HAK v POK [2022] KEHC 16052 (KLR)

HAK v POK (Matrimonial Suit E018 of 2020) [2022] KEHC 16052 (KLR) (Family) (2 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16052 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Matrimonial Suit E018 of 2020

MA Odero, J

December 2, 2022

Between

HAK

Plaintiff

and

POK

Defendant

Judgment

1. The Plaintiff herein HAK filed in the High Court the originating summons dated September 10, 2020 seeking the following orders:-'1. A declaration be issued that the properties listed herein with the improvements and the building thereon were acquired by joint funds and efforts of the parties herein during the subsistence of their marriage and registered in the name of or in the position of the Defendant and/or both parties and the same is jointly owned by the Plaintiff and the Defendant being:a)Nairobi/Block/XXXX located in Fedha Estate Nairobi andb)Suna East Wasweta XXXX located in Migori County.2. An order that the properties be shared equally and if incapable of being shared that they be sold and the net proceeds be shared equally between them.3. That the Defendant transfers at his own costs and expense proportions of the said properties to the Applicant.4. A declaration that the Defendant is accountable to the Plaintiff in respect of all the income and rental proceeds in respect of the matrimonial properties.5. That the properties and the income aforesaid be settled in proportions aforesaid or as the court may order.6. Spent7. The Defendant do bear the costs of this application.

2. The summons which was premised upon sections 1A, 1B and 3A of the Civil Procedure Act, Order 37 of the Civil Procedure Rules and all other enabling provisions of the law was supported by the Affidavit of even date and the Further Affidavit dated October 13, 2020 sworn by the Applicant.

3. The Defendant POK opposed the application through his Replying Affidavit dated October 5, 2020 and the supplementary Affidavit dated December 10, 2020.

4. The matter was canvassed by way of viva voce evidence. The Applicant called three (3) witnesses in support of her case whilst the Respondent also called three (3) witnesses in support of his case.

The Evidence 5. The Plaintiff who is a Kenyan citizen resident in New Jersey, United States of America told the court that she got married to the Respondent in 1984 at the Registrars office in Kisumu, Kenya. The Plaintiff states that the Defendant married her as a second wife as he was already married to a first wife who coincidentally was also called ‘HA. The couple then moved to the United States of America where they divorced on March 9, 1990.

6. Following this first divorce the couple remarried in the USA on September 4, 2001. They divorced a second time on September 10, 2006. The couple were blessed with one child, a son who was born on January 2, 1996.

7. The Plaintiff avers that during their marriage(s) the couple jointly purchased two (2) properties being -i.LR No Nairobi/Block/XXXX in Fedha Estate Nairobi (hereinafter referred to as the ‘Fedha Property’) andii.Title Number Suna East Wasweta XXXX located in Migori County (hereinafter referred to as the ‘Migori Property’).

8. Whereas the Migori Property was registered in the name of both the Plaintiff and the Defendant, the Fedha Property was registered in the sole name of the Defendant. The Plaintiff stated that the defendant all along assured her that the Fedha Property was registered in their joint names and claims that the Defendant even provided her with a copy of a certificate of lease issued on February 24, 2005 (A copy of which is annexed to the Supporting Affidavit dated September 10, 2020) indicating that the said property was registered in their joint names.

9. The Plaintiff states that on or about November 21, 2016 she instructed her Advocate to conduct an official search on the Fedha Property and to her surprise it was discovered that the property was registered in the sole name of the Defendant. A copy of the certificate of official search dated November 21, 2016 is annexed to the Supporting Affidavit.

10. Upon realizing that her name did not appear in the records held at the Registry of Lands as a joint owner of the Fedha Property the Plaintiff caused a caution to be registered on the property on January 30, 2017.

11. However upon conducting another official search on October 9, 2019 the Plaintiff discovered that notwithstanding the caution which she had registered against the property the Defendant had still managed in August 2019 to charge the Fedha Property to Equity Bank for a sum of Kshs 5,000,000. A copy of official search dated October 9, 2019 is annexed to the Supporting Affidavit. That search confirms that the Fedha Property was on August 1, 2019 charged to Equity Bank for Kshs 5,000,000/-.

12. The Plaintiff testified that the Fedha Property is developed with double storeyed residential units which have been converted to a school. That the current value of the property is Kshs 21 million and the Property now fetches a quarterly rent of Kshs 400,000 which the Defendant takes and utilizes alone to her exclusion despite her having contributed towards the purchase of this Fedha Property.

