HIGH COURT CIVIL CASE NO. 12 OF 2019
MARGARET WAHITO GITHINJI…………………….………..PLAINTIFF
VERSUS
LAWRENCE GITHINJI NJOGU……………………………..DEFENDANT
JUDGEMENT
- Before this Court for determination is the Originating Summons dated 27th June, 2019 by which the Plaintiff MARGARET WAHITO GITHINJI sought the following orders:-
- (a) THAT a declaration be made that the properties
listed below are matrimonial properties to be distributed between the parties as hereunder:
- THAT the Plaintiff Margaret Wahito Githinji shall get the property known as MUHITO/GATURIA/1035 (0.81 hectares) and MUHITO/MUYU/868 (1.21 hectares), both registered in her name on 30th December 1992;
(b) THAT the Respondent Lawrence Githinji Njogu shall
get the following properties;
- MUHITO/THITHA/554(1.21hectares) already registered in his name as at 7th July 1993.
- MUHITO/GATURIA/1177(0.364hectares) REGISTERED in his name on 13th April 1993.
- MUHITO/MUYU/917(0.42 hectares) beneficial interest by virtue of purchase from Mutaihi Kinyua, registered owner.
- PLOT No. 209/11358/191 in which he has a beneficial interest by bequest through his late father.
(v) Shares in various companies.
2. THAT the defendant to hand over the original titles to and actual possession of, properties known as MUHITO/GATURIA/1035 and MUHITO/MUYU/868 to the defendant in default of which he, his agents, employee’s and assigns shall be evicted therefrom.
3. Any other order this Honourable Court may deem just and appropriate.
4. Costs to the plaintiff.”
2. The Summons was premised upon the Marriage Act, the Matrimonial Properties Act and all enabling provisions of the law and was supported by the Affidavit of even date as well as the Further/Supplementary Affidavit dated 4th April 2023, both sworn by the plaintiff.
3. The Respondent LAWRENCE GITHINJI opposed the application through the Replying Affidavit dated 13th March 2023.
4. The matter was referred to Court Annexed Mediation (CAM) but the parties were unable to reach a settlement. As such the matter proceeded for hearing before this court by way of Vive Voce hearing. Each party called only one witness in support of their respective cases.
BACKGROUND
5. The Plaintiff and the Respondent herein got married to each other under Kikuyu Customary Law in the year 1973. The marriage was later formalized on 10th October 1994. The union was blessed by six (6) issues. The couple later separated in the year 1996 and eventually divorced.
6. The Plaintiff avers that during the course of the marriage the couple acquired certain properties. She prays for a declaration that these properties constitute matrimonial property. The Plaintiff prays that the properties known as LR Muhito/Gaturia/1035 comprising 0.81 hectares and LR Muhito/Muyu/868 comprising 2.18 hectares which she states was the matrimonial home which properties were both gifted to her by the Respondent and which are both registered in her name be allocated absolutely to herself.
7. The Plaintiff further prays that the following properties namely
(i) Muhito/Thiha/554 comprising 1.21 hectares registered in the name of the Respondent.
(ii) Muhito/Gaturia/1177 comprising 0.364 hectares registered in the name of the Respondent.
(iii) Muhito/Muyu/917 comprising 0.42 hectares.
(iv) Plot No. 209/11358/191 Juja Road Mathare in Nairobi
County.
- Shares in various companies in Kenya
may all be allocated to the Respondent absolutely.
8. The Plaintiff states that the Respondent chased her and their six (6) children away from the matrimonial home, leaving her to single handedly provide for the needs of the children. That the Respondent has now re-married one SUSAN WANGARE whom he cohabits with in the matrimonial home. The plaintiff prays that the court allocate to her, her rightful share of the matrimonial property.
9. The Respondent in his reply concedes that the plaintiff is his former wife. The Respondent further concedes that he did transfer to the plaintiff certain properties but claims that he did so in order to evade fraudsters. He now demands that the plaintiff transfer the said properties back to him.
