AMM v SMN [2022] KEHC 367 (KLR)

AMM v SMN (Civil Suit E019 of 2021) [2022] KEHC 367 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 367 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Suit E019 of 2021

GV Odunga, J

May 5, 2022

N THE MATTER OF THE MATRIMONIAL PROPERTY ACT, 2013 AND IN THE MATTER OF SECTIONS 2, 6, 7, 12, 14, & 17 OF THE MATRIMONIAL PROPERTY ACT, 2013

Between

AMM

Plaintiff

and

SMN

Defendant

Judgment

1. The Plaintiff and the Defendant got married under the Kamba Customary Law on 27th November, 2004, which marriage was dissolved vide Kangundo SPMCC Divorce Petition No. 2 of 2019 – SMN vs. AMM.

2. According to the Plaintiff, the said Divorce Cause was initiated fraudulently by the Defendant under the mistaken and ill-advised belief that it would assist him in shutting the Plaintiff from the Estate of their mother, who is the adoptive mother of the Defendant, MNM, also the subject of Succession Machakos High Court Cause No. 34 of 2018.

3. It was pleaded that the said union was blessed with three issues a girl and two boys born on 6th August, 2006, 30th December, 2008 and 1st November, 2013 respectively. All the said issues, it was pleaded, are minors of school going age in Form 1, Standard 6 and PP2 respectively. According to the Plaintiff, the average monthly expenditure for the children and the Plaintiff inclusive of school fees, food, transport, medical care, clothing etc is Kshs200,000. 00.

4. It was averred that for most of their marital life, the couple were residing together in their matrimonial home in Matungulu Location, Tala within their mother’s compound under the same roof with her till her demise on 6th July, 2018. It was averred that for the better part of her sunset life, the said mother (hereinafter referred to as “the deceased”), who died aged 86 years, suffered ill-health and required the Plaintiff’s constant, round the clock nursing hence the reason for sharing the same roof with her.

5. It was however averred that since 2018, the Defendant actively and constructively deserted the matrimonial home and for the most part of 2019, only made technical appearances in the matrimonial home. The Plaintiff contended that in so deserting the family, the Defendant abdicated and abandoned his financial obligations to his wife and parental responsibilities to the issues of the marriage. As a result, the family was living in dire straits as the financial burden of bringing up the children single-handedly became impossible to shoulder.

6. It was further averred that there has never been any dispute or disagreement respecting the parentage of the children hence they are entitled to a decent upbringing, including proper education, clothing, food, sustenance and growth.

7. It was disclosed that the Defendant suffers from severe alcoholism that is worsened by his penchant for violence and disposing of properties for quick cash to satisfy his addiction. At present, the only property in the name of the respondent is a ramshackle motor bike, and the moment he gets his hands on anything convertible to money, it will be disposed of in a jiffy and for peanuts. The Plaintiff was apprehensive that there was a real and imminent danger that the Plaintiff and her children would be left homeless and penniless, hence it was imperative that this Court intervenes as a matter of urgency to salvage the situation.

8. It was revealed that the distribution of the deceased’s estate was referred by this Court to mediation and that the Mediator’s report had been filed in Court. According to the said Report, the Defendant was allocated a one-third share in the proposed distribution of the estate which, according to the Plaintiff, he would hold in trust for the Plaintiff and their children.

9. However, given the differences obtaining in the homestead which have split over to the Courts, the Plaintiff was apprehensive of the real danger that the Defendant may take steps to dispose of the said trust properties or hide the same from the children and the Plaintiff.

10. The Summons were however, opposed by the Defendant who averred that he was a son to the late MN whose estate is subject to the Succession Cause Number 34 of 2018. According to him, the plaintiff is neither a child of the deceased nor a beneficiary of the said estate.

11. He averred that they have been in dysfunctional relationship dating back in 2013 but the plaintiff all along was salivating on the properties of his late mother, the subject of the said Succession Cause. According to the Defendant, immediately after the demise of his mother, the Defendant in a bid to disinherit his sisters filed petition for letters of administration on 27th September 2018 and a grant was made in their joint names without his Knowledge. In a bid to get control over the estate, the Defendant’s sisters in filed an application for revocation of grant and court ruled in their favour. The Defendant deposed that the Plaintiff’s attempts to benefit from the estate of his mother having failed, the Plaintiff has now approached the Court to make another attempt on the estate through back door.