13. The Plaintiff further states that the Respondent once attempted to sell the Migori Property behind her back without seeking her consent and/or authority despite the fact that she was a joint owner of the said property. That she only managed to forestall that sale by registering a caution against the said Migori Property.

14. The Plaintiff now prays that the court issue a declaration that both the Fedha Property and the Migori Property are matrimonial property and that orders be made that the two (2) properties be shared equally between the parties. That if the properties cannot be so shared then the same be sold and the proceeds be divided equally between the Applicant and the Respondent. The Plaintiff further seeks a declaration that the Respondent account to her in respect of all income and rental proceeds derived from the said matrimonial properties.

15. In response to the Defendants allegation that the properties were acquired during the period the couple were divorced, the Plaintiff explains that the divorce between herself and the Defendant was not genuine. That the couple had an agreement by which they would divorce and each marry an American Citizen to enable them acquire Green cards (legal status) to remain in the USA. The Plaintiff states that she entered into a fake marriage with a Mr HW the Defendant likewise entered into a fake marriage with one Mrs CW. That throughout the period of this purported divorce the couple continued to cohabit as man and wife.

16. PW2 MO an elder sister to the Plaintiff. She relies entirely upon her written statement dated July 13, 2021. PW2 confirms that the Plaintiff and the Defendant first got married in Kisumu in the year 1983. That the Defendant left to the USA in the year 1986 and the Plaintiff left to join him there in 1987. She confirms that the couple bore one child a son together.

17. PW2 testified that she too relocated to the USA in 1998. However, that whilst she still in Kenya the Plaintiff and the Defendant both used to send her money through a Mr HO which money she handed over to a cousin of the Defendant known as Mr AO. That the money was sent to facilitate the acquisition and development of the Fedha Property. PW2 states that Mr AO was overseeing matters relating to the said property.

18. PW3 told the court that she is aware that the funds to purchase the Fedha Property were derived from the fact that the Plaintiff bought out the Defendants share of the residential property, which the couple owned in New Brunswick, New Jersey USA.

19. PW2 HO told the court that the Plaintiff was his niece. He states that he also knew the Defendant through his brother. That the couple first got married in Kisumu in 1983. That the Plaintiff came to the USA in 1987 to join her husband (the Respondent). PW3 states that he participated in several meetings in an attempt to reconcile the couple before they finally divorced in the year 2005.

20. PW3 told the court that though he was resident in the USA, he used to travel home to Kenya regularly. That since in the 1990’s there were strict restrictions on transfer of foreign currency, the couple would give him cash when he traveled to Kenya to deliver to PW2.

21. The witness further states that he was aware that the Plaintiff and the Defendant co-owned the Fedha and Migori Properties as well as a house in the USA. He states that the Plaintiff bought out the Defendant’s share of the house in the USA.

22. As stated earlier this application was opposed. The Defendant denies that either the Fedha Property or the Migori Property were acquired during the subsistence of his marriage to the Plaintiff.

23. The Defendant asserts that he purchased the Fedha Property alone using his own funds and that the same was transferred and registered in his own name. The Respondent denies having ever assured the Plaintiff that the Fedha Property was registered in their joint names and denies ever having shown the Applicant a Title Deed indicating this. He dismissed the Title Deed produced by the Applicant as a forgery.

24. The Defendant accuses the Plaintiff of having misled the court by concealing the fact that their first marriage was dissolved on March 9, 1990 after which the Plaintiff got married to a Mr H whose name she took whilst the Respondent married one CW.

25. The Defendant admits that the couple re-married in the year 2002 but divorced a second time on May 10, 2006. According to the Defendant he purchased the Fedha Property sometime in July 1994 after his first marriage to the Plaintiff had been dissolved. That the fact that the Title to the property was issued in his sole name is proof that the property exclusively belongs to him.

26. The Defendant admits that he charged the Fedha Property to Equity Bank but denies that any caution was ever registered against said property. That if any such caution had existed he would not legally have been able to charge the property to the bank.

27. The Defendant goes on to aver that he single handedly developed the Fedha Property between the year 1994 – 1999 during the period when he was divorced from the Plaintiff. He states that he has single handedly been paying the rates for the Fedha Property.