10. The Respondent asserts that he acquired the named properties single handedly without any contribution from the plaintiff. That some of the listed properties are an inheritance from his father’s estate and others he holds in trust for his siblings. The Respondent denies knowledge of the property known as MUHITO/MUYU/917 which he says is not registered in his name. Finally the Respondent urges the court to dismiss this Summons in its entirety.
11. Following the oral hearing the parties were invited to file and exchange written submissions. The plaintiff filed the written submissions dated 8th August 2024, whilst the Respondent relied on his written submission dated 15th August 2024.
ANALYSIS AND DETERMINATION
12. I have considered the Summons before this court, the reply filed thereto, evidence on record as well as the written submissions filed by both parties.
13. It is not in dispute and in fact both parties concede that they were once married to each other. The parties also confirm that their union resulted in the birth of six (6) children.
14. The couple separated in the year 1996 when the Plaintiff left the Matrimonial home. She states that he Respondent threw her out of the home together with the children.
15. The Plaintiff thereafter filed a petition for Divorce being Nyeri Divorce Cause No. 24 of 2000, which resulted in the dissolution of the marriage vide the Decree Nisi issued on 16th December 2016 (Annexture ‘MWG ‘1’ to the Supporting Affidavit dated 27th June 2019.) A Decree Absolute was later issued. Therefore the marriage between the Plaintiff and the Respondent now stands dissolved.
16. The issues which arise for determination in this case are;-
(1) Are the listed properties matrimonial property.
(2) What share (if any) of the said properties is the Plaintiff
entitled to.
Matrimonial Property
17. The Plaintiff has brought this suit under the Matrimonial Property Act, seeking division of what she terms ‘matrimonial property’
18. Section 6(1) of the Matrimonial Property Act 2013, defines ‘Matrimonial Property’ in the following terms;-
“6 (1) For the purpose of this Act, Matrimonial Property
means
- The matrimonial home or homes.
- Household goods and effects in the matrimonial home or
homes.
- Any other immovable and movable property jointly
owned/and acquired during the Subsistence of the marriage.” [Own emphasis]
19. In the case of Triv -vs- FMC [2018] eKLR the court stated that
“……………………for property to qualify as matrimonial property it ought to have been acquired during the subsistence of the marriage between the parties unless otherwise agreed between them that such property would not form part of the matrimonial property [own emphasis]
20. As stated earlier it has been conceded by both parties that they commenced cohabitation in the year 1975. They finally divorced through a Decree Nisi issued in June 2017. As such the parties were in a lawful marital union from 1975 to 2017. Therefore properties acquired during this period would be deemed to be matrimonial property.
21. The properties under consideration in this cause are the following;-
(i) Muhito/Gaturia/1035 – which was on 30th December 1992 registered in the name of the Plaintiff as sole proprietor. A copy of the Title Deed and a certificate of official search dated 28th May 2009 (see Annexture MGW 2’) are annexed to the originating summons.
(ii) Muhito/Muyu/868 – which was also on 30th December 1992 registered in the name of the Plaintiff as sole proprietor. A copy of the Title Deed and Official Search dated 28th May 2009 are annexed to the plaintiffs supporting affidavit.
22. The above two properties having been registered in the name of the Plaintiff were both acquired during the subsistence of the marriage and therefore constitute matrimonial property.
23. In her Summons the Plaintiff mentions the following properties which she states are registered in the name of the Respondent. The plaintiff in her pleadings made no claim over said properties and suggested that they be allocated to the Respondent.
(iii) Muhito/Thiha/554 – was registered in the name of the Respondent as absolute proprietor on 7th July 1993. A copy of the Title Documents appear as Annexture MGW3’
(iv) Muhito/Gaturia/1177 – which the Plaintiff claims was registered in the name of the Respondent on 13th April 1994. A copy of the ownership document annexed to the plaintiffs supporting Affidavit indicates that this property is registered in the name of the Respondent absolutely.
(v) Muhito/Muyu/917 – which the Plaintiff claims that the Respondent purchased from one Mutahi Kinyua.
