BONNIE SUE DUNBAR v WAYNE MICHAEL ERLANK [2004] KEHC 49 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

H.C.C.C. NO. 4 OF 2003 (O.S.)

BONNIE SUE DUNBAR.............................................................. PLAINTIFF

Versus

WAYNE MICHAEL ERLANK...............................................RESPONDEAT

JUDGMENT

This Is an Originating Summons brought under the provisions ofSection 17 ofthe Married Women's Property Act of 1882 of Englandas well as under Section 3 (1) of the judicature Act Cap 8 of the Laws of Kenya,

The applicant Dr. Bonnie Sue Dunbar has sought certaindeclarations against the respondent Wayne Michael Erlank,

The applicant has sought   the following orders.

1.   That this Honourable Court be pleased to declare that theimmovable and movable properties numbered  I-IX in theSchedule attached hereto are the sole and exclusive-property of the plaintiff BONNIE SUE DUMBAR

2. Thatthe Defendant WAYNE MICHAEL ERLANK bepermanently restrained from asserting any claim, interest ortitle in the immovable and movable property set out in theSchedule, or from attaching, disposing, alienating, wastingor otherwise interfering with the said properties and thePlaintiffs quiet title, possession and enjoyment thereof.

3. That the Defendant WAYNE MICHAEL ERLANK beordered to bear the  costs of these, proceedings in any event.

4. Such other relief or orders as this Honourable Court maydeem fit and just in the circumstances of the case.

SCHEDULE

LIST OF MOVABLE AMD IMMOVABLE PROPERTY

COMPRISING THE PLAINTIFF'S ESTATE

1. Real Estate: Parcels of Land known as Land ReferenceNumbers 10126/2, 10126/3, 10126/4 and 10126/5, togetherwith the building and improvements thereon, situate in theKaren, Nairobi.

ii..ShareholdingsOne (1) share in Karen Blixen CoffeeGarden and Cottages Ltd which runs a restaurant and hotelbusiness at Karen Nairobi.

iii.Furniture:2 King size bedroom sets, formal dining tableand 6 Chippendale chairs; Chippendale antique glasscabinet, formal hand carved dining cabinet, 2 hide-abedcouches, modern glass dining cabinet, wrought iron diningtable, 5 book cases, antique writing desk

,iv.Appliances andelectronics; 4 TV sets, two DVD players,1 VHS machine, Toshiba computer, DVD projector, Surroundsound audio system, one electric four burner stove.v. Art: 6 Persian antique and Semi-antique rugs, Larsen Lionpaintings, Antique gold Chinese museum mounted Cloth,Chinese ivory antiques, Jaguar print framed, Lion Printframed. Artificial flowers in vases and baskets, Japaneseivory inlaid two panel screen, 6 wildlife photos, set of fourfeline prints, 6 wood carving wall hangings, 20 brass andwood candle sticks, 8 glass flower vases. Miscellaneousknick-knack carvings of elephants and other animals

vi Crockery and Kitchenware:  i full set gold rimmedLennox china, 1 full set clear glass china, 1 set black onyxchina, 1 set plain white china, 3 full sets of silver waresettings, one  full set up antique red and green depressionglass china, one overhear appliance hanger and 12 highquality cooking pots, skillets and pans. Electric Chinese wok,electric microwave, electric water heater, 4 large servingtrays, 1 gas stove 2 electric food processors, electric canopener, electric crock pot, 4 wood storage boxes, 15 cookingglass bowls, 20 glass serving bowls, 6 wood serving bowls, 4Pewter serving platters, 8 crystal pitchers, 6 sets of 8 crystal glasses (wine, water, champagne)and pitchers, electric tray warmer miscellaneous cooking and pitcherselectric tray  warmer  ,  miscellaneous cooking utensils.

Vii Miscellaneous: 2 Camping tents, camping gas barbecueunit, 2 sleeping bags, 2 camping chairs, 10 sets king-sizesheets, 6 king size duvet covers, 6 blankets, 4 sets curtains,full set of scuba diving equipment, Nikon 35 mm camera and accessory lenses, Canon 35 mm camera. Books (over 400);video and DVD library (over 200)viii  Motor vehicle: Toyota Rav 1996 model registration number KAN 058Q

ix.   Terminal benefits:U$ 100,000/= per annumwhich she will earn until the year 2004The application is premised on the grounds that;

a)                 The properties set out In the Schedule were acquiredby the Plaintiff before the marriage and/or utilizing herown resources obtained prior to the marriage, and arethe exclusive and separate property of the Plaintiff anddo not constitute matrimonial or joint property,

b)                That the Defendant did not and has not contributed tothe acquisition of the properties belonging to thePlaintiff as set out in the Schedule and has not rightinterest or title whatsoever in the same.

c)                 The defendant has deserted the. plaintiff; committedadultery and has attempted to wrongfully andaggressively assert an interest and title in the said properties with a view to undermining the plaintiffsexclusive ownership and title thereof

,d)   There is a question and dispute regarding title andpossession of the properties set out in the schedule.

The defendant did not enter anappearance nor did he file adefence despite having been served by way of substituted service.The application was therefore heard exparte and the plaintiffadduced evidence in support of the prayers. In addition to hertestimony the plaintiff relied on her sworn affidavit dated 1st April2003 and produced several documents as exhibits.