28. The Defendant asserts that both the Fedha and Migori Properties belong exclusively to him. That they do not constitute matrimonial property and he urges the court to dismiss the originating summons dated September 10, 2020 in its entirety.

29. DW2 AO told the court that the Defendant was his cousin. The witness stated that he was previously a manager of a Co-operative Society. DW2 states that the Plaintiff is actually the second wife of the Defendant. That the Defendant has a first wife who coincidentally is also known as HAK.

30. DW2 told the court that he was aware that the Plaintiff and Defendant married each other and divorced twice.

31. DW2 told the court that it was he who alerted the Defendant about the availability land being offered for sale by East African Building Society. That the Defendant sent him an amount of Kshs 425,000 to purchase the property for him. That the money was sent in instalments but he did not know the source of the funds. DW2 went on to state that having purchased the land, the Defendant put him in charge to oversee the development of the property from 1994-1999. That the Defendant sent funds, which DW2 used to develop the Fedha Property. DW2 insists that at no time did he ever receive instructions from the Plaintiff regarding the Fedha Property and at no time did the Plaintiff ever make any enquiry to DW2 about the said property.

32. DW3 HAK told the court that she is the first wife of the Defendant and states that they got married in 1979. DW3 confirms that she knew the Plaintiff as her co-wife. She relied on her written statement dated October 27, 2021. DW3 told the court that it was she as the first wife who had a right or claim to the Fedha Property.

33. Upon conclusion of oral evidence the parties were invited to file and serve their written submissions. The Plaintiff filed the written submissions dated June 21, 2022 whilst the Defendant relied upon the written submissions dated July 27, 2022.

Analysis and determination 34. I have carefully considered the originating summons dated September 10, 2020, the Reply filed by the Defendant, the evidence adduced before court as well as the written submissions filed by both parties. The issues which arise for determination are:-(1)Whether the two properties Nairobi/Block/XXXX located in Fedha Estate Nairobi and Title Number Suna East/Wasweta XXXX located in Migoro County constitute matrimonial property.(2)Whether the Plaintiff made contribution towards the acquisition and development of the said properties.(3)Whether the Plaintiff is entitled to a share of the suit properties and if so in what proportion.

(1) Matrimonial Properties 35. The Plaintiffs case is that the two suit properties were acquired jointly by the couple during the period of their coverture and thus the said properties constitute matrimonial property. The Defendant on the other hand categorically denies that the two properties were acquired during the period of coverture and further denies that the same were acquired jointly by himself and the Plaintiff. The Defendants position is that he acquired the said properties single handedly.

36. Section 17 of the Matrimonial Properties Act, 20B provides as follows:-'(1)A person may apply to a court for a declaration of rights to any property that is contested between that person and a spouse or a former spouse of the person.(2)An application under subsection (1)—(a)Shall be made in accordance with such procedure as may be prescribed;(b)May be made as part of a petition in a matrimonial cause; and(c)May be made notwithstanding that a petition has not been filed under any law relating to matrimonial causes'.

37. Therefore under section 17 a spouse or former spouse may file an application seeking 'declaratory orders' in respect of matrimonial property

38. Much time and energy was spent in this case discussing the question of whether the Plaintiff was a ‘spouse’ to the Defendant. By virtue of Section 17 the question of the subsistence of a marriage is not a bar to the Plaintiffs right to seek declaratory orders in respect of matrimonial property.

39. However with respect to the issue of division of matrimonial property the situation is different. A court cannot make or order for division of matrimonial property unless it is demonstrated that the marriage has been dissolved.

40. Section 6 of the Matrimonial Property Act defines Matrimonial Property as follows:-(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.'

41. From section 14 of the same Act provides as follows:-'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.'

42. Therefore under the Matrimonial Property Act 2013, there are two critical elements which would lead to a conclusion that the property in question was matrimonial property.(i)The property is registered in the joint names of the parties or(ii)Even if registered in the name of only one party it must be shown that the subject property was acquired during the subsistence of the marriage.

43. With respect to the Migori Property which is Title Number Suna East/Wasweta XXXX there appears to be no contention. The Green Card for the Migori Property indicates that the same was transferred to the Plaintiff and the Defendant as joint Proprietors on December 21, 2010. More importantly, during the hearing the Defendant conceded that the Migori Property is matrimonial Property and stated that he has no objection to the Plaintiff being granted a fifty per cent (50%) share of the said Migori Property.