24. However the Respondent categorically denies any knowledge or claim over this property known as Muhito/Muyu/917. No sale Agreement or transfer has been annexed to prove this claim that the Respondent purchased this property during the marriage. Moreover the Certificate of Official Search dated 13th September indicates that the said property is still registered to one Mutahi Kinyua. There is no evidence to prove that said plot belongs to the Respondent and as such the same cannot be considered to be matrimonial property.
(vi) Plot No. 209/11358/191 Juja Road. A commercial plot
which the plaintiff avers that the Respondents inherited from his late
father. No ownership document in respect of the property has been
annexed. No Certificate of Confirmed Grant indicating to that said
property was allocated to the Respondent, was produced.
25. All that the Plaintiff has annexed is a letter dated 27th May 2010 purportedly written by the Respondents Advocate regarding payment of rent by tenants in the plot. This letter cannot be deemed as proof of ownership by the Respondent of said property. I therefore exclude this plot in Juja Road as Matrimonial Property.
(vii) Shares in various companies in Kenya – this claim is far too
vague. The Respondent has not specified which companies she is
referring to nor has she indicated how many shares the Respondent
holds in each company. No copy of form C12 relating to any company
was produced in court to prove that the Respondent was a
shareholder. Accordingly I exclude this reference to company shares
from matrimonial property.
26. Based on the above analysis the only properties which I find were acquired by the parties during the subsistence of their marriage and which qualify as Matrimonial property are the following;-
(a) Muhito/Gaturia/1035
(b) Muhito/Muyu/868
(c) Muhito/Thiha/554
(d) Muhito/Gaturia/1177
27. The other properties listed by the Plaintiff in her Summons are excluded as they do not qualify as matrimonial properties.
28. The next question to be determined is what share if any of the four (4) matrimonial properties the plaintiff entitled to.
29. Regarding Muhito/Gaturia/1035 and Muhito/Muyu/868, the Plaintiff asserts that the Plaintiff gave and transferred the two properties to her as gifts absolutely. The plaintiff told the court that Muhito/Muyu/868 was the couples matrimonial home. That she lived there with the children whilst the defendant who was working with Kenya National Assurance Company resided in Nairobi.
30. The Plaintiff in her evidence told the court that when they first moved to that plot it was empty. They put up a mud house and later built a stone house. The plaintiff states that she planted coffee trees on the land and carried out dairy and poultry farming from which she derived an income to provide for the needs of the family.
31. On his part in respect to those two parcels of land the Respondent claims that Muhito/Muyu/868 belongs to his late father. He confirms he is currently residing on that property. The Respondent stated that he is farming on Muhito/Gaturia/1035 where he grows coffee, maize, beans etc. That he purchased Plot 1035 single handedly by taking a loan.
32. The Respondent admits that the two parcels of land are now registered in the name of the plaintiff as absolute proprietor. He states that he transferred the two plots to her as he feared they could be attached due to a case he had at his place of work.
33. As a general rule when determining the question of division of matrimonial property, the court will consider what contributions either direct (financial) or indirect (non-financial) that each party has made towards the acquisition of the property in question.
34. Therefore in determining what share (if any) the plaintiff would have in the two properties the court would need to assess whether the plaintiff has proved the level of her financial and/or non-financial contribution toward the acquisition of this property.