12. It was disclosed that as at the time of dissolution of the marriage, the only matrimonial property the couple has is business which they operate in the name of [Particulars Withheld]stores, which is a family business which is operated for the benefit of the whole family. While acknowledging the existence of the mediation agreement, the Defendant averred that the said agreement is not conclusive since, based on the information gathered from his sisters who are administrators, there are creditors who have not been provided for and have made an application which is pending before court in respect of which negotiations have been entered into with a view to settling their claim.

13. According to the Defendant, the properties named in the mediation agreement do not in any way form matrimonial properties nor were they acquired during the subsistence of marriage. The Defendant further averred that whereas the Plaintiff claims that they have children together, she conceived some of the children out of wedlock which led to our divorce.

14. The Defendant further averred that they were housed by his deceased mother hence the allegation that they have their matrimonial home in Matungulu Location, Tala has no basis. He however denied that he abandoned his parental duties and responsibilities and averred that he has been supporting his children. In his deposition, the allegations that he suffers from chronic alcoholism have no basis and that the said allegations are only meant to taint his name to serve the Plaintiff’s interests.

15. The Defendant denied that he sold any of the properties of the deceased and asserted that it was the Plaintiff who tried to sell the same before she was stopped by his sisters. It was averred by him that the properties that are subject to confirmation of grant does not form part of the matrimonial properties as he has not acquired them during the pendency of their union but the same will be acquired upon confirmation of grant, which is yet to be confirmed.

16. The Defendant averred that the plaintiff has not contributed in any way to the acquisition of the properties which are listed in the mediation agreement and reiterated that at the time of writing the mediation agreement, they had not ascertained the creditors of the estate and they agreed to share the said estate knowing that they shall at the opportune moment sell part of the property jointly to clear the said liabilities. It was his case that the numerous applications and suits by the Plaintiff are aimed at scuttling an attempt to distribute the estate of the deceased, the Plaintiff having been removed as a party to the succession proceedings.

17. The Defendant urged the Court to dismiss the originating summons with costs.

18. On behalf of the Plaintiff it was submitted that despite the said divorce, both parties continue to reside in their matrimonial home which is part of the Estate of their mother, MNM (Deceased). They however, both lead separate lives, with the Plaintiff solely taking care of the issues of the marriage whilst the Respondent concentrates on himself. Occasionally, depending on his moods, he eats from the Plaintiff’s kitchen.

19. It was reiterated that prior to the breakdown of their relationship, the litigants herein were blessed with 3 issues who are all of school-going ages. There has been a wild an unsubstantiated allegation by the Respondent that one of the issues is not fathered by him, but neither has any evidence in support of this been provided nor has the matter been presented to any court for adjudication. This is no more than suspicion, which, in any event, has no bearing or relevance to the issue before this court. Such an amorphous and irrelevant allegation, it was submitted, could only have been made with ulterior motives.

20. According to the Plaintiff, the following are the issues for determination by this Court:a.What was the matrimonial home of the parties herein?b.Is the Respondent’s inheritance matrimonial property? Andc.If yes, how is it to be distributed/ shared?

21. In her submissions, the Plaintiff cited Section 2 of the Matrimonial Property Act, 2013 and relied on PAW-M vs. C M A W-M [2016] eKLR.

22. According to the Plaintiff, both parties have confirmed that they resided within their mother’s house during her lifetime and even upon her death. Therefore, this was their matrimonial home, and especially so following her demise since the Plaintiff and the children have known no other home aside from this. The spirit behind the law securing the place of a matrimonial home in the family is to protect spouses and children from being rendered destitute either upon collapse of the union or by the unilateral acts of one of the spouses hence the Plaintiff and the children are entitled to a home.

23. On the issue whether the Defendant’s inheritance is matrimonial home, reliance was placed on Section 5 of the Matrimonial Property Act.

24. In the Plaintiff’s view, inherited property may only be excluded from classification as matrimonial property if it was inherited prior to the marriage which is clearly not the case here. The property identified for the benefit of the Respondent is yet to devolve upon him and when ultimately does, this will be an inheritance after the marriage. According to the Plaintiff, under Section 6(1)(a), the matrimonial home is included in matrimonial property. To the Plaintiff, by dint of Sections 5 and 6 of the Matrimonial Property Act, the inheritance targeted by the Defendant is matrimonial property and is not excluded by any law. Its bequest to the Defendant simply means that he holds it in trust for the Plaintiff who has a beneficial interest in it. It does not matter that the Mediator and his team excluded the Plaintiff from the beneficiaries on account of her being a spouse to the Respondent. In fact, such exclusion solidifies her claim that the Respondent holds the property bequeathed to him in trust for her, as a beneficial owner.

