BAM v TOO [2022] KEHC 1454 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

MATRIMONIAL CAUSE NO. 1 OF 2019 (O.S)

BAM .............................................APPLICANT/RESPONDENT

VERSUS

TOO...............................................RESPONDENT/APPLICANT

JUDGMENT

The Originating Summons before me was brought pursuant to the provisions of the Matrimonial Property Act.

1. The Applicant, BAM has sought a declaration that the following properties were jointly owned by the Applicant and the Respondent, TOO;

(i)KISUMU/KOGONY/xxxx

(ii)KISUMU/KOGONY/ xxxx

(iii)KISUMU/KOGONY/ xxxx

(iv)NAIROBI/BLOCK xxxx

(v)PAJERO Registration KBC xxxx

2. It was the contention of the Applicant that the said properties were acquired by joint funds and efforts of the 2 parties herein, during the subsistence of their marriage.

3. In the event, the Applicant requested the Court to have the properties settled for her benefit, in such a manner as the Court deems just and equitable.

4. By his Replying Affidavit, the Respondent stated that all the properties were acquired through his sole financial efforts.

5. The Respondent further deponed that the 3 properties which are located in Kisumu were bought during the subsistence of their marriage.

6. However, KISUMU/KOGONY/xxxx was registered in his sole name.  His explanation was that that property was registered in that manner because it was purchased by the Respondent alone.

7. As regards KISUMU/KOGONY/xxxxand NAIROBI/BLOCK xxxx, the Respondent deponed that the same were purchased in the year 2000, which was before he met the Applicant.

8. The Respondent credited his friend, one Mfor over-seeing the running and maintenance of the property located in Nairobi.  Apparently, Mr. Macharia is a co-owner of NAIROBI/BLOCK xxxx.

9. In relation to the Pajero, the Respondent asserted that the funds used to purchase it, were his, exclusively.  However, he concluded that at all material times, it was the Applicant who had been using the vehicle, for her benefit.

10. It was the understanding of the Respondent that the ownership of Matrimonial Property vests in spouses according to the contribution of each such spouse, towards the acquisition of the property.

11. At paragraph 19 of his affidavit, the Respondent said that;

“….. it is possible for spouses to owncertain properties but not in equalshares.  Thus it would be prudent forthe Court to look into what each partybrought to the table, for the purposesof distribution of matrimonialproperty in the case of a matrimonialdispute.”

12. As far as the Respondent was concerned, the fact that the Applicant was his spouse, at some point, did not give her one-half of the properties, automatically.

13. In my understanding, the Applicant has not demanded 50% of all the matrimonial property.  Her claim was for such portion as the Court deems just and equitable.

14. The Respondent contends that it was only the matrimonial home, which is built on L.R. NO. KISUMU/KOGONY/xxxx, that is matrimonial property.

15. Nonetheless, he emphasizes that although the said matrimonial home was jointly owned by the parties herein, the same had been built solely by him.

16. On the other hand, the Applicant emphasizes that she built the home single-handedly, between 2010 and 2011, when the Respondent lived and worked in Liberia.

17. The Title Deed for parcel No. xxxxis in the name of the 2 parties.  The said Title Deed is dated 13th July 2007.

18. As the parcel No. xxxx is the matrimonial home, it is definitely matrimonial property, pursuant to the provisions of Section 6 (1)of the Matrimonial Property Act.

L.R. NO. KISUMU/KOGONY/xxxx

19. The Title Deed was issued on 31st October 2013, and it is in the name of the Respondent.

20. The Applicant has not provided proof of the date of acquisition.

21. On the other hand, the Respondent deponed that that parcel of land was purchased before the two parties herein met.

22. Considering that the marriage between the parties was solemnized on 15th August 2008, it does appear to me that the parcel No. xxxxwas acquired during the subsistence of the marriage.

L.R. NO. KISUMU/KOGONY/xxxx

23. The Title Deed dated 24th October 2007 is in the names of the two parties.  By making the conscious decision to have the property registered in their names, the parties are deemed to have chosen to own it together.

