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The Plaintiff’s Further Amended Originating Summons is dated 19 th June 2021 and is presented under Order 37 rules 11, 12 and 14 of the Civil Procedure Rules, Section 3A of the Civil procedure Act and Section 7 of the Matrimonial Property Act. It is stated that he is the beneficiary of a trust and seeks the determination of the following questions-
Whether the Plaintiff is entitled to a declaration that HOUSE NO. 70 DAGORETTI ROAD KAREN erected on I.R NO. 5686/1 registered as I.R NO. 5686/12 is matrimonial property jointly acquired and owned by the Plaintiff and the Defendant and should only be dealt with, appropriated, charged for financed, rented or leased to a third party, sold or otherwise disposed of in a manner acceptable to and compatible with the interests and rights of the Plaintiff herein.
Whether the Plaintiff is entitled to a declaration that HOUSE NO. 70 DAGORETTI ROAD KAREN erected on I.R NO. 5686/1 registered as I.R NO. 5686/12 is matrimonial property jointly acquired and owned by the Plaintiff and the Defendant as is registered and held by the Defendant through her shareholding in Goodison Fifty-Nine Limited (CPR/2010/25150) in trust for the Plaintiff and the issues of the marriage.
Whether the Plaintiff is entitled to a declaration that a trust was constructed or resulted in respect of HOUSE NO. 70 DAGORETTI ROAD KAREN erected on I.R NO. 5686/1 registered as I.R NO. 5686/12 by virtue of the marriage between the Plaintiff and the Defendant.
Whether the Plaintiff is entitled to a declaration that a trust was constructed or resulted in respect of KILIFI Land Reference NO. 1288/18 registered in Volume L.T. 37 folio 217/a, file No. 8734 by virtue of the marriage between the Plaintiff and the Defendant.
The Plaintiff be declared to be the absolute owner of KILIFI Land Reference No. 12888/18 registered in Volume L.T. 37 folio 217 /A, file No. 8734
Kilifi Land Reference No. 12888/18 registered in Volume L.T. 37 folio 217 /A, file No. 8734 be transferred to Sam Wellington Horner of Kenyan Passport No. AK0193612 and Thomas Jack Horner of Kenyan Passport No. AK 01882041
Whether an order should issue declaring that 50 % (or such other or higher proportion) of HOUSE NO. 70 DAGORETTI ROAD KAREN erected on I.R NO. 5686/1 registered as I.R NO. 5686/12 aforesaid, is held by the Defendant in trust for the beneficial interest of the Plaintiff.
Whether the said HOUSE NO. 70 DAGORETTI ROAD KAREN erected on I.R NO. 5686/1 registered as I.R NO. 5686/12 should be shared equally and/or be sold and the net proceeds be shared equally between the Plaintiff and the Defendant or in such other manner as the court may deem just.
Whether the Plaintiff is entitled to rental incomes in HOUSE NO. 70 DAGORETTI ROAD KAREN erected on I.R NO. 5686/1 registered as I.R NO. 5686/12
Whether the Deputy Registrar ought to be empowered to sign any documents that the Defendant may refuse to sign.
Whether in the alternative and without prejudice to the foregoing, the Plaintiff is entitled to an order that the Defendant /respondent and the interested party are jointly and severally liable to the plaintiff for the sum of Kshs. 45,552,218.40/= being the cost of the improvements made by the plaintiff on property I.R NO. 5686/1 registered as I.R NO. 5686/12 on which HOUSE NO. 70 DAGORETTI ROAD KAREN is erected?
Whether the Plaintiff is entitled to an order that the Defendant pays costs of this suit.
Whether the Plaintiff is entitled to any other relief that this Honourable Court may deem fit to grant in the circumstances.
The Summons proceeded by way of Viva Voce Evidence.
PLAINTIFF’S EVIDENCE.
PW1- Samson Kaduki, he operates a business under the names Steel and Furniture works, specialising in furniture making, wardrobe setups, including repair and upgrade of the same, unique timber works and painting works. He met the Plaintiff sometime in 2008 and he was contracted by the plaintiff to perform various chores on the new house at Karen, Dagoretti Road, House No.70 between 2007 and 2016.
The works he undertook included
Upgrading the boys’ bathroom (repanelling splash back and walls, new mahogany counter)
Upgrading verandah, including replacement of damaged floor boards and pest control security;
Making of book cases and cupboard underneath stairs
Conversion of attic into walk- in wardrobe with shelf, portioning with floor to ceiling shoe racks;
Conversion of boys’ attics with shelving and beds and mattresses
Attic conversion with large windows, structural changes to the roof and ceiling adjustments
Supply and installation of roll back hidden doors
Extension of quad bike shed
and general annual painting works and property improvements.
He was paid a total of Kshs 1,247,399 as per schedule attached some of the payments were by Petty Cash and the others by cheque, through his bank account. He was paid by the Plaintiff. The defendant supervised him while he did the work.
On cross –examination he stated that he recorded his statement in 2021 and therefore relied on documents provided by the Plaintiff’s former accountant. He was instructed by the plaintiff and that is how he concluded that the defendant was the owner of the house. He carried out the work between 2006 and 2007; and additional work between 2006 and 2017. He was introduced to the plaintiff by his mother in law, Janet.
On re-examination he stated he did not know Goodison Fifty-Nine Limited and the payment by cheque were made by Distribution Communication Systems Limited. He wrote the statement in 2021 when he was requested to write. The applicant asked him to do the works. He concluded that the house belongs to the applicant. He doesn’t know where the applicant got money to pay him. The Respondent asked him to do some work. When he was doing the construction, the Respondent was always at home supervising him; the applicant was away.
In re-examination , he stated that the certified bank statements have details of the cheques. He made some furniture for Janet for a different house.
PW2, Beatrice Wanjeri, she is a long-term employee of the plaintiff, having worked as the house help. She had positive things to say about the Plaintiff and not so positive about the defendant. It is the plaintiff who paid her salary through his company, Distribution Communication Systems Limited. He was close to the children of the marriage, unlike the defendant who spent long hours away from home either having late night drinks or having lunch parties with her friends. The Plaintiff bought her a parcel of land at Ngong/ Ngong/ 34685. She lives there and has maintained contact with the plaintiff. The parcel of land is registered in the defendant’s name, she is yet to transfer it to her.