25. The Plaintiff relied on the decision of the Court of Appeal in Mugo Muiru Investments Limited vs. E W B & 2 others [2017] eKLR as recognizing that the spouse had a beneficial interest in the property in question although her name did not appear on its title. Similarly, in M O vs. A O W [2017] eKLR, the High Court found that the wife had beneficial interest in matrimonial property which her husband had sold without the wife’s consent and therefore granted a temporary injunction to preserve it pending the determination of the contribution of each party and a determination of whether the wife was entitled to any compensation.

26. Regarding distribution, the Plaintiff relied on Section 7 of the Matrimonial Property Act. According to her, Section 6(3) which relates to pre-nuptial agreements is not relevant in these proceedings. She however cited Article 45(3) of the Kenyan Constitution which states that ‘Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage, and at the dissolution of the marriage.’ According to the Plaintiff, in the case at hand, none of the parties contributed any monies towards the acquisition of the matrimonial property and that their claims are based purely on their relationship with the deceased.

27. The Plaintiff pointed out that the Deceased did not have any biological child of her own. The Respondent and the 2 sisters in the Succession Cause (34/2018) before this court are all adopted children. So, just like the Plaintiff, they are children of the Deceased by operation of the law, not birth. In addition, it was noted that the Plaintiff’s deposition that the Deceased suffered ill-heath in her sunset years, and it was the Plaintiff who nursed and took care of her was not been denied or contradicted by the Defendant, and, indeed, this would only be natural given that the Plaintiff lived under the same roof with the Deceased.

28. It was therefore submitted that in the absence of a direct contribution by either the Plaintiff or the Defendant towards acquisition of the matrimonial property, it is a question of balancing the interests of one person against those of four others, three of whom are minors who cannot fend for themselves. Granted the circumstances, it was submitted that the matrimonial home should be given to the Plaintiff.

29. Similarly, bearing in mind the burden of bringing up three minors, one of whom is in kindergarten, as opposed to the cost the Defendant will incur taking care only of his interests, the mathematical equation is a ratio of 4:1, which translates to a fifth share for the 5 persons affected by the bequest to the Respondent (the Plaintiff, Respondent and the 3 children). A fifth share is equivalent to 20% of the net bequest.

30. It was therefore submitted that out of the inheritance that will come his way, the Respondent should be ordered to surrender and transfer to the Plaintiff 80% thereof.

31. The Plaintiff also drew the Court’s attention to one possible scenario in the succession cause before it which the Respondent might try to create with a view to defeating any orders of this court, and this is to either reduce his bequest or surrender it to his sisters altogether. It should be borne in mind that all his decisions in the succession cause must necessarily be for the interests of those to whom he holds their property/ interests in trust. In this regard, it was submitted that it may be necessary, depending on the finding that this court arrives at, to have the Plaintiff involved in the succession case as an Interested Party.

32. The Plaintiff also prayed for costs.

33. On his part, the Defendant submitted that the parties herein got married under Kamba Customary Law on 27th November, 2004. The two were blessed with three issues. The marriage was dissolved by Hon. M. Opanga, Senior Principal Magistrate Kangundo Law Courts, on 12th October, 2021.

34. It was submitted that the Defendant inherited part of the late MN’s Estate after the grant was confirmed on 22nd November, 2021. The Plaintiff herein then filed this instant suit claiming a share of the said estate despite the fact that she was not a beneficiary of the estate nor had the grant been confirmed bequeathing her then husband, the Defendant, with his share of the estate.

35. It was noted that in her submissions, the plaintiff’s counsel attempted to introduce matters of evidence through the bar and the Court was urged to ignore the same such as the allegation that the defendant is not a biological child of the Late MNM and that despite divorce, the plaintiff and the defendant reside in the same house and that the deceased was being nursed by the Plaintiff.

36. In the Defendant’s view, the following emerge as the issues for determination and direction;i.Does property acquired after divorce amount to matrimonial property?ii.Did the Plaintiff herein make any contribution to the part of the estate inherited by the Defendant?iii.Who is to bear the cost of this suit?

37. In his submissions, the Defendant relied on Section 6 of the Matrimony Property Act as well as the decision of the High Court at Kajiado in the Matrimonial matter ofTMW vs. FMC(2018) eKLR.