35. In Federation Women Lawyers Kenya (FIDA) -VS- Attorney General & another [2018] eKLR the court stated that:-
“The law recognizes equal worth and equal importance of the parties in marriage. Thus the beneficial share of each spouse on the division of matrimonial property stands in Kenya ultimately depends on the parties proven respective proportions of financial contribution either direct or indirect towards the acquisition of the property. First, the Act recognizes monetary and non-monetary contribution which is clearly defined. By providing that a party walks out with his or her entitlement based on his or her contribution, the section entrenches the principle of equality in marriage.” [own emphasis]
36. This issue of how matrimonial properties should be divided was conclusively settled by the Supreme Court of Kenya in the case of JOSEPH OMBOGI OGENTOTO -vs- MARTHA BOSIBORI OGENTOTO Petition No. 11 of 2020 where it was held as follows:
“….we also find that Article 45(3) acts as a means of providing for equality as at the time of dissolution of marriage but such equality can only mean that each party is entitled to their fair share of matrimonial property and no more. Nowhere in the constitution do we find any suggestion that a marriage between parties automatically results in common ownership or co-ownership of property (hence vesting of property rights) and Article 45(3) was not designed of the purpose of enabling this court to pass property rights from one spouse to another by fact of marriage only…
….. our view is that, while Article 45(3) deals with equality of the fundamental rights of spouses during and after dissolution of marriage, we must reiterate that equality does not mean the re-distribution of proprietary rights at the dissolution of a marriage. Neither does out reading of this provision lead to the assumption that spouses are automatically entitled to a 50% share by fact of being married…..
…it is our finding that the stated quality under Article 45(3) means that the courts are to ensure that at the dissolution of a marriage, each party to a marriage gets a fair share of the matrimonial property based on their contribution. This is best done be considering the respective contribution of each party to ensure no party is unfairly denied what they deserve as well as ensuring that no party is unfairly given more than what he or she contributed…
………Therefore, in the event that a marriage breaks down the function of any court is to make a fair and equitable division of the acquired matrimonial property guided by the provisions of Article 45(3) of the Constitution. To hold that Article 45(3) has the meaning of declaring that property should be automatically shared at the ratio of 50:50 would bring huge difficulties within marriages and Tuiyot, J (as he then was) has explained why above. Nothing the changing times and the norms in our society now, such a finding would encourage some parties to only enter into marriages, comfortably subsist in the marriage without making any monetary or non-monetary contribution, proceed to have the marriage dissolved then wait to be automatically given 50% of the marital property. That could not have been the intention of our law on the subject.” [own emphasis]
37. Based on the above cited case law and a plethora of other decided cases it is clear that despite the constitutional requirement that parties to a marital union shall have equal rights, each party must be able to prove either monetary or non-monetary contribution in order to merit entitlement to a share of matrimonial property.
38. Firstly whereas the Respondent insists that Plot 868 belonged to his late father, he has not produced any document to prove that this claim is true. If Plot 868 truly belonged to the Respondents father, then how is it that the Title Document shows that said property is registered in the name of the Plaintiff alone. The Respondent has not demonstrated how this property moved from his father to himself and then to finally to the plaintiff.
39. Further the Respondent has not denied that Plot 868 was the matrimonial home where the plaintiff resided with the children of the marriage. Yet the Respondent is now occupying that property to the exclusion of the plaintiff and their children. The Respondent has not denied the plaintiffs claim that when the family moved into the property it was vacant. That they first put up a mud house and then put up a stone house. All this time the plaintiff resided in that property with the children whilst the Respondent resided in Nairobi where he was working.
40. Regarding Plot 1035 the Respondent asserts that he single handedly purchased this property by taking out loans. The Respondent has not availed to the court any evidence to show how much he paid for the property, how much of a loan he acquired and from which bank or financial institution. There is therefore no proof singlehandedly acquired this Plot 1035.
41. The Plaintiff told the court that the Respondent voluntarily transferred to her Plots 868 and 1035 as gifts during the course of the marriage. Indeed the Title documents for the two (2) parcels of land show that both are registered in the name of the plaintiff alone.
42. The Respondent in his evidence concedes that he did transfer Plot 1035 and Plot 868 to the Plaintiff. Whereas in his Replying Affidavit the Respondent avers that he transferred the two plots to his wife to scuttle attempts to defraud him he later changes tack and in his evidence states that he made the transfers to the Plaintiff in order to protect the two properties from being confiscated due to problems which he was facing at his place of work.
43. The Respondent has not expounded on who was trying to defraud him and in what manner. There is no evidence that the Respondent made any report to police that people were out to defraud him.