The plaintiff constructed the house and they moved in between 2004 and 2005
On cross-examination , she stated that she worked for the Applicant and the Respondent from 1995 to 2016. In 1995, the couple were living in the same compound in Karen but in a different house. In 2004, the applicant moved to a house in the same compound that was constructed by him. The applicant supervised the construction and paid the workers. Sometimes the applicant and the respondent supervised together. The applicant bought her a property in Ngong where she lives with her family.
She knew that Janet was the mother in law to the Plaintiff and mother to the defendant. She did not know where the defendant got the money to pay for the construction. She does not know if she supported the Applicant. She doesn’t know where Simon got the money.
PW3, Michael Mwangi, he is a businessman with speciality in civil works, telecommunication sites constructions and general building works. He met the plaintiff in 2007. He undertook supervisory works during the construction of a swimming pool at the new house in Karen, Dagoretti Road, House No. 70 sometime in 2014. He attached a schedule as proof of payment. It was his evidence that it was the Plaintiff who paid for the work. The defendant supervised the work and her mother Janet, often visited the house while the construction was ongoing. The work included-
Supervisory works of the workers who were involved in the construction of the swimming pool. This was being done as a support function to the main contractor and consultant David Marion
Supervision and payment of casual wages to the workers on site.
Supervision of sub- contractors involved in the making of metal covers, plumbing works and steel works. This included approving the works for payment and making the payments to the sub- contractors; and
Supervision of the materials delivered by the main supplier of materials, Panju agencies. He received at total of Kshs 5,225,231 to cater for materials, labour and service fee of the main contractor. He received an additional 100,000 towards payment of labour for the project.
During cross-examination, he stated he was employed by the plaintiff’s company, Distribution Communication Limited. He was not paid for the work. The accounts office gave him the documents he used to prepare the schedule. statement was handwritten and later typed. He carried out supervision of civil works in 2014. He was employed by Distributed Communication Systems Limited which was owned by the applicant. He was paid Kshs. 5.2 million. Some of the money paid to the contractor was relayed through him. The Respondent supervised the project. She gave her opinion /directions on what she wanted. He was paid Kshs. 100,000 for construction of the bike and car shade.
During cross –examination he stated that the house in Karen belongs to the applicant because he used to live there. The Respondent’s mother also used to make suggestions.
In re-examination , he stated that he was employed by Distributed Communication Systems Limited as a Civil Engineer Site Supervisor. As a supervisor, he ensured that the quality of work satisfies the client specifications. The mother in law to the Plaintiff, did not pay him any money.
PW4, Joseph Kimweti he is a business man with speciality in Civil works, including construction of houses, cabro works for parking areas and roads and landscaping. He undertook various works for the plaintiff on the house at Karen between 2004 and 2013. The works included-
Flowers dressing and various landscaping works in the compound in 2009 for which he received a total of Kshs 68,000
Supply and placement of veranda edge stores, paring slabs, wall extension works and repairs and marble fire place floor protection slabs for which he received a total of Kshs 821,466 on various dates between 2008 and 2013
Construction of staff quarters within the 70, Dagoretti road property including separate staff toilets for which he received Kshs 1,202,854 on various dates between 2007 and 2010.
Construction of the car shed, extension of the car shed and construction of motor bike store between 2005 and 2006 for which he received Kshs 186, 300.
Construction of Tree House platform and sand pit complete with ladder and roof for which he received Kshs 570000
fixing water pipes from the main gate to the Plaintiff’s house, tank fitting and plumbing works for which he received Kshs 89,600
Extension of security wall, including plastering for which he was paid Kshs 160,000
Improvement of the drive way and parking area for which he received a total of Kshs 147,000
He stated the work was commissioned by the Plaintiff and supervised by the defendant who was at home much of the time. It is the Plaintiff who paid for the work.
During cross-examination he stated that he had undertaken other work for the plaintiff between, 2013 and 2021. He did not keep the receipts confirming payment. He submitted the invoices that are attached to his witness statement. He met the Plaintiff in 1996, he was doing some work for Janet Hurt. stated that he wrote his witness statement and later took it to the lawyer to be typed. He worked for the applicant. He misplaced evidence of payment. He relied on the copies of quotation he retained. He was paid by the applicant. He consulted the Respondent when the applicant was not around. He doesn’t know the owner of the house. Both the applicant and the respondent lived in that house. He did not have the quotations as his wife had burnt them. He also did not avail the invoices
He was paid by open cheques which he cashed over the counter. He was not sure of the bank that he went to withdraw the cheques. There are other houses on the parcel of land. The plaintiff’s mother in law and siblings to the defendant live on the property, in separate houses. He undertook some work for Hillary Hurt.
On re-examination, he stated that he withdrew from Ecobank and that he was paid by the Plaintiff and not by his mother in law. All the quotations and vouchers were in his name.
He met the applicant while working with the Respondent’s mother. Payments were made by Distributed Communication Systems Limited. He bought materials from hardware; he doesn’t have invoices. He doesn’t know Tim Walsh. He doesn’t know who the house in Karen belongs to. The cheque was drawn by the company. He worked for Janet and her brother at the Karen residence.
PW5, Joseph Nzioki Muia stated that he was a taxi driver. He was called in by the Plaintiff to support the two children, during the 2019 covid 19 lock down. He undertook grocery shopping for the Children and also assisted Enock Monari to install an APC Power back up unit and WI-FI system as both were down. He also took photographs of furniture in the house.
During cross-examination , he denied spying on behalf of the plaintiff. He had formed the opinion Plaintiff was the owner of the house. He was also the family driver.
He had worked as an employee of Radio Frequency Systems, the Plaintiff’s Company. He also worked as a taxi driver. He did not remember the year or the circumstances under which the plaintiff left the country. He took the pictures on the instruction of the plaintiff. He observed that the boys appeared traumatised. He did not make a report to the authorities.
PW6, Francis Mungai Kungu a contractor, he runs a business, Samlu Construction Limited. He specialises in Tennis Courts. He met the plaintiff sometime in 2008. He was contacted by the Plaintiff and Roger Hurt. He was supervised by Mrs. Janet Hurt and the defendant. The original invoice was raised in the name of Roger Hurt.