According to the plaintiff who is an American citizen domiciled inthe Republic of Kenya,she married the defendant on the 12thMarch, 2001,

There are no children to the marriage and the defendant is aSouth African National. The marriage was short lived, as soonthereafter the defendant 'was involved in anextra marital affair withanother woman in South Africa according to explicate e-mailcommunications exchanged between the defendant and his lover. Itwould seem when the Plaintiff queried the extra marital affairs the defendant deserted her since August 2002 and he is currently residing in the Republic of South Africa. Prior to his desertion the defendant had filed a Separation cause in the  High courtvide highcourt judicial separation  cause No.135 of  2002.   He however did not serve the plaintiff with the pleadings which she became aware of later on after the respondent deserted. The defendant has also in October 2002 filed proceedings, in the Republic of South Africa Transvaal Provincial Division Case No. 26834 of 2002. The defendanthas sought for anorder of divorce andpayment of a sum of R400,000/= and U$ 100,000/= as he claim he married the plaintiffunder a Community of Property Law.

This is what prompted these proceedings the plaintiff was genuinely apprehensive that  her proprietary rights over the properties contained in the schedule here above which are situated in Kenya may be in jeopardy.interim orders to preserve the properties were made on 15th may 2003.

The plaintiff was a professor for 20 years at Bayler College of medicine in Houston Texas.  SHE IS A MOLECULAR and cellular biologist by profession. Currently she is the Managing Director of Karen Blixen Coffee Garden and Cottages Ltd. which she purchased uponretirement from her position as a full time professor in the year 2001.

In 1999, the plaintiff purchased land in Karen area of Nairobi known as LR NOS.10126/2, 10126/3, 10126/4 and 10126/5 together with the building and improvements thereon at a price of twohundred and seventy thousand pounds sterling (£270,000), Shemade the entire purchase price from her own resources.- The sale agreement  was  between her  and  Frank Sutton and the property was transferred to her on 29th December 1999.

The defendant did not contribute to the purchase price, theproperty was charged to secure the repayment of the balance of thepurchase price The plaintiff produced documents to show how she-transferred funds from her terminal benefits from her previousemployer, she also sold herhouse inthe United States of America,her Mercedes motor vehicle in order to invest further in the businessshe undertook. The plaintiff also incorporated the company inJanuary 2000 which runs the business. She produced copies of thememorandum and Articles of Association of Karen Blixen CoffeeGarden and Cottages Limited.

The defendant is neither a shareholder nor a director of thecompany. When the plaintiff married the defendant they settled inKenya but the plaintiff settled all the bills in respect of house, rent forthe premises they occupied in Karen,

The plaintiff continued to transfer funds to the defendant'saccounts as per the bundle of document. The defendant did notengage in any income generating income,, he brought a sum of US $23,000 which was advanced to the company. The plaintiff entrustedthe signing of cheques of the company especially when the plaintifftraveled outside of the country.

According to the plaintiff the defendant made unauthorizedwithdrawals of money and other underhand activities that made thecompany loose colossal sums of money. This Is in addition to usingthe restaurant extravagantly to entertain himself his friends andusing other company facilities such as telephone and e-mails andrunning high bills.

Despite advancing this money the defendant did not acquireshares or any interest in the company he was not an employee ofthe company and therefore has no claim on the land or the business.

As for the sum of US$ 23,000/= is concerned the defendant is acreditor whose claim should be set off from the money he embezzledfrom a company.

I have given very careful consideration to the pleadings filedherein, the testimony by the plaintiff and the entire file of papers aswell as the documents which were produced as exhibits. I amsatisfied that the plaintiff Is the sole registered proprietor of theparcels of land stipulated in the schedule No.1of the application.

These properties were acquired before the marriage. Theplaintiff financed the purchase and there are documents to show thefunds emanated from her accounts in the United States of America.The parties got married on 12th March 2001 and the defendantdeserted in the month of August 2002 thus merely after 17 months.The plaintiff transferred her entire lifetime savings to Kenya. Shebought the land and invited other partners in the company that runsthe business. This is a separate entity from the plaintiff. It is clear from the documentsthat the defendant has no shareholdings in the companyand he isnot a director. This company was alsoIncorporated in the year 2000 before the ill fated marriage took

place. Accordingly I am satisfied that the defendant Is not entitled toone (1) share In Karen Blixen Coffee and Garden Cottages which runsa restaurant and hotel business in Karen,

The plaintiff is genuinely apprehensive that the defendant whohas decided to take out proceedings, in South Africa claiming 50%shares in her land and business might deprive her of her life longsavings,

If the defendant did not make a contribution to the acquisitionor improvement of the properties on what basis would he be entitledto a 50% of the property. The properties were acquired before themarriage and the funds came from the plaintiff’s accounts andinvestments in America,

Indirect contribution is usually recognized if a spouse hasdedicated his/her life to offering indirect services that enables theother spouse put more efforts in acquisition of property. Suchindirect services are child rearing, home making, looking after theelderly parents, relatives and generally supporting the workingspouse who intern is able to acquire properties within the marriage.This marriage was extremely short lived, there were no children and it was dogged by stress and misunderstandings due to defendant'sunfaithfulness and underhand activities with the company accounts.

I am satisfied that the defendant did not make any direct orindirect contribution to the acquisition of the. properties listed in theschedule here above nor did he contribute to their improvements.

Accordingly I find that the properties were acquired solely bythe plaintiff whose proprietary rights are duly protected under theconstitution of Kenya like all other civilized constitutions of othercountries "which guarantee and offers protection from deprivation ofproperty. By virtue of that right people arefree to determine andpursue their economic development. The plaintiff who is a cherishedInvestor hasopportunities to conclude contracts acquire propertiesmanage herbusiness, and freely dispose of herproperty etc. theKenyanlaw protects her fundamental rights.

In conclusion therefore I find that the plaintiff/applicant hasproved her case within the set standards. I accordingly allow theOriginating Summons dated 1st April 2003 and grant her prayers I, 23 and 4 as prayed.

It is so ordered.

Judgment read and signed on14TH  July 2004

MARTHA KOOME

JUDGE