44. Neither has the Respondent elaborated on what problems he had at his workplace which caused him to transfer the two properties to the plaintiff. The Respondent stated that he transferred the two properties to the plaintiff to “conceal” the said properties to evade the same being auctioned due to a court case. The Respondent claims that this was done with agreement with the local chief. There is no document signed by the parties before the local chief explaining the reason for this transfer. The local chief was not called to testify by the Respondent.
45. The fact that the Respondent gave two different reasons for the transfers make court doubt that he is being truthful. In the absence of any evidence availed by the Respondent in support of either of the stories he has advanced as the reason why he transferred the two properties to the plaintiff, I am inclined to accept the evidence of the plaintiff that the transfers of Plot 1035 and Plot 868 to her were as a ‘gift’ from the Respondent who at the time was her husband.
46. In RE ESTATE OF GEDION MANTHI NZIOKA [2015] eKLR the court relied on Halysburys Laws of England 4th Edition Vol 20(1), which at paragraph 32/51 states that
“If a gift is to be valid the donor must have done everything which according to the nature of the property comprised in the gift was necessary to be done by whom in order to transfer the property and which it was in his power to do.”
47. In this case the Respondent completed the transfer of the gift to the plaintiff as the property is now registered in the plaintiff’s name alone.
48. In RE ESTATE OF RUTH NYAKANINI RUKWARO (Deceased) [2016] eKLR the court held that for a gift intervivos to be valid, there must be proof that the person making the transfer actively intends to make a gift, that the donee accepts and that there is delivery of the property by transfer by the drawer to the drawee.
49. In this case the gift was given and accepted. There was no agreement that it was to be returned to the Respondent. The transfer of both properties was done in the year 1992. This was during the subsistence of the couples marriage.
50. In REGISTERED TRUSTEES ANGLICAN CHURCH OF KENYA OF MBEERE DIOCESE -VS- DAVID WAWERU NJOROGE [2007] the court held that a gift becomes effective upon execution and delivery of transfer and cannot be revoked thereafter.
51. The Respondent at Paragraph 11 of his Replying Affidavit claimed that there existed a court order directing the plaintiff to transfer plots 868 and 1035 back to him. The Respondent has annexed a copy of proceedings undertaken before the Land Disputes Tribunal (Annexture LGN 1’) where the elders directed that the plaintiff returned the said parcels of land to the Respondent.
52. These are not a court orders as alleged by the Respondent. They are merely proceedings of a Land Tribunal which can only be deemed enforceable once the orders are adopted by a court of law. There is nothing to show that this decision of the elders was ever adopted by a court of law. In the circumstances that decision is not binding on this court.
53. The fact remains that these properties were infact transferred to the plaintiff. What is the effect of such transfer on division of matrimonial property?
54. Section 15 of the Matrimonial Property Act provides as follows
“Where a spouse gives any property to the other spouse as a gift during the subsistence of the marriage, there shall be a rebuttable presumption that the property thereafter belongs absolutely to the recipient. [own emphasis]
55. What constitutes a gift Black Law Dictionary (Edition 10th), defines a ‘gift’ as ‘the voluntary transfer of property to another without compensation.’
56. According to Halsbury’s law of England 3rd Edition volume 18, a gift is defined as:
“the transfer of any property from one person to another……….. It is an act where something is voluntarily transferred from the true possessor to another person with the full intention that they shall not return to the donor and with the full intention on the part of the receiver to retain the thing entirely as his own without returning it to the giver.
At no time did the Respondent suggest that the plaintiff was required to transfer the property back to him.
57. From the above description, three elements arise as conditions precedent before a gift can be said to have effectively passed. Firstly, the person making the transfer (donor) must willingly make the transfer, secondly, the recipient (donee) must accept the gift made to him or her and thirdly, the gift is transferred and accepted directly without returning it back to the giver.