24. Therefore, when they divorced, the property which was owned by the two parties, ought to be divided between them.

NAIROBI/BLOCKxxxx

25. That property is owned by five people, namely;

(a) IMM,

(b) JNN,

(c) ANM,

(d) COO, and

(e) TOO.

26. The Certificate of Lease was issued on 3rd December 2001.

27. I find that the said property was not acquired during the marriage between the Applicant and the Respondent.

28. However, the parties had a mutual understanding, through which the Applicant collected rents from the units which “belonged”to the Respondent.

29. In July 2012, the parties opened a joint account, into which the rental income was deposited.

30. In my considered opinion, the fact that the Applicant was a beneficiary from the rental income did not, of itself, make the property, matrimonial property.

31. But I do find that the Applicant was an active participant in the maintenance of the rental units.

32. By being required to have the said units well maintained, the Applicant added value, because the maintenance enabled the rental units to keep on attracting tenants.

33. It would therefore only be fair to have the parties share in the units.

34. Nonetheless, the acquisition and development was undertaken by the Respondent, which therefore entitles him to 75% of the units which “belong to him.”

MOTOR VEHICLE PAJERO REG. KBCxxxx

35. The Respondent purchased the vehicle using his funds.  However, he has magnanimously offered to have it deemed as part of the matrimonial property, which may be distributed.

CONTRIBUTION BY APPLICANT

36. By dint of the provisions of Section 6 (3)of the Matrimonial Property Act, a spouse acquires a beneficial interest in the property, which interest is equal to the contribution made.

37. It is well settled that contribution need not be financial.  Domestic work and management of the matrimonial home is recognized as contribution.

38. In this case, the Applicant did a lot of domestic management, whilst the Respondent was working in far-off Liberia.

39. The Applicant also looked after their child.

40. Thirdly, the Applicant was very actively involved in the collection of rents and also the maintenance of the rental units in the Nairobi property.

41. All those things are recognized as contribution.  And although it may not be possible to quantify such contribution in terms of money, the Court is enjoined to take the said contribution into account when determining the manner and the extent that the distribution of the matrimonial property would be carried out.

42. Although the Applicant has submitted that she is the person who contributed the major portion towards the acquisition and maintenance of the matrimonial property, I hold the considered opinion that that was not proved by verifiable evidence.

43. Ultimately, I find that the vehicle should be transferred to the Applicant absolutely.  She has utilized it all along, and there is no reason why it should be taken away from her.

44. Kisumu/Kogony/xxxxis the matrimonial home.  However, the evidence shows that it is the Respondent who currently resides within it, together with his “second family.”

45. I find that although that property should have been shared equally between the two parties, it would be imprudent to do so in the prevailing circumstances.

46. Justice demands that Kisumu/Kogony/xxxx be transferred to the Respondent.  By so doing, the matrimonial home of the “second family”would remain intact.

47. Having been given the matrimonial home, I find that the Respondent must give some other property to the Applicant, to compensate her for the share she should have got.

48. Parcel No. Kisumu/Kogony/xxxxis 0. 0188 Hectares; which is the same size as Kisumu/Kogony/xxxx.  However, the latter property was undeveloped.

49. And as the Applicant actively engaged in the development upon the parcel xxxx, an appropriate compensation must take into account the value of the asset being left to the Respondent.

50. In any event, Parcel No. xxxxwas apparently acquired compulsorily by the National Land Commission.

51. I therefore find that the compensation to be paid for that parcel be divided equally between the 2 parties.

52. That therefore leaves Parcel No. Kisumu/Kogony/xxxx, which is 0. 03 Hectares.  In my considered view, that parcel of land would be an appropriate compensation to the Applicant for the share she gave up in the matrimonial home.

53. Ultimately, I order that each party should bear his or her own costs of these proceedings.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 10TH DAY OF MARCH 2022

FRED A. OCHIENG

JUDGE