The scope of the work included -
Demolition of the wall & removing debris
Excavating of the Tennis Court area
Supply and applying hardcore & compaction
Crush run- bitumen and slurry seal
Primer paint- acrylic surface
Deco colour coating- red and green
Supplied special tennis chain link & posts; and
Foundation & steel work for practice wall
He was paid a total of Kshs 1,862,507 for the work as per the schedule he attached. He dealt with the plaintiff only.
During cross-examination , he stated the house belonged to Roger Hurt but he was paid by the plaintiff. He was paid through the plaintiff’s companies. While on site he dealt with the family Simon, Sasha, Roger Hurt and Janet Hurt. He was called by Roger to come and do the work.
He did not place a board at the construction site, he did not process the NEMA approval, he did not get a licence from Nairobi County Government. He assumed the client had processed the licence. He did not ask for the licence. He was paid by the company.
PW 7, Simon Peter Kipkorir Tanui he was an employee at Radio Frequency Systems Limited. He overheard a conversation between a Conrad Thorpe and Michael Mwaura in which they schemed to take over the Company from the Plaintiff. Conrad was acting on the instructions of the defendant. Eventually the plaintiff went to court and overturned the fraudulent takeover of the company by Mwaura. The defendant confessed to a misjudgement on her part.
On cross-examination , he stated that he worked as logistics and warehouse management manager. He sat directly opposite Mwaura on the first floor. When Conrad came in, he heard him say he was going to visit Mr. Mwaura. He was suspicious about his intentions and he followed him. The door was open and he could hear what was being discussed. Two days later, Conrad went back to the office with a suitcase. He did not share this information with anyone. Simon showed him the invoice. He was a close friend of Simon. He did not have a close relationship with the other employees. Mwaura said that he had a close relationship with Sasha and he would be taking over the company. The company was brought down by Conrad and Mwaura. Sasha is to blame for how the company ended up. The invoice attached shows payment to Conrad. He denied the allegation that he was paid to testify. He also had an email addressed by the defendant to the plaintiff, regretting her actions and involvement with Conrad.
Further, he stated that his mother, Beatrice Wangari who was a nanny at Simon’s residence asked him to write a statement. Simon left the country in 2017. His mother told him to write a statement in respect of a land. The directors of Radio Frequencies Ltd are Simon and Mwaura. He does not know if Robin Hurt had an interest in the company. Robert Hurt is Sasha’s father (the defendant). He is not aware that Sasha had a business at No. 70. He is not aware that Simon was sacked by any other company.
The invoice was addressed to Robin. Robin was not related to any of the companies. The document has nothing supporting the case. He did not ask Robin why he was issued with an invoice. There is a case between Simon and Mwaura on misappropriation of funds. The email from Sasha to Simon does not relate to the property in dispute. He does not know the owner of Dagoretti House No. 70.
PW8, Omar Abdallah Sheikh told the court that he is a sound engineer and a director at Audio Visual Engineering. He was introduced to the Plaintiff in 2009. He sold him sound system comprising of speakers, turn tables, subwoofers, amplifiers and related electronics at approximately Kshs 4,270,600. The defendant was present when he was installing and he visited the home on a number of occasions to service the equipment. The equipment was extremely sensitive and had to be decommissioned by a professional or would be damaged.
During cross-examination he stated that the statement was drafted by an advocate on his instructions. He supplied equipment in 2009. He signed the statement in 2022. He relied on company records. He did not have an invoice with him but he remembers what he supplied. He was paid Kshs. 4 million by Simon (the applicant). Payment was by way of cash and cheques. He did not keep a schedule because the client was known to him. He does not know the owner of the property. He does not know where Simon got the funds from. Simon’s wife was present when the installation was done.
Further, he stated that he did not have the receipt evidencing payment.
PW9, James Waweru, he is a businessman trading under the name of Foster Systems Limited, he specializes in electric fences, electrical wiring and generator works and other related works. He met the plaintiff in 2011 and was contracted to perform various jobs at the new house between 2013 and 2016. The works included-
Installation of razor wire and warning signs, it covered the entire compound and the other occupants of the compound were involved. The total cost was Kshs 1,593, 090
Alarm system upgrade, at a cost of Kshs 359,955
Installation of CCTV cameras he also installed cameras at the defendant’s shop and the main gate to the house. The work was supervised by the plaintiff and the defendant. Cost of Kshs 320,800.
On cross- examination he stated that the works were from 2011-2016. The applicant called him to do some work for him. He was living in that house. They did not discuss ownership. Mr. Roger Hurt and Jane Hurt were supervising the work. The work extended to their compound; the systems covered the entire compound. Roger Hurt’s house was in the same compound. Payment for services was done as a family. He received bulk payment from Simon Horner’s Company. Roger Hurt made one payment. Sasha Horner gave guidance on how the CCTV would be installed for House of Treasure.
PW10 was Simon Wallington Horner, he is the plaintiff herein. He and the defendant formalized their marriage on 24 th June 2000, the marriage was blessed with two sons. The marriage has since been dissolved by the issuance of a decree absolute. During the pendency of the marriage the couple established their matrimonial home at House No. 70 Dagoretti Road Karen erected on I.R. 5686/1 registered as I.R. 5686/12 It was his evidence that he solely met the cost of the construction of the house, alongside other developments on the parcel of the land including the drive way, staff quarters, a security guards house, a swimming pool, a tennis court, an electric fence, walls, fences and gate.
The land on which the matrimonial home is constructed belongs to Goodison Fifty-Nine Limited in which the defendant holds 33.3 % interest. The other shareholders are members of her family.
He spent Kshs 45,652,218.40 in developing the property and not Kshs 3,900,000 as alleged. The payments were made through two companies in which he is a shareholder and director, Distributed Communication Systems Limited and radio Frequency Systems Limited.
The total costs of construction are itemized in affidavit sworn on 18 th January 2019 from paragraphs 6 to paragraph 26, along with the supporting documentation.
Further he contends that he purchased Kilifi Land reference No. 12888/18, which is registered in the name of the defendant, she holds the property in trust for him and the children of the marriage. The property was registered in her name as he cannot hold free hold land as a foreigner.
There was evidence of a toxic relationship between him and the defendant with the unfortunate consequence of drawing in the two children of the marriage.