58. This position was further espoused by Hon. Justice J. Nyamweya (as she then was) in the matter of the estate of the late Gideon Manthi Nzioka (deceased) (supra) where she held that:
“where a gift rests merely in promise, whether written or oral, or in unfulfilled intention, it is incomplete and imperfect, and he court will not compel the intending donor or those claiming under him, to complete and perfect it, except in circumstances where the donor’s subsequent conduct gives the done a right to enforce on the promise. A promise made by deed is however binding even though it is made without consideration. If a gift is to be valid, the donor must have done everything which according to the nature of the property comprised in the gift, was necessary to be done by him in order to transfer the property and which it was in his power to do.” [own emphasis]
59. Apparently in this case the Respondent did fulfil all that was required to complete the transfer of the two properties to the donee (Plaintiff). The properties are now both registered in the name of the plaintiff.
60. In the case of FRANCIS NJOROGE -VS- VIRGINIA WANJIKU NJOROGE [2009] eKLR, the Court stated that
“Division of matrimonial property must be decided after weighing the peculiar circumstances of each case.”
61. In M -vs- M, Civil Appeal No. 74 of 2002 the court of appeal recognized the fact that a person who is gifted should be allowed to own the gift. In that case the court stated as follows;-
“……..property inherited and gifted to one spouse before marriage, and where property exists in the same condition as it was inherited or gifted, no problem arise. The spouse to whom it was gifted should be allowed to retain it. Problems however arise where improvements are made using matrimonial resources and then the property ceases to be in its original form and increases in value.”
62. With regard to the property known as MUHITO/MUYU/868 both parties confirm that this was the matrimonial home of the couple where they lived and raised their family. The plaintiff and the Respondent both state that when the land was acquired it was vacant. They put up a mud house and then put up a stone house where the family resided. Whilst the Respondent resided in Nairobi where he was working the plaintiff lived with the children in this matrimonial home and carried out farming activities from which she derived income to provide for the needs of the children. Indeed this is a very common scenario in many Kenyan families.
63. The Plot 868 was therefore the ‘Matrimonial home’ which by virtue of Section 6(1) of the Matrimonial Property Act 2013 constitutes matrimonial property.
64. It is pertinent to note that this property was transferred to the plaintiff on 30th December 1992. The couple did not divorce until 27th June 2019. Therefore for a period of twenty seven (27) years after transfer of the said property to the plaintiff, the couple continued to utilize the same as the family home. The fact that after the Respondent transferred the property to the plaintiff he did, with the plaintiff’s acquiescence continue to live there as her husband and father to their children in my view amounts to a rebuttal of the presumption that the property was to belong to the plaintiff absolutely for her own exclusive possession and use.
65. I therefore find that the transfer of Muhito/Muyu/868 by the Respondent to the plaintiff was not an absolute gift. The Respondent transferred title in the matrimonial home to his then wife with the intention that the property continue to be used as the family home and indeed for the next twenty seven (27) years the couple continued to occupy Plot 868 as a family with their children.
66. Following my finding that Plot 868 was the matrimonial home and therefore constituted matrimonial property the court only needs to determine what share (if any) in this property the plaintiff is entitled to.
67. The Respondent submitted that Plot 868 ought to be allocated to him absolutely as he claims the same was ancestral property inherited from his father. This court has rejected that claim. No evidence was produced by the Respondent to show that Plot 868 ever belonged to his father.
68. The Respondent further claims that he developed Plot 868 singlehandedly by taking out loan facilities which he alone repaid. Once again I reject this claim as the Respondent has not produced any evidence of his having secured a loan facility from any financial institution nor is there any documentary evidence to prove that the Respondent single handedly repaid a loan facility used to develop this property.
69. The parties both concede that whilst the Respondents lived and worked in Nairobi, the plaintiff remained in the rural home with their six children. That the plaintiff carried out farming activities e.g coffee farming, poultry farming etc from which she derived income used to feed and maintain the children.
70. In the premises it is clear that the plaintiff made indirect financial contribution towards the acquisition and development of the family home. As a wife she provided companionship to the Respondent. The plaintiff played the role of parent to the children when the Respondent was away working. Indeed the presence of the plaintiff in the matrimonial home provided the Respondent with the stability and peace of mind needed and enabled the Respondent to pursue a career outside of the home in a different city.