44. Regarding the Fedha Property, the evidence is that the same is registered in the name of the Defendant alone. The copy of Title Deed shows that the property is registered in the sole name of POK (the Defendant herein). Annexed to the Replying Affidavit dated October 5, 2020 is a copy of the transfer of lease for LR Number Nairobi/Block XXXX dated July 19, 1994 into the name of the Defendant (Annexture POK ‘2’).

45. The Plaintiff herself admitted that upon conducting an official search at the land Registry it was found that the registered proprietor of the Fedha Property was the Defendant. A copy of the certificate of official search is annexed to the Supporting Affidavit dated January 10, 2020.

46. In her evidence the Plaintiff claims that the Defendant showed her a copy of Title indicating that the Fedha Property was registered in their joint names. She exhibited a copy of a certificate of Title for LR No Nairobi/Block 97/1617 indicating that the property was on February 24, 2005 registered in the joint names of the Plaintiff and the Defendant. The Defendant denies that he ever showed the Plaintiff this Title and dismisses the same as a forgery.

47. Firstly, the fact that the certificate of appeal search indicates that the Defendant is the sole registered proprietor of the Fedha Property means that this is the genuine and legal position with regard to the ownership of said property. Any Title document indicating otherwise cannot be a genuine document. This court can only rely on the official records held at the lands office.

48. Moreover the copy original Title issued in the name of the Defendant (Annexture POK 3(b)) indicates that the property was transferred to him on August 16, 1994 and not in the year 2005 as indicated in the document produced by the Plaintiff.

49. Secondly, the original lessee of the Fedha Property is Tassia Coffee Estate Limited as is evidenced by the copy of the original lease dated April 1, 1980 (Annexture ‘POK 3(a)’) and not the Government of Kenya as indicated in the document produced by the Plaintiff.

50. Finally, the Defendant has annexed to his replying Affidavit a copy of the Transfer of lease dated July 19, 1994 from [particulars withheld] the Vendor of the properties to himself as the buyer (Annexture POK-‘2’). From the evidence available, I have no hesitation in finding that the Fedha Property is registered in the name of the Defendant as sole proprietor. The copy of Title produced by the Plaintiff is not a genuine record and does not reflect the true ownership of the Fedha Property.

51. As stated earlier the fact that a property is registered in the name of one spouse is not a bar to the court making a declaration that the same constitutes matrimonial properties as long as it is proved that the said property was acquired during the subsistence of the marriage between the two.

52. In the case ofGWG v FGW [2019] eKLRthe court stated thus:-'In situations where property is acquired during the subsistence of a marriage like in this case, section 14 of the Act provides that there is rebuttable presumption where property is acquired in the name of one spouse that the property is held in trust for the other spouse and, in the names of spouses jointly, that their beneficial interest in the matrimonial property are equal.'

53. The critical question then is whether this Fedha Property was acquired during the subsistence of a marriage between the Plaintiff and the Defendant. It is trite law that he who alleges must prove. The Evidence Act places the burden of proof of any fact on the person who wishes to rely on the same section 107 of the Evidence Act Cap 80, Law of Kenya Provides as follows:'Burden of Proof(1)Whoever desires any court to given judgment as to nay legal or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.'

54. Therefore the Plaintiff has the legal burden of proving that the Fedha Property was purchased during the subsistence of her marriage to the Defendant.

55. In the case of ENN v SNK [2021] eKLR the court held that'This court finds that it is trite law that a matter regarding division of matrimonial property ought/shall have the following facets by either party:a.The fact of a valid, legal, regular marriage in law;b.Dissolution of such marriage by/through an order of the court.c.That earmarked/listed property constitutes matrimonial property; acquired and developed during subsistence of the marriage.d.Contribution by each party to the acquisition/development.'

56. Similarly in T M W v F M C [2018] eKLR the Hon Justice R Nyakundi stated at page 3 of the judgment that:-'Basically 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 the matrimonial property.'

57. The parties herein have had a very colouful marital history. They both agreed that they initially got married in Kenya the 1980’s. After re-locating to the USA the couple divorced for the first time on March 9, 1990. Annexed to the Defendants Replying Affidavit is a copy of the Divorce Judgment Number 363 of 1990 (Annexture POK – ‘1’) issued by the Supreme Court of the State of New York in the USA. In that judgment, the court in New York ruled as follows:-'1. The marriage between the Plaintiff HAK and the defendant PK is dissolved on the evidence found in the findings of fact and conclusions of law by reason of the abandonment of the Plaintiff by the defendant for a period of more than one year in accordance with Domestics Relations Law section 170 sub-divisions 2.