38. In the instant suit, it was submitted that the parties herein got married on 27th November 2004 under the Kamba Customary Law and later on divorced on 12th October, 2021. The grant which bequeathed the respondent herein with the property in question was confirmed on 21st November 2021. Whereas the plaintiff alleged that she was taking care of the deceased which allegations have been disputed by the defendant, a perusal of the originating summons would show no evidence has been tendered in support of the wild allegations by the plaintiff. This being the case, it was the Defendant’s position that the property in question cannot be regarded as matrimonial property. This is because it was acquired after the two parties herein divorced and thus not during the subsistence of the marriage and the same was also not acquired through any contribution by the plaintiff. It was therefore contended that the Plaintiff’s suit is misconceived and the same was instituted prematurely as it claims property which was still under ownership of the deceased.

39. It was noted that the Plaintiff has been making numerous attempts of benefiting from the estate of MN despite the fact that she is neither the deceased’s child nor beneficiary. For instance, immediately after the demise of the deceased she filed a petition for grant on 27th September 2018 which was in joint names with the respondent herein without his consent. This grant was later on revoked by the respondent’s sisters who are the deceased’s children.

40. It was further contended that the Plaintiff has not approached this Court with clean hands. This is because that whereas the Plaintiff claims to have sired children with the respondent herein, some were sired out of wedlock which consequently led to the divorce. According to the Defendant, the Plaintiff is playing the remorse card in bid of misleading this Court to impose parental responsibility on the respondent over children which he never sired contrary to Section 24 of the Children’s Act. The Plaintiff averred that he has always taken care of his biological children and undertakes to keep on with the same.

41. As regards the Plaintiff’s contribution to the estate inherited by the Defendant, the Defendant referred to Sections 7 and 9 of Matrimonial Property Act and guided by the above legal provisions, it was submitted that the Plaintiff herein did not make any contribution to the property in question towards its acquisition nor in its maintenance and thus is not legally entitled to benefit from it. This, it was submitted, is because the Defendant automatically acquired the property by virtue of being a beneficiary to the estate of MN as stipulated by the Law of Succession Act and consequently the Plaintiff did not play any role in that. Further, the property in question was acquired after the dissolution of the parties’ marriage and thus the Plaintiff did make any contribution towards its improvement.

42. The Defendant however conceded that he operated a shop with the Plaintiff herein by the name of [Particulars Withheld] stores which they relied on to support their family. That is the only property that the two parties herein had during the subsistence of their marriage and therefore should be treated as matrimonial property and shared equally between them as stipulated by the Matrimonial Property Act.

43. Consequently, the Defendant prayed that the Summons be dismissed with costs.

Determination 44. I have considered the pleadings, oral and written submissions.

45. The dispute revolves around the distribution of the property which is the subject of Machakos High Court Succession Cause No. 34 of 2018. That succession is in respect of the Estate of MNM (Deceased). The deceased was the mother of the Defendant herein and his sisters. Whether or not they were her biological children is beyond the scope of this determination. The parties herein were blessed with three children. Again whether or not some children were born out of wedlock is not for determination by this Court. It is however agreed that the parties herein resided in the same house as the deceased throughput their marriage.

46. The question that arises is whether the said house where they resided was matrimonial home.

47. Section 6(1),(3) and (4) of theMatrimonial Property Act,2013 provides that:-Meaning of matrimonial property(1)For the purposes of this Act, matrimonial property means—(a)the matrimonial home or homes;(b)household goods and effects in the matrimonial home or homes; or(c)any other immovable and movable property jointly owned and acquired during the subsistence of the marriage(3)Despite subsection (1), the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights.(4)A party to an agreement made under subsection (3) may apply to the Court to set aside the agreement and the Court may set aside the agreement if it determined that the agreement was influenced by fraud, coercion or is manifestly unjust.

48. Musyoka J. in P.O.M vs. M.N.K(2017) eKLR stated that:“This is a suit for division of matrimonial property…The prerequisites are that the parties ought to have been in a marriage, to have had acquired matrimonial property during coverture and for their marriage to have been dissolved as at the point orders on division of matrimonial property are being made…”

49. Similarly, in the case of T.M.W. vs F.M.C (2018) eKLR, Nyakundi J. opined 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 matrimonial property.”

