HIGH COURT CIVIL APPEAL CASE NO. E010 OF 2023
RICHARD MWANIKI MUNENE…………...…………………APPELLANT
VERSUS
VIRGINIA NGIMA MURIITHI………………………….RESPONDENT
JUDGEMENT
1. Before this court for determination is the Memorandum of Appeal dated 22nd June 2023 filed by the Appellant RICHARD MWANIKI MUNENE seeking the following orders;-
“1. THAT the appeal be allowed.
2. THAT the court do direct on how LR NO. NYERI/
NDATHI/1507 ought to be shared if at all.
2. The Respondent VIRGINIA NGIMA MURIITHI opposed the appeal.
The matter was canvassed by way of written submissions. The Appellant filed the written submissions dated 7th January 2025 whilst the Respondent relied on her written submissions dated 8th January 2025.
BACKGROUND
3. The Appellant Richard Mwaniki Munene filed in the Nyeri Chief
Magistrates Court a Petition dated 28th August 2018 seeking the
following orders;-
“(a) THAT the marriage between the Petitioner, RICHARD
MWANIKI MUNENE and the Respondent VIRGINIA
NGIMA MURIITHI be dissolved.
(b) Costs of this cause.”
4. The Respondent Virginia Ngima Muriithi filed an Answer to Petition
dated 25th October 2018.
5. The Petition for divorce was heard in the lower court. Vide a judgment delivered on 13th September 2019, Hon. W. KAGENDO, Chief Magistrate (as she then was) made the following orders;-
“(a) The marriage between the Petitioner and the
Respondent be and is hereby dissolved and a decree nisi
to issue.
(b) Land parcel No. Nyeri/Ndathi/1507 measuring
approximately 0.60Ha or thereabout be held by the
Respondent in trust for the issues of the marriage.
(c) No orders as to costs.”
6. Following delivery of that judgment the Appellant filed a Notice of Motion dated 17th February 2020 seeking orders;-
“THAT the Court do review the orders granted by this court on the 13th September 2019 specifically order that LR Nyeri/Ndathi/1507 be held by the Respondent in trust for the issues of the marriage.”
7. This application for review was never heard by the trial court hence the present appeal. The Appellant filed the Memorandum of Appeal, which is premised upon the following grounds:-
“(1) The learned magistrate erred in law by failing to
address the issue of the matrimonial property in
the application for review in spite of material
placed before the court.
(2) The learned magistrate erred by directing that the
issue of matrimonial property i.e NYERI/NDATHI/
1507 could only be addressed in an appeal.
(3) The learned magistrate erred by failing to appreciate
that by declining to address the issue of matrimonial
property i.e LR NO. NYERI/NDATHI/1507 amounted
to disposing of the Appellant’s only asset land that he
owns.”
ANALYSIS AND DETERMINATION
8. I have carefully considered this memorandum of appeal as well as the record of Appeal filed on 9th October 2023.
9. This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and fact and come up with its own findings and conclusions [see PETERS -VS- SUNDAY POST LIMITED [1958] E.A 424]
10. In SELLE and Another -vs- ASSOCIATED MOTOR BOAT COMPANY LTD & Others [1968] 1 E.A 123 it was stated as follows:-
“………………….this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind [the fact] that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears that he has clearly failed on some point to take into account particular circumstances or probabilities materially to estimate the evidence.”
11. Likewise in GITOBU IMANYARA & 2 Others -vs- ATTORNEY GENERAL [2016] eKLR, the court of Appeal stated thus;-
“An appeal to this court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”
12. The Appellant does not take issue with the portion of the judgment
which allowed his Petition for divorce and dissolved the marriage
between the couple. Indeed I do note that the Respondent in her
Answer to Petition also prayed that the marriage between the couple
be dissolved.
13. From the evidence on record it is quite clear that in the minds of both
parties their marriage had irretrievably broken down. They both made
prayers to have the marriage dissolved. This was a couple who no
longer wished to remain in a marital union with each other. Thus the
trial court was quite correct to allow the petition for divorce.
14. The Appellant takes issue with the decision of the trial magistrate to
award/allocate the parcel of land known as LR NO. NYERI/NDATHI
1507 to the Respondent to hold in trust for the children of the
marriage.
15. It must be remembered that the petition before the lower court was a
‘Petition for divorce’. The Petitioner in his petition dated 28th
August 2018 sought to have the marriage between himself and the
Respondent dissolved. The Petitioner made no prayer for division of
Matrimonial property indeed the Appellant did not mention the suit
property at all in his petition.
16. The Respondent in her Answer to petition dated 25th October 2018
prayed to have the marriage dissolved. In said Answer the Respondent
also prayed to be put in possession of the suit land.
17. It was not in order for the Respondent to make substantive prayers in
her answer to petition. If the Respondent wanted to have the suit
property allocated to her she ought to have filed a substantive suit for
division of matrimonial property to which the Appellant would have
been granted an opportunity to respond.
18. For the Respondent to include in her answer to Petition a prayer for
possession of the suit land amounts to litigation by ambush which the
lower court ought not to have countenanced. The Appellant had no
opportunity to respond to this prayer, therefore he was not heard on the
issue of the division of the said property.
19. It is my view that the learned trial magistrate erred in determining a
matter for division of matrimonial property under cover of a petition
for divorce. As stated earlier these are two separate and distinctive
issues. The Magistrate ought to have rendered herself only on the
question of dissolution of the marriage and advised the Respondent
to file a separate suit to claim possession of the suit property.
20. For the above reasons I find merit in this appeal. I allow the same and
make the following orders;-
(i) Prayer (a) of the judgement delivered on 13th September 2019 is confirmed and upheld.
(ii) Prayer (b) of the judgment delivered by Hon. W. Kagendo (as she then was) is hereby set aside.
(iii) The Respondent is at liberty to file a substantive suit for division of matrimonial property.
(iv) Each side will meet their own costs for this appeal.
Dated in Nyeri this 25th day of April 2025.