and windows and also sold the household goods therein and it is therefore his prayer that this Court does make a declaration that he has 100% right to the matrimonial home so that he can take complete control of the same and that he does not hold any property in trust of the Plaintiff herein.
32. That the Plaintiff has had opportunities to develop herself as is evidenced by a loan she borrowed from SMEP DTM Limited wherein she listed the defendant’s assets as security which included his Agri Chopper Machine, Motor Cycle Number KMCF992B, sofas, gas cooker and cows without his consent and listed Andrew Kiprono Maiyo as her husband whilst they were still married. That she failed to repay the money she had borrowed but instead wasted the same resulting in him repaying the loan. According to the Defendant the Plaintiff is a very wasteful person who has continuously diminished the value of the matrimonial home and sold the household items.
33. The Defendant maintained that he has no intention of disposing his own properties that he has worked hard to acquire during his various employment with the National Police Service, Barclays Bank as then was and NIC Bank now NCBA and that since his separation from the Plaintiff, he is the parent with the actual custody of the children of the marriage two of whom are now adults and so there is no way he would make a decision that is to their detriment. That the Plaintiff has only demonstrated that he owns the properties listed in her Supporting Affidavit and Originating Summons but has failed to demonstrate her contribution to th acquisition of the same either directly and/or indirectly.
34. In the end, the Defendant urged the Court not grant a share of the properties owned by him and the others owned together with his current wife Belvine Wanjiru Namu as that will be allowing the Plaintiff to reap where she did not sow.
35. Subsequently, the matter proceeded by way of viva voce evidence. The plaintiff testified by herself and called4 witnesses and the defendant testified by himself and called no witnesses. A summary of their evidence is as hereunder.
The Plaintiff’s Evidence
36. The Plaintiff PW1 in her testimony stated that she is a housewife and that she does not work. She then adopted the Supporting Affidavit sworn on 25/4/2024 as her evidence in chief and the exhibits listed on her list of documents as amended dated 31/5/2024.
37. She testified that she contributed a lot to the acquisition of the property and so she also needs to get a share. She stated that when they got married, they had children and they bought the land and established the matrimonial home. She testified that she stayed at home, cultivated the land and sell the produce to get money to further develop the land. She testified that she tended to and watered the trees. It was her testimony that she is the one who planted them and watered them and tended them and even took care of the cattle some of which would be sold to pay school fees. She stated that she had to leave school as the defendant was at the University and that she did casual work as she tended to the farm and also took care of the children and that she would do the digging by hand and was not using a tractor, doing manual labour and using ‘chama’proceeds to assist the defendant. She told the Court that he was already a policeman at the college and that she joined him in Nairobi when they got the farm at Baringo and at Moi's Bridge. She stated that at Baringo they built a toilet and left it then concentrated on the Moi's Bridge farm. She told the Court that she left Nairobi and came to Moi's Bridge and handled the children, the workers, the ongoing construction, the farm and everything to do with the development of the farm as he wandered around in Nairobi coming only once in a while and then going back.
38. In cross-examination PW1, stated that she has nothing to show when she got married to the defendant. She testified that she was under age and in form 3. She stated that she did not contribute monetarily to the development of the matrimonial properties at Moi's Bridge. She stated that their homestead is on 3 ½ acres and that the trees are planted on half an Acre. She told the Court that the sale agreement the purchase was for one acre and that the seller is James Sirma and that the same is dated 4/3/2004. She further testified that the 2nd Sale Agreement is dated 29/4/2007 and that the seller is Sirma and the buyer is Noah and that the acreage is 0.4 Ha. She confirmed that that the Defendant Sale Agreement is dated 26/11/2007 and that the seller is Sirma and the buyer is Noah and that the same is 2.7 Acres. She stated that she lives on the farm and that the homestead is on one acre.
39. She clarified that the parcels are separated but it is one person who sold the entire parcel and that she cultivates the rest. She told the Court that she was not forced to marry the respondent. She confirmed that she has 4 children. The eldest is 24 years born in 1997, the 2nd was born in 2003, then the 3rd born in 2007 and the last one born in 2011. She told the Court that they did mediation in regard to the children and they were given to the defendant. She confirmed that she lives with their child George only and the rest of the children come to live with her during the holidays.