50. Section 5 of the Matrimonial Property Act provides:-Rights and liabilities of a personSubject to section 6, the interest of any person in any immovable or movable property acquired or inherited before marriage shall not form part of the matrimonial property.

51. While interpreting Section 5 (supra) in E N K vs. J N K [2015) eKLR, Musyoka J. pronounced himself thus:-“From the language of the said Act, there is no provision which excludes inherited property from the definition of matrimonial property. Indeed, section 5 of the Act impliedly excludes it in the definition. According to section 5, the only time such property will not form part of matrimonial property (sic) where the inheritance was before the marriage…”

52. Mabeya J. on his part in SN vs. FM [2019] eKLR held that:-“24. The net effect of the foregoing is that any property acquired during the subsistence of the marriage, including that which is inherited forms part of matrimonial property. The only time that inherited property is excluded from matrimonial property is if it was acquired before marriage. Property that is inherited during the subsistence of the marriage is not excluded from matrimonial property except if it was acquired before marriage.”

53. From the foregoing decisions it is clear that an inherited property is not necessarily excluded from being matrimonial property unless the inheritance was acquired before the marriage. However, Section 9 of the said Act provides that:Where one spouse acquires property before or during the marriage and the property acquired during the marriage does not become matrimonial property, but the other spouse makes a contribution towards the improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made.

54. Therefore, even where the inherited property was acquired before marriage and therefore does not qualify as matrimonial property, if it is shown that the other spouse made contribution towards the improvement of the same property, that spouse acquires a beneficial interest in the property equal to the contribution made.

55. In this case it is clear that the Defendant’s interest in the property was during the marriage with the Plaintiff. Before then, the couple lived in the same property as if it was their matrimonial home. They had no other home and the children were sired while they were living in the said home. From the evidence on record, it is clear that the parties treated the said property as if it was their matrimonial home. In the Ugandan High Court, Mwangusya J. in Paul Kagwa vs. Jackline Muteteri (Matrimonial Cause-2005/23) [2006] UGHC 17 (18 May 2006) while citing Bossa, J. in John Tom Kintu Mwanga vs. Myllious Gafafusa Kintu (Divorce Appeal No. 135 of 1997) (unreported) expressed himself as hereunder:-“On the last issue of whether the petitioner is entitled to matrimonial property, I clearly believe that she does and I so hold. Matrimonial property is understood differently by different people. There is always that property which the couple chose to call home. There may be property which may be acquired separately by each spouse before and after marriage. Then there is property which the husband may hold in trust for the clan. Each of these should in my view be considered differently. The property to which each spouse is entitled is that property which the parties choose to call home and which they jointly contribute to.”

56. In my view, since the property in question was acquired during the marriage and since the deceased passed away after the parties herein had gotten married and the Defendant inherited part of her estate comprising of the house in which they were living, I find that, that house constitutes their matrimonial home. I therefore associate myself with the holding in P AW-M vs. C M A W-M[2016] eKLR, in which the Court expressed itself as hereunder:“As defined by section 2 of the Matrimonial Property Acta matrimonial home means premises occupied by the spouses. There is no evidence that the spouses used to live anywhere else apart from the Kilifi house. Between 2007 and 2008 there were no divorce proceedings. Although the premises were undergoing renovations, that cannot be a reason to disqualify the Kilifi house as a matrimonial home. That is where the two parties used to reside as husband and wife. It was therefore their matrimonial home. The plaintiff has known no other home in Kenya other than the Kilifi house. The premises were already owned by the defendant and she has been residing there up to now. The defendant lived in the house with the plaintiff for the period 2007 up to March 2009. The length of time taken between the occupancy of the premises is quite reasonable. That is where the defendant took the plaintiff as their home. I therefore find that the Kilifi house was a matrimonial home.”

57. Having arrived at the said determination, the next question for determination is the distribution of the said property, that is the share due to the Defendant from the estate of the deceased. Section 7 of the Matrimonial Property Act provides that:Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.

58. Based on section 7 aforesaid, it is my understanding that where the contribution towards the acquisition of matrimonial property can be identified, in the event of divorce or dissolution of the marriage, the said property will be divided between the spouses in accordance with their respective contribution towards the acquisition. In that event, there is no presumption of 50:50 ownership of the said property. In my view, the 50:50 presumption is only to be invoked where there is evidence that both spouses contributed towards the acquisition of the property and there is no way of determining each spouse’s contribution thereto. It is in that light that I understand the position in Falconer –vs- Falconer [1970] 3 All ER where Justices of Appeal held that:‘‘And the principles applicable to whether a matrimonial home standing in the name of the husband belonged to them both jointly (in equal or unequal shares) were that the law imputed to the husband and the wife an intention to create a trust for each other by way of inference from their conduct and the surrounding circumstances; an inference of trust would be readily drawn when each had made a substantial financial contribution to the contribution was stated to be such or indirectly as where both parties went out to work and one paid the housekeeping and the other paid the mortgage instruments; but whether the parties held in equal shares would depend on their respective contributions.’’