During cross examination, he stated that the property is registered in the name of Goodison Fifty-Nine Limited. He is seeking a share of the property because he built a house on the land it stands. The land is not subdivided. Sasha (the defendant) has 33% stake in the company. The CR12 does not show the shares corresponding to house no. 70. He did not contribute to the shares in the company. Janet Hurt is not an owner or shareholder of Goodison Fifty-Nine Limited. When he started construction, the property was in the name of Janet Hurt. Goodison Fifty-Nine Limited became the registered owner in 2010. She was aware of the works.
Sasha Hurt owns 1/3 of the property. There are two other houses on the property; house no 70 and 77 with two gates. The house they lived in was accessed at no. 70. House of treasures is to the left in the same compound. He built staff quarters adjoining house of treasures. He built the house on No. 70. Building plans were issued by Nairobi City Council in 2003. He has cheques showing that payments were made. He lived in the house because he was married to the respondent until 2017.
The Kilifi property is registered in Sasha’s name. It has sentimental value for their sons. He paid for the property. The property was to be held for the benefit of the children. They agreed to sell the property in Watamu and pay school fees for the children. The money was transferred to the school in the UK. They also agreed to sell the property in Nanyuki. He did not utilize the funds. Sasha did not pay school fees. He intends to pass the property in Ngong to the workers, but Sasha has held onto the property. He sold flats in London and Wembley which were acquired during the subsistence of the marriage. Sasha did not contribute towards their acquisition. He sold the properties to meet his financial needs. The properties were owned by a company where he had shares. Sasha helped raise the children of the marriage. She was at home when he was away. She picked and dropped the children. He has an interest in the Kilifi and Karen properties. The Kilifi property has sentimental values for the children of the marriage. He did not include the document examiner in his list of witnesses. He denied that the properties in London and Wembley comprised matrimonial property
He entered the property because he and the defendant were married. He did not pay rent.
Further, he stated the respondent is not entitled to the properties (in London and Wembley) as they are out of jurisdiction she did not contribute towards the purchase. He has shares in Radio Frequencies System Limited and Distributors Communication Systems Ltd. The shareholders in Radio Frequencies Systems Ltd are himself, Harun Mburu and Michael Mwaura. He holds 40% shares and owns the business. The shareholders in Distributors Communication Systems Ltd are Andrew who owns 4899 shares and Michael Mwaura who owns 1480 shares. Andrew owns the shares on his behalf. He owns other properties in London and Wembley.
He did not sign a sale agreement for the properties in No. 70 Dagoretti and the Watamu property. He is a dual citizen of both Britain and Ireland. When he came to Kenya, he stayed at the guest house on property no. 70 Dagoretti. While in Kenya, he was working. They lived in the cottage until he built the house between 2003 and 2004. He did not seek permission to move into the bigger house. He paid for the construction of the house. Their house was separated by a chain link fence. He is not aware that the property was gifted to Sasha’s mother in the divorce settlement. Sasha’s two siblings also live on the property. Where he put up a house the space was vacant. He built the house with his earnings from Kenya and Mauritius. The architect obtained all the approvals. He built a wall and put up an electric fence. Security was for the entire compound. Janet asked him to set security measures around the entire compound. The improvements were done by his two companies. Payments were reflected as Director’s loan account.
He is staking a claim on the house and the acreage around it. He is aware that a foreigner cannot own freehold property. He paid for landscaping. The house was completed in 2005. They moved into the property in 2004 when it was still registered in Janet’s name. He did not raise a claim when the property was sold to the Company, Goodison Fifty-Nine Limited in 2010.
He did not avail the copies of cheques showing payment. He reiterated that he does not have a claim against the Company Goodison Fifty-Nine Limited.
When he filed the Originating Summons, he was aware that the Company Goodison Fifty-Nine Limited is the registered owner of the property. His claim is against Sasha.
On reexamination, he stated that he was the sole signatory of the company bank account. He was financing the companies in Kenya through his other companies in Mauritius. The proceeds from the sale of the Watamu property was paid into Kaplan & Stratton Advocates account. He then instructed them to pay to Kings Somerset. Janet did not object when he was building. He paid Kshs. 4.5 million for the music system.
DEFENDANT’S EVIDENCE.
DW1, Sasha Elizabeth Horner, she and the plaintiff were formerly married and currently divorced. They met in the UK while studying and returned to Kenya. Initially her mother hosted them in a cottage and later as the family grew, they were allowed to move into a larger house within the compound.
She denied that the defendant constructed the house and stated the improvements he made to the property would not exceed Kshs 3,900,000. The contested property is not in her name but rather of the Interested Party.
In any event she also contributed to the house hold expenses and supported the two children of the marriage. She testified that the Plaintiff has concealed other properties that comprise matrimonial property, these include;
Watamu- Two plots Land reference Number 8608/2 and Land reference Number 8608/3
Plot No. 1471 and 1472 in ulu, Aimi Ma Kilungu Limited
Kilifi Land reference Number 12888/18
Ngong Property Title Number Ngong/ Ngong/ 34685
Henley – Flat 3 Brakspear, New Street, Henley on Thames, Oxfordshire
London Flat London- Ground floor flat, 13 Hemdon Road, London SW 18 2DDQ Title Number TGL280444 (leasehold)
Range Rover KBL 032 A
Range rover KAB 126 R
Audi Convertible
Toyota VX KAV 850B
Speed Boat worth USD 30000/-
Shares in Hellos Tower Africa Limited.
The respondent has disposed of some of these assets and he should account for the proceeds. The rental income is under the company’s name. The applicant does not have a share in the company. The Karen property is registered in the name Goodison Fifty-Nine Limited. The applicant did not build the house. Her mother built it and allowed them to live in it. He did the interiors. He did not pay Kshs. 48 million. The property in Kilifi is in her name. It is a gift to her and the children. They bought the property in Ngong for the staff. The applicant sold the Watamu property in 2016. She did not see the proceeds or receipts showing the money was used to pay school fees. He paid school fees in 2009. He stopped paying school fees in 2017. He sold the properties in UK when they were still married. She did not get a share of the proceeds. He bought the properties from the income from his business. She was taking care of the children. His claim is unjustified.