2. The Plaintiff shall be authorized to resume the use of her maiden name which is A.'

58. Following this first divorce the Plaintiff and the Defendant re-married on September 4, 2001. A copy of the Certificate of Marriage in respect of this second marriage issued by the State of New Jersey USA on October 7, 2008 is annexed to the Plaintiffs supporting Affidavit dated January 10, 2020. The couple remained in this second marriage for five (5) years then eventually divorced for the 2nd and final time on September 10, 2006.

59. The Fedha Property was purchased in the year 1994. The Transfer of Lease to the Defendant is dated July 19, 1994 (Annexture POK ‘2’) whilst the Transfer was registered in the lands office on August 16, 1994. Title in the Fedha Property was issued to the Defendant on August 16, 1994 as evidenced by Annexture POK 3(a). Therefore, it is clear that this property was acquired in the year 1994.

60. The Plaintiff and the Defendant first divorced in the year 1990 and re-married in September 2001. Therefore, in the year 1994 when the Fedha Property was acquired the couple were not in a legal marriage. Since the Fedha Property was not acquired during the existence of a valid legal marriage between the parties, the same cannot be declared to matrimonial property.

61. The Plaintiff in her evidence has alleged that the first divorce between herself and the Defendant was not a genuine divorce but was infact an elaborate scheme hatched by the two in agreement to marry American citizens in order to acquire legal status (Green Card) in the USA. If this is what the parties agreed to do then this is would amount to fraudulent scheme which this court will not uphold. The Plaintiffs claim that the couples first divorce was mutually agreed upon to enable each to contract ‘fake’ unions with American citizens in order to obtain Green Cards would if true amount to a fraudulent and illegal scheme which this court cannot and will not sanction.

62. The Defendant on his part denies that their first divorce was a mutually agreed scheme to enable the couple acquire legal status in the USA. The Defendant states that after their first divorce in March 1990 the Plaintiff got married to a Mr H whom she cohabited with and whose name she adopted. He points out that the Plaintiff still calls herself HH to date. The Defendant states that he on his part got married to one CW.

63. The Plaintiff claims that her marriage to Mr H and the Defendants marriage to CW were fake marriages entered into solely for purpose of each obtaining a Green Card to enable them continue to reside in the USA. She claims that during the four (4) year period when the couple were ‘divorced’ they continued to cohabit and even bore a son in 1996 during the period when they were divorced.

64. The Defendant on his part categorically denies that their first divorce was a scheme agreed upon between the parties. He insists that the parties disagreed and that the Plaintiff filed for divorce citing abandonment. The Defendant insists that he met CW at his place of work and entered into a genuine marriage with her. The Respondent denies that he continued to cohabit with the Plaintiff after their divorce in 1990. In his evidence, the Defendant states that after the divorce he moved out of the home which the couple shared to a different residence and that he only resumed cohabitation with the Plaintiff after they re-married in the year 2001.

65. The Plaintiff’s attempt to claim that the fact that the couple bore a son in 1996 during the period they were divorced as proof that they continued to cohabit is not credible. The Defendant on his part does not deny having sired a child with the Plaintiff. If the parties continued to engage in marital relations whilst each was legally married to another partner then this amounts to adultery. The fact that a child was conceived does not prove that their divorce was not genuine/legal.

66. The fact of the matter is that the period of coverture between the couple ended on March 9, 1990 when they first divorced. The couple were not in a legally valid marriage from March 1990 until September 4, 2001 when they re-married each other. Therefore in the year 1994 when the Fedha House was acquired the parties were not in a legal marriage. The Fedha Property was infact acquired after the judicial dissolution of the couples first marriage but before they entered into a second union in September 2001.

67. Section 5 of the Matrimonial Property Act 2013 provides as follows:-'Subject 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 estate.'

68. The Fedha property was acquired before the couple entered into their second marital union in 2001, and as such the property cannot be deemed to be matrimonial property.

69. In the case of PSN v BSO & 3 others [2019] eKLR the Court of Appeal held inter alia as follows:'In the absence of prima facie evidence of a marriage between the appellant and B, the appellant failed to demonstrated her alleged spousal interest which she sought to have protected.'