71. Neither the plaintiff nor the Respondent has provided documentary evidence of their financial contribution towards the acquisition and/or development of Plot 868. They acted in unison as a couple to develop the home and to raise their children there. In the circumstances I find and hold that the plaintiff is entitled to a fifty per cent (50%) share in Muhito/Muyu/868.
72. Regarding the parcel of land known as Muhito/Gaturia/1035 the situation is different. This was not he matrimonial home where the family resided. By all accounts it was a vacant undeveloped property used as farmland.
73. The Respondent has not presented any evidence to the court to rebut the presumption in Section 15 that he intended to gift the land to the plaintiff absolutely. Accordingly by dint of Section 15 I find that this property belong absolutely to the plaintiff. It does not constitute matrimonial property and is therefore not available for distribution. I find and hold that Muhito/Gaturia/1035 having been gifted to the Plaintiff and the gift inter vivos having been perfected by the transfer of the said parcel of land to the plaintiff absolutely that property belong to the plaintiff and is therefore allocated to her entirely.
74. The next question the Court needs to answer is whether the plaintiff is entitled to a share in the remaining properties being Muhito/Thitha/554 and Muhito/Gaturia/1177.
75. Regarding Muhito Gaturia/1177 and 554 the plaintiff has annexed to her supporting Affidavit copies of the Title document (see page (6) indicating that these properties are both registered in the name of Lawrence Githinji Njogu (the Respondent herein).
76. The Respondent told the court that he purchased the two properties during the subsistence of the couple’s marriage. He claims that he took a loan to finance the purchase. The Respondent has not availed any proof by way of loan applications bank documents to prove that he took a loan. No Sale Agreement in respect of the two properties has been produced. No evidence to show that the Respondent was servicing any loan has been produced. In short there is nothing to show that the Respondent took out or was servicing any loan for the acquisition of said properties.
77. On her part the Plaintiff appears to make no claim over the two properties. She stated that she is willing to cede the two to the Respondent. It is trite law that parties are bound by their pleadings.
78. In the case of INDEPENDENT ELECTORAL and BOUNDARIES COMISSION -VS- STEPHEN MUTINDA MULE & 3 Others [2014] eKLR the court held that
“……….it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the pleadings goes to no issue and must be disregarded………” The fact that parties are not allowed to depart from their pleadings is on the authorities basic as this enables the parties to prepare their evidence on the issues as joined and avoid surprises by which no opportunity is given to the other party to meet the new situation.”
79. Therefore the plaintiff cannot seek through her evidence or her submission to deviate from her pleadings (summons and supporting Affidavit) in which she ceded all and any interest in the properties known as Muhito/Gaturia/1177 and Muhito/Muyu/917 to the Respondent.
80. Finally this summons is partially successful and this court makes the following orders:-
(1) A declaration is hereby issued that the following properties constitute matrimonial property.
(i) MUHITO/MUYU/868
(ii) MUHITO/THIHA/554
(iii) MUHITO/GATURIA/1177
- The property known as MUHITO/GATURIA/1035 which was gifted by the Respondent to the plaintiff and which is registered in the sole name of the plaintiff is not matrimonial property.
- The property known as MUHITO/GATURIA/1035 is allocated to the plaintiff absolutely.
- The properties known as MUHITO/THIHA/554 and MUHITO/GATURIA/1177 are allocated to the Respondent absolutely.
- The property known as MUHITO/MUYU/868 is to be distributed between the plaintiff and the Respondent at the ratio of 50:50 i.e fifty percent (50%) each with an option for either party to buy out the other’s interest in the said property.
- In the alternative the property known as MUHITO/MUYU/868 to be valued and sold at the best obtainable price. The proceeds of sale shall then be distributed between the parties at 50:50 ratio.
- This being a family matter each party is to meet their own costs.
Dated in Nyeri this 8th day of November, 2024