On cross examination she stated that they renovated the house with income from house of treasurers. She does not have the board resolution or evidence of payments, costs and improvements. She is not aware that there is a shareholder agreement. She did not run a joint business with the applicant. The trust deed purportedly executed by her mother is not registered at the Ministry of Lands. She never visited the Flat in London and Wembley, nor contribute to the mortgage. She did not contribute to the purchase of the flats in London and Wembley. She is not
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The Plaintiff’s Further Amended Originating Summons is dated 19 th June 2021 and is presented under Order 37 rules 11, 12 and 14 of the Civil Procedure Rules, Section 3A of the Civil procedure Act and Section 7 of the Matrimonial Property Act. It is stated that he is the beneficiary of a trust and seeks the determination of the following questions-
Whether the Plaintiff is entitled to a declaration that HOUSE NO. 70 DAGORETTI ROAD KAREN erected on I.R NO. 5686/1 registered as I.R NO. 5686/12 is matrimonial property jointly acquired and owned by the Plaintiff and the Defendant and should only be dealt with, appropriated, charged for financed, rented or leased to a third party, sold or otherwise disposed of in a manner acceptable to and compatible with the interests and rights of the Plaintiff herein.
Whether the Plaintiff is entitled to a declaration that HOUSE NO. 70 DAGORETTI ROAD KAREN erected on I.R NO. 5686/1 registered as I.R NO. 5686/12 is matrimonial property jointly acquired and owned by the Plaintiff and the Defendant as is registered and held by the Defendant through her shareholding in Goodison Fifty-Nine Limited (CPR/2010/25150) in trust for the Plaintiff and the issues of the marriage.
Whether the Plaintiff is entitled to a declaration that a trust was constructed or resulted in respect of HOUSE NO. 70 DAGORETTI ROAD KAREN erected on I.R NO. 5686/1 registered as I.R NO. 5686/12 by virtue of the marriage between the Plaintiff and the Defendant.
Whether the Plaintiff is entitled to a declaration that a trust was constructed or resulted in respect of KILIFI Land Reference NO. 1288/18 registered in Volume L.T. 37 folio 217/a, file No. 8734 by virtue of the marriage between the Plaintiff and the Defendant.
The Plaintiff be declared to be the absolute owner of KILIFI Land Reference No. 12888/18 registered in Volume L.T. 37 folio 217 /A, file No. 8734
Kilifi Land Reference No. 12888/18 registered in Volume L.T. 37 folio 217 /A, file No. 8734 be transferred to Sam Wellington Horner of Kenyan Passport No. AK0193612 and Thomas Jack Horner of Kenyan Passport No. AK 01882041
Whether an order should issue declaring that 50 % (or such other or higher proportion) of HOUSE NO. 70 DAGORETTI ROAD KAREN erected on I.R NO. 5686/1 registered as I.R NO. 5686/12 aforesaid, is held by the Defendant in trust for the beneficial interest of the Plaintiff.
Whether the said HOUSE NO. 70 DAGORETTI ROAD KAREN erected on I.R NO. 5686/1 registered as I.R NO. 5686/12 should be shared equally and/or be sold and the net proceeds be shared equally between the Plaintiff and the Defendant or in such other manner as the court may deem just.
Whether the Plaintiff is entitled to rental incomes in HOUSE NO. 70 DAGORETTI ROAD KAREN erected on I.R NO. 5686/1 registered as I.R NO. 5686/12
Whether the Deputy Registrar ought to be empowered to sign any documents that the Defendant may refuse to sign.
Whether in the alternative and without prejudice to the foregoing, the Plaintiff is entitled to an order that the Defendant /respondent and the interested party are jointly and severally liable to the plaintiff for the sum of Kshs. 45,552,218.40/= being the cost of the improvements made by the plaintiff on property I.R NO. 5686/1 registered as I.R NO. 5686/12 on which HOUSE NO. 70 DAGORETTI ROAD KAREN is erected?
Whether the Plaintiff is entitled to an order that the Defendant pays costs of this suit.
Whether the Plaintiff is entitled to any other relief that this Honourable Court may deem fit to grant in the circumstances.
The Summons proceeded by way of Viva Voce Evidence.
PLAINTIFF’S EVIDENCE.
PW1- Samson Kaduki, he operates a business under the names Steel and Furniture works, specialising in furniture making, wardrobe setups, including repair and upgrade of the same, unique timber works and painting works. He met the Plaintiff sometime in 2008 and he was contracted by the plaintiff to perform various chores on the new house at Karen, Dagoretti Road, House No.70 between 2007 and 2016.
The works he undertook included
Upgrading the boys’ bathroom (repanelling splash back and walls, new mahogany counter)
Upgrading verandah, including replacement of damaged floor boards and pest control security;
Making of book cases and cupboard underneath stairs
Conversion of attic into walk- in wardrobe with shelf, portioning with floor to ceiling shoe racks;
Conversion of boys’ attics with shelving and beds and mattresses
Attic conversion with large windows, structural changes to the roof and ceiling adjustments
Supply and installation of roll back hidden doors
Extension of quad bike shed
and general annual painting works and property improvements.
He was paid a total of Kshs 1,247,399 as per schedule attached some of the payments were by Petty Cash and the others by cheque, through his bank account. He was paid by the Plaintiff. The defendant supervised him while he did the work.
On cross –examination he stated that he recorded his statement in 2021 and therefore relied on documents provided by the Plaintiff’s former accountant. He was instructed by the plaintiff and that is how he concluded that the defendant was the owner of the house. He carried out the work between 2006 and 2007; and additional work between 2006 and 2017. He was introduced to the plaintiff by his mother in law, Janet.
On re-examination he stated he did not know Goodison Fifty-Nine Limited and the payment by cheque were made by Distribution Communication Systems Limited. He wrote the statement in 2021 when he was requested to write. The applicant asked him to do the works. He concluded that the house belongs to the applicant. He doesn’t know where the applicant got money to pay him. The Respondent asked him to do some work. When he was doing the construction, the Respondent was always at home supervising him; the applicant was away.
In re-examination , he stated that the certified bank statements have details of the cheques. He made some furniture for Janet for a different house.
PW2, Beatrice Wanjeri, she is a long-term employee of the plaintiff, having worked as the house help. She had positive things to say about the Plaintiff and not so positive about the defendant. It is the plaintiff who paid her salary through his company, Distribution Communication Systems Limited. He was close to the children of the marriage, unlike the defendant who spent long hours away from home either having late night drinks or having lunch parties with her friends. The Plaintiff bought her a parcel of land at Ngong/ Ngong/ 34685. She lives there and has maintained contact with the plaintiff. The parcel of land is registered in the defendant’s name, she is yet to transfer it to her.