59. It is however clear that contribution need not necessarily be in financial terms since according to section 2 of Matrimonial Property Act, 2013 (hereinafter referred to as the said Act):“contribution” means monetary and non-monetary contribution and includes—(a)domestic work and management of the matrimonial home;(b)child care;(c)companionship;(d)management of family business or property; and(e)farm work.

60. It therefore follows that the mere fact that one spouse is not engaged in any income generating venture does not necessarily mean that the said spouse is not contributing to the acquisition of the matrimonial property.

61. On the other hand, section 14 of the Act provides that:“Where matrimonial property is acquired during marriage—(a)in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse; and(b)in the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal.

62. In determining this suit, this Court will therefore be guided by, inter alia, the above legal provisions.

63. In this case, the property in question was acquired, albeit through inheritance, during the marriage between the Plaintiff and the Defendant. Since it was an inherited property, the question of the respective contributions does not arise. Though it is contended that the Plaintiff did not aver that she was helping the deceased, it was deposed in the affidavit in support of the application that for the better part of her sunset life, the said mother (hereinafter referred to as “the deceased”), who died aged 86 years, suffered ill-health and required the Plaintiff’s constant, round the clock nursing hence the reason for sharing the same roof with her.

64. I therefore find that the Plaintiff did make some contribution towards the wellbeing of the deceased. As appreciated, under the Act domestic work and management of the matrimonial home as well as companionship and management of family business or property; and farm work all constitute contribution.

65. In the absence of evidence as to how much each party contributed, I have no difficulty in finding that both the Plaintiff and the Defendant equally contributed towards the acquisition and development of the matrimonial home.

66. The Plaintiff has urged this Court to take into account the fact that she is the one taking care of the children and to apportion the shares at the ratio 80:20. First, it must be noted that under Section 24(1) of the Children’s Act, it is provided that:Where a child’s father and mother were married to each other at the time of his birth, they shall have parental responsibility for the child and neither the father nor the mother of the child shall have a superior right or claim against the other in exercise of such parental responsibility

67. Accordingly, both the Plaintiff and the Defendant must share parental responsibility as long as the issues of their marriage remain, legally, under their care. This Court cannot, base its decision in distributing the properties of the marriage, on the fact that some children of the marriage are minors since the status of minority is not a permanent status and is bound to change with time. As to how much each of the parents ought to contribute is a matter for the Children Court.

68. The Court has also been urged to appoint the Plaintiff an interested party in the Succession Cause in order for her to protect her interest. With due respect that is not the duty of this Court when determining a matrimonial dispute. Issues of succession ought to be dealt with in a Succession Cause.

69. Having considered the issues raised before me in this Originating Summons, the orders which commend themselves to me and which I hereby grant are as follows:1. A declaration that all the properties bequeathed to the Defendant/ Respondent in High Court Succession Cause No. 34 of 2018 (Machakos): Estate of MNM, are matrimonial properties acquired jointly during the subsistence of the marriage between the parties herein, and were bequeathed to him to be held beneficially and/ or in trust for himself and on behalf of the Plaintiff.2. That the Plaintiff is entitled to one-half (1/2) share of the inheritance bequeathed to the Defendant in High Court Succession Cause No. 34 of 2018 (Machakos): Estate of MNM, (as more particularly stated in the Schedule in the Mediation Settlement Agreement dated 12/02/2021 filed with the Court and subject to settlement of any due debts).3. A mandatory injunction/Order does issue directing, requiring and compelling the Defendant to transfer 50% of the inheritance allocated to him in High Court Succession Cause No. 34 of 2018 (Machakos): Estate Of MNM, to the Plaintiff.4. Each party to bear own costs of this suit.5. Liberty to apply granted.

JUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 5THDAY OF MAY, 2022. G V ODUNGAJUDGEDelivered in the presence of:Miss Ngulukyo for Mr Munguti for the RespondentCA Susan