40. She reiterated that she is the one who developed and took care of the house, gave birth to and took care of the children. She stated that the Defendant's exhibit shows the door to the house at Moi's Bridge and that added that it is the defendant who damaged it. She stated that she had a salon but it collapsed. She told the Court that Noah supported her and set it up but she contributed to it too. In regard to the Defendant’s documents No. 60, She stated that she took the loan with household goods as security and that the goods were attached but they were brought back when the loan was paid and that she is the one who paid that loan with the SMEP. She conceded that the receipt of Co-operative Bank shows that the defendant paid and stated that the loan people went back and she paid again.
41. She testified that they lived together since 2023 when he removed her from the house and that there was a Divorce Cause in the lower Court but she did not know about the Divorce Cause since it is the defendant who filed it and that it is when he evicted her from the house when she was told he had divorced her and so she filed this Matrimonial Cause. She stated that she does not know if the defendant has another wife for reasons that he still used to go to their home at Moi’s Bridge until when he evicted her. She testified that she does not know Kiprop. She denied that they were estranged in 2012, as Defendant still used to go home. She stated that in 2012, they just disagreed and she went home and that Noah went for her and she went back.
42. She told Court that Kipchumba is her brother. She stated that they lived with Noah at Moi's Bridge and that even the property at Baringo he bought when he was her husband and she was his wife so even if she did not contribute to their purchase financially, she is entitled to a share of those properties and including the cars that she has listed for reasons that even if she does not know how he purchased them they were purchased when they were together.
43. PW2 was Barnabas Kimurgen Kiplagat Kemboi. He dopted his Witness statement dated on 15/4/2024 as his evidence in chief. He told the Court that him and the couple have been neighbours since 2004. He stated that he can testify on the loan because his wife too was a member of that SMEP Group and that if one asked for a loan, another member of the group would act as their guarantor and so all of the members took loans and they paid back though there was a time that the plaintiff had problems paying but she eventually paid. He told the Court that as per the records it is the plaintiff who paid back the loan. He stated that he also knows that she had salon but it did not last because she had a child to take care of as well as tend to the cows and so managing and supervising it must have been a challenge because of what she had in her hands and so she had employed a lady in the salon. He added that Moi’s Bridge is a one street town and the salon was at more in the back. He told the Court that PW1 and the Defendant came and they build on the land and that he was their immediate neighbour and he watched them grow. He reiterated that Joan is the one who took care of the farm, cultivated the land, reared the cows and chicken, took care of the children and all this is because the husband was working away from home and was not staying there but would come and stay for some 2-3 days and then go back.
44. In cross-examination PW2 stated that he met them before they bought his brother's farm and planted blue gum trees. He then produced the agreement of the sale of the land and added that he is the one who took the minutes of the meeting. He stated that present at the meeting were: Selina Koech, his mother, Sila Rotich, his uncle, William Cheruiyot, their neighbour and Reuben Cheruiyot, a family member and a friend of the defendant. He told the Court that the agreement is between his father, Wilson Koech and Noah the defendant. He added that the agreement indicated the names of all those that were present. He stated that the plaintiff Joan was also present and further confirmed that it is the defendant Noah who gave out Kshs. 90,000/= to his brother Jonah Ruto. He stated that he was a member of SMEP but he left after his wife came in as a member.
45. PW4 was Charles Munyengwo Komen, he adopted his Witness statement dated on 15/04/2024 as his evidence in chief. He stated that Joan is his cousin and that she got married at the stage of "Miaka kumi na kitu" and that she was in school then in Form 2 and the defendant Noah was in 2nd or 3rd year at the University. He stated that they were shocked at the divorce because Noah impregnated Joan as a young girl and left her at home to cultivate and work the land as Noah comes and sells the produce. He told the Court that Noah finally got a job as a policeman then he bought land, fenced, built a toilet as Joan remained at home as his manager. He stated that they were his neighbours then and that after a while both of them left for Nairobi. He testified that he later heard that they moved to Moi's Bridge but about that he did not know. It was his testim
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