The plaintiff constructed the house and they moved in between 2004 and 2005
On cross-examination , she stated that she worked for the Applicant and the Respondent from 1995 to 2016. In 1995, the couple were living in the same compound in Karen but in a different house. In 2004, the applicant moved to a house in the same compound that was constructed by him. The applicant supervised the construction and paid the workers. Sometimes the applicant and the respondent supervised together. The applicant bought her a property in Ngong where she lives with her family.
She knew that Janet was the mother in law to the Plaintiff and mother to the defendant. She did not know where the defendant got the money to pay for the construction. She does not know if she supported the Applicant. She doesn’t know where Simon got the money.
PW3, Michael Mwangi, he is a businessman with speciality in civil works, telecommunication sites constructions and general building works. He met the plaintiff in 2007. He undertook supervisory works during the construction of a swimming pool at the new house in Karen, Dagoretti Road, House No. 70 sometime in 2014. He attached a schedule as proof of payment. It was his evidence that it was the Plaintiff who paid for the work. The defendant supervised the work and her mother Janet, often visited the house while the construction was ongoing. The work included-
Supervisory works of the workers who were involved in the construction of the swimming pool. This was being done as a support function to the main contractor and consultant David Marion
Supervision and payment of casual wages to the workers on site.
Supervision of sub- contractors involved in the making of metal covers, plumbing works and steel works. This included approving the works for payment and making the payments to the sub- contractors; and
Supervision of the materials delivered by the main supplier of materials, Panju agencies. He received at total of Kshs 5,225,231 to cater for materials, labour and service fee of the main contractor. He received an additional 100,000 towards payment of labour for the project.
During cross-examination, he stated he was employed by the plaintiff’s company, Distribution Communication Limited. He was not paid for the work. The accounts office gave him the documents he used to prepare the schedule. statement was handwritten and later typed. He carried out supervision of civil works in 2014. He was employed by Distributed Communication Systems Limited which was owned by the applicant. He was paid Kshs. 5.2 million. Some of the money paid to the contractor was relayed through him. The Respondent supervised the project. She gave her opinion /directions on what she wanted. He was paid Kshs. 100,000 for construction of the bike and car shade.
During cross –examination he stated that the house in Karen belongs to the applicant because he used to live there. The Respondent’s mother also used to make suggestions.
In re-examination , he stated that he was employed by Distributed Communication Systems Limited as a Civil Engineer Site Supervisor. As a supervisor, he ensured that the quality of work satisfies the client specifications. The mother in law to the Plaintiff, did not pay him any money.
PW4, Joseph Kimweti he is a business man with speciality in Civil works, including construction of houses, cabro works for parking areas and roads and landscaping. He undertook various works for the plaintiff on the house at Karen between 2004 and 2013. The works included-
Flowers dressing and various landscaping works in the compound in 2009 for which he received a total of Kshs 68,000
Supply and placement of veranda edge stores, paring slabs, wall extension works and repairs and marble fire place floor protection slabs for which he received a total of Kshs 821,466 on various dates between 2008 and 2013
Construction of staff quarters within the 70, Dagoretti road property including separate staff toilets for which he received Kshs 1,202,854 on various dates between 2007 and 2010.
Construction of the car shed, extension of the car shed and construction of motor bike store between 2005 and 2006 for which he received Kshs 186, 300.
Construction of Tree House platform and sand pit complete with ladder and roof for which he received Kshs 570000
fixing water pipes from the main gate to the Plaintiff’s house, tank fitting and plumbing works for which he received Kshs 89,600
Extension of security wall, including plastering for which he was paid Kshs 160,000
Improvement of the drive way and parking area for which he received a total of Kshs 147,000
He stated the work was commissioned by the Plaintiff and supervised by the defendant who was at home much of the time. It is the Plaintiff who paid for the work.
During cross-examination he stated that he had undertaken other work for the plaintiff between, 2013 and 2021. He did not keep the receipts confirming payment. He submitted the invoices that are attached to his witness statement. He met the Plaintiff in 1996, he was doing some work for Janet Hurt. stated that he wrote his witness statement and later took it to the lawyer to be typed. He worked for the applicant. He misplaced evidence of payment. He relied on the copies of quotation he retained. He was paid by the applicant. He consulted the Respondent when the applicant was not around. He doesn’t know the owner of the house. Both the applicant and the respondent lived in that house. He did not have the quotations as his wife had burnt them. He also did not avail the invoices
He was paid by open cheques which he cashed over the counter. He was not sure of the bank that he went to withdraw the cheques. There are other houses on the parcel of land. The plaintiff’s mother in law and siblings to the defendant live on the property, in separate houses. He undertook some work for Hillary Hurt.
On re-examination, he stated that he withdrew from Ecobank and that he was paid by the Plaintiff and not by his mother in law. All the quotations and vouchers were in his name.
He met the applicant while working with the Respondent’s mother. Payments were made by Distributed Communication Systems Limited. He bought materials from hardware; he doesn’t have invoices. He doesn’t know Tim Walsh. He doesn’t know who the house in Karen belongs to. The cheque was drawn by the company. He worked for Janet and her brother at the Karen residence.
PW5, Joseph Nzioki Muia stated that he was a taxi driver. He was called in by the Plaintiff to support the two children, during the 2019 covid 19 lock down. He undertook grocery shopping for the Children and also assisted Enock Monari to install an APC Power back up unit and WI-FI system as both were down. He also took photographs of furniture in the house.
During cross-examination , he denied spying on behalf of the plaintiff. He had formed the opinion Plaintiff was the owner of the house. He was also the family driver.
He had worked as an employee of Radio Frequency Systems, the Plaintiff’s Company. He also worked as a taxi driver. He did not remember the year or the circumstances under which the plaintiff left the country. He took the pictures on the instruction of the plaintiff. He observed that the boys appeared traumatised. He did not make a report to the authorities.
PW6, Francis Mungai Kungu a contractor, he runs a business, Samlu Construction Limited. He specialises in Tennis Courts. He met the plaintiff sometime in 2008. He was contacted by the Plaintiff and Roger Hurt. He was supervised by Mrs. Janet Hurt and the defendant. The original invoice was raised in the name of Roger Hurt.
The scope of the work included -
Demolition of the wall & removing debris
Excavating of the Tennis Court area
Supply and applying hardcore & compaction
Crush run- bitumen and slurry seal
Primer paint- acrylic surface
Deco colour coating- red and green
Supplied special tennis chain link & posts; and
Foundation & steel work for practice wall
He was paid a total of Kshs 1,862,507 for the work as per the schedule he attached. He dealt with the plaintiff only.
During cross-examination , he stated the house belonged to Roger Hurt but he was paid by the plaintiff. He was paid through the plaintiff’s companies. While on site he dealt with the family Simon, Sasha, Roger Hurt and Janet Hurt. He was called by Roger to come and do the work.
He did not place a board at the construction site, he did not process the NEMA approval, he did not get a licence from Nairobi County Government. He assumed the client had processed the licence. He did not ask for the licence. He was paid by the company.
PW 7, Simon Peter Kipkorir Tanui he was an employee at Radio Frequency Systems Limited. He overheard a conversation between a Conrad Thorpe and Michael Mwaura in which they schemed to take over the Company from the Plaintiff. Conrad was acting on the instructions of the defendant. Eventually the plaintiff went to court and overturned the fraudulent takeover of the company by Mwaura. The defendant confessed to a misjudgement on her part.
On cross-examination , he stated that he worked as logistics and warehouse management manager. He sat directly opposite Mwaura on the first floor. When Conrad came in, he heard him say he was going to visit Mr. Mwaura. He was suspicious about his intentions and he followed him. The door was open and he could hear what was being discussed. Two days later, Conrad went back to the office with a suitcase. He did not share this information with anyone. Simon showed him the invoice. He was a close friend of Simon. He did not have a close relationship with the other employees. Mwaura said that he had a close relationship with Sasha and he would be taking over the company. The company was brought down by Conrad and Mwaura. Sasha is to blame for how the company ended up. The invoice attached shows payment to Conrad. He denied the allegation that he was paid to testify. He also had an email addressed by the defendant to the plaintiff, regretting her actions and involvement with Conrad.
Further, he stated that his mother, Beatrice Wangari who was a nanny at Simon’s residence asked him to write a statement. Simon left the country in 2017. His mother told him to write a statement in respect of a land. The directors of Radio Frequencies Ltd are Simon and Mwaura. He does not know if Robin Hurt had an interest in the company. Robert Hurt is Sasha’s father (the defendant). He is not aware that Sasha had a business at No. 70. He is not aware that Simon was sacked by any other company.
The invoice was addressed to Robin. Robin was not related to any of the companies. The document has nothing supporting the case. He did not ask Robin why he was issued with an invoice. There is a case between Simon and Mwaura on misappropriation of funds. The email from Sasha to Simon does not relate to the property in dispute. He does not know the owner of Dagoretti House No. 70.
PW8, Omar Abdallah Sheikh told the court that he is a sound engineer and a director at Audio Visual Engineering. He was introduced to the Plaintiff in 2009. He sold him sound system comprising of speakers, turn tables, subwoofers, amplifiers and related electronics at approximately Kshs 4,270,600. The defendant was present when he was installing and he visited the home on a number of occasions to service the equipment. The equipment was extremely sensitive and had to be decommissioned by a professional or would be damaged.
During cross-examination he stated that the statement was drafted by an advocate on his instructions. He supplied equipment in 2009. He signed the statement in 2022. He relied on company records. He did not have an invoice with him but he remembers what he supplied. He was paid Kshs. 4 million by Simon (the applicant). Payment was by way of cash and cheques. He did not keep a schedule because the client was known to him. He does not know the owner of the property. He does not know where Simon got the funds from. Simon’s wife was present when the installation was done.
Further, he stated that he did not have the receipt evidencing payment.
PW9, James Waweru, he is a businessman trading under the name of Foster Systems Limited, he specializes in electric fences, electrical wiring and generator works and other related works. He met the plaintiff in 2011 and was contracted to perform various jobs at the new house between 2013 and 2016. The works included-
Installation of razor wire and warning signs, it covered the entire compound and the other occupants of the compound were involved. The total cost was Kshs 1,593, 090
Alarm system upgrade, at a cost of Kshs 359,955
Installation of CCTV cameras he also installed cameras at the defendant’s shop and the main gate to the house. The work was supervised by the plaintiff and the defendant. Cost of Kshs 320,800.
On cross- examination he stated that the works were from 2011-2016. The applicant called him to do some work for him. He was living in that house. They did not discuss ownership. Mr. Roger Hurt and Jane Hurt were supervising the work. The work extended to their compound; the systems covered the entire compound. Roger Hurt’s house was in the same compound. Payment for services was done as a family. He received bulk payment from Simon Horner’s Company. Roger Hurt made one payment. Sasha Horner gave guidance on how the CCTV would be installed for House of Treasure.
PW10 was Simon Wallington Horner, he is the plaintiff herein. He and the defendant formalized their marriage on 24 th June 2000, the marriage was blessed with two sons. The marriage has since been dissolved by the issuance of a decree absolute. During the pendency of the marriage the couple established their matrimonial home at House No. 70 Dagoretti Road Karen erected on I.R. 5686/1 registered as I.R. 5686/12 It was his evidence that he solely met the cost of the construction of the house, alongside other developments on the parcel of the land including the drive way, staff quarters, a security guards house, a swimming pool, a tennis court, an electric fence, walls, fences and gate.
The land on which the matrimonial home is constructed belongs to Goodison Fifty-Nine Limited in which the defendant holds 33.3 % interest. The other shareholders are members of her family.
He spent Kshs 45,652,218.40 in developing the property and not Kshs 3,900,000 as alleged. The payments were made through two companies in which he is a shareholder and director, Distributed Communication Systems Limited and radio Frequency Systems Limited.
The total costs of construction are itemized in affidavit sworn on 18 th January 2019 from paragraphs 6 to paragraph 26, along with the supporting documentation.
Further he contends that he purchased Kilifi Land reference No. 12888/18, which is registered in the name of the defendant, she holds the property in trust for him and the children of the marriage. The property was registered in her name as he cannot hold free hold land as a foreigner.
There was evidence of a toxic relationship between him and the defendant with the unfortunate consequence of drawing in the two children of the marriage.
During cross examination, he stated that the property is registered in the name of Goodison Fifty-Nine Limited. He is seeking a share of the property because he built a house on the land it stands. The land is not subdivided. Sasha (the defendant) has 33% stake in the company. The CR12 does not show the shares corresponding to house no. 70. He did not contribute to the shares in the company. Janet Hurt is not an owner or shareholder of Goodison Fifty-Nine Limited. When he started construction, the property was in the name of Janet Hurt. Goodison Fifty-Nine Limited became the registered owner in 2010. She was aware of the works.
Sasha Hurt owns 1/3 of the property. There are two other houses on the property; house no 70 and 77 with two gates. The house they lived in was accessed at no. 70. House of treasures is to the left in the same compound. He built staff quarters adjoining house of treasures. He built the house on No. 70. Building plans were issued by Nairobi City Council in 2003. He has cheques showing that payments were made. He lived in the house because he was married to the respondent until 2017.
The Kilifi property is registered in Sasha’s name. It has sentimental value for their sons. He paid for the property. The property was to be held for the benefit of the children. They agreed to sell the property in Watamu and pay school fees for the children. The money was transferred to the school in the UK. They also agreed to sell the property in Nanyuki. He did not utilize the funds. Sasha did not pay school fees. He intends to pass the property in Ngong to the workers, but Sasha has held onto the property. He sold flats in London and Wembley which were acquired during the subsistence of the marriage. Sasha did not contribute towards their acquisition. He sold the properties to meet his financial needs. The properties were owned by a company where he had shares. Sasha helped raise the children of the marriage. She was at home when he was away. She picked and dropped the children. He has an interest in the Kilifi and Karen properties. The Kilifi property has sentimental values for the children of the marriage. He did not include the document examiner in his list of witnesses. He denied that the properties in London and Wembley comprised matrimonial property
He entered the property because he and the defendant were married. He did not pay rent.
Further, he stated the respondent is not entitled to the properties (in London and Wembley) as they are out of jurisdiction she did not contribute towards the purchase. He has shares in Radio Frequencies System Limited and Distributors Communication Systems Ltd. The shareholders in Radio Frequencies Systems Ltd are himself, Harun Mburu and Michael Mwaura. He holds 40% shares and owns the business. The shareholders in Distributors Communication Systems Ltd are Andrew who owns 4899 shares and Michael Mwaura who owns 1480 shares. Andrew owns the shares on his behalf. He owns other properties in London and Wembley.
He did not sign a sale agreement for the properties in No. 70 Dagoretti and the Watamu property. He is a dual citizen of both Britain and Ireland. When he came to Kenya, he stayed at the guest house on property no. 70 Dagoretti. While in Kenya, he was working. They lived in the cottage until he built the house between 2003 and 2004. He did not seek permission to move into the bigger house. He paid for the construction of the house. Their house was separated by a chain link fence. He is not aware that the property was gifted to Sasha’s mother in the divorce settlement. Sasha’s two siblings also live on the property. Where he put up a house the space was vacant. He built the house with his earnings from Kenya and Mauritius. The architect obtained all the approvals. He built a wall and put up an electric fence. Security was for the entire compound. Janet asked him to set security measures around the entire compound. The improvements were done by his two companies. Payments were reflected as Director’s loan account.
He is staking a claim on the house and the acreage around it. He is aware that a foreigner cannot own freehold property. He paid for landscaping. The house was completed in 2005. They moved into the property in 2004 when it was still registered in Janet’s name. He did not raise a claim when the property was sold to the Company, Goodison Fifty-Nine Limited in 2010.
He did not avail the copies of cheques showing payment. He reiterated that he does not have a claim against the Company Goodison Fifty-Nine Limited.
When he filed the Originating Summons, he was aware that the Company Goodison Fifty-Nine Limited is the registered owner of the property. His claim is against Sasha.
On reexamination, he stated that he was the sole signatory of the company bank account. He was financing the companies in Kenya through his other companies in Mauritius. The proceeds from the sale of the Watamu property was paid into Kaplan & Stratton Advocates account. He then instructed them to pay to Kings Somerset. Janet did not object when he was building. He paid Kshs. 4.5 million for the music system.
DEFENDANT’S EVIDENCE.
DW1, Sasha Elizabeth Horner, she and the plaintiff were formerly married and currently divorced. They met in the UK while studying and returned to Kenya. Initially her mother hosted them in a cottage and later as the family grew, they were allowed to move into a larger house within the compound.
She denied that the defendant constructed the house and stated the improvements he made to the property would not exceed Kshs 3,900,000. The contested property is not in her name but rather of the Interested Party.
In any event she also contributed to the house hold expenses and supported the two children of the marriage. She testified that the Plaintiff has concealed other properties that comprise matrimonial property, these include;
Watamu- Two plots Land reference Number 8608/2 and Land reference Number 8608/3
Plot No. 1471 and 1472 in ulu, Aimi Ma Kilungu Limited
Kilifi Land reference Number 12888/18
Ngong Property Title Number Ngong/ Ngong/ 34685
Henley – Flat 3 Brakspear, New Street, Henley on Thames, Oxfordshire
London Flat London- Ground floor flat, 13 Hemdon Road, London SW 18 2DDQ Title Number TGL280444 (leasehold)
Range Rover KBL 032 A
Range rover KAB 126 R
Audi Convertible
Toyota VX KAV 850B
Speed Boat worth USD 30000/-
Shares in Hellos Tower Africa Limited.
The respondent has disposed of some of these assets and he should account for the proceeds. The rental income is under the company’s name. The applicant does not have a share in the company. The Karen property is registered in the name Goodison Fifty-Nine Limited. The applicant did not build the house. Her mother built it and allowed them to live in it. He did the interiors. He did not pay Kshs. 48 million. The property in Kilifi is in her name. It is a gift to her and the children. They bought the property in Ngong for the staff. The applicant sold the Watamu property in 2016. She did not see the proceeds or receipts showing the money was used to pay school fees. He paid school fees in 2009. He stopped paying school fees in 2017. He sold the properties in UK when they were still married. She did not get a share of the proceeds. He bought the properties from the income from his business. She was taking care of the children. His claim is unjustified.
On cross examination she stated that they renovated the house with income from house of treasurers. She does not have the board resolution or evidence of payments, costs and improvements. She is not aware that there is a shareholder agreement. She did not run a joint business with the applicant. The trust deed purportedly executed by her mother is not registered at the Ministry of Lands. She never visited the Flat in London and Wembley, nor contribute to the mortgage. She did not contribute to the purchase of the flats in London and Wembley. She is not
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