70. Likewise in this case the evidence clearly shows that in the year 1994 when the Fedha Property was acquired the Plaintiff and Ms CW who could validly claim a spousal interest in the Fedha Property.Defendant were not married to each other. Infact at the material time each was legally married to a different partner. The Plaintiff cannot claim a spousal interest in a property which was acquired when there was no marriage subsisting between herself and the Defendant. Indeed, I dare say it is

71. Based on the foregoing I find that the Fedha Property Nairobi/Block 97/1617 does not constitute matrimonial property.(ii)Financial contribution

72. Having found that the Fedha Property does not constitute matrimonial property any claim that the Plaintiff may have to the said property can only be ventilated in a civil Suit and not through this matrimonial cause filed in the Family Division of the High Court. However for purposes of completeness, I will assess the question of whether the Plaintiff can claim an interest in the Fedha Property by virtue of financial contribution towards its purchase.

73. The Plaintiffs position is that the Fedha Property was acquired and developed using funds jointly contributed by herself and the Defendant. On his part, the Defendant asserts that he acquired the said property singlehandedly using his own personal funds.

74. At the time when this property was acquired both the Plaintiff and the Defendant were resident in the USA. The Defendant however told the court that he has now moved back to Kenya where he is engaged in elective politics. The Plaintiff on the other hand continues to reside in the USA.

75. The Defendant averred that he purchased the Fedha Property from [particulars withheld] for a consideration of Kshs 425,000. The Defendant states that he sent the money to his cousin one AHOO (DW2) who had informed him about the availability of the properties for purchase.

76. The said AHOO testified as DW2. He confirmed that the Defendant sent to him an amount of Kshs 425,000 in installments for purposes of purchasing the Fedha Property. DW2 insists that he only received funds from the Defendant. He states that he was not in communication with the Plaintiff during the period of purchase of the property.

77. On her part the Plaintiff avers that she made financial contribution towards the purchase of the Fedha Property. That she sent various amounts of money to Nairobi, Kenya through various emissaries to be utilized towards payment of the purchase price. However despite her claim to have participated in the purchase of this Fedha Property, the Plaintiff admits under cross-examination that she did not know who the seller of the property was nor did she know the purchase price. This in my view is not credible. The Plaintiff struck this court as an educated and well travelled woman. It is very unlikely that she would contribute funds towards the purchase of a property whose cost she did not know and whose seller was also unknown to her. These are basic enquiries which any serious purchaser ought to have made.

78. PW2 MO who is a sister to the Plaintiff testified that during the period 1990 – 1995 that the Plaintiff and Defendant sent money through her for onward transmission to Mr HO (DW2). According to PW2 the monies sent through her were to be utilized towards the purchase and development of the Fedha Property. PW2 states that she handed over the money sent to DW2.

79. However PW2 has no record of what amounts were sent to her. PW2 was not able to specify how much of the money she received came from the Plaintiff and how much came from the Defendant. Under cross-examination PW2 says, 'I cannot recall the year or the amount I received into my account.' If the money was truly sent through the bank account of PW2 then there are records which ought to have been easily obtainable from her bank. Further there is no proof that any money sent to PW2 was actually utilized towards payment of the purchase price for the Fedha Property.

80. Likewise PW3 HO a cousin to the Plaintiff told the court that during the 1990’s there were restrictions on movement of money from foreign countries to Kenya. That as a result the Plaintiff and the Defendant often gave him cash whenever he was travelling to Kenya to deliver to PW2.

81. However like PW2 this witness was unable to give specifics of how much money he handed over to PW2. He is not able to state what portion of the funds originated from the Plaintiff personally and more importantly, PW3 is not able to confirm that the money he handed over to PW2 was actually utilized to purchase the Fedha Property. Under cross-examination PW3 says -'H gave me money to take to M(PW2). I did not ask the purpose of the money.'

82. Indeed the Plaintiff herself is unable to state with specifity exactly how much she contributed towards the purchase of the Fedha Property. Under cross-examination the Plaintiff admits-'I did not keep track of my contribution because I trusted the Respondent. I did not ask the Respondent to sign any document when I gave him money.'

83. It is a fact that Kenyans in the diaspora often do remit funds back to relatives in the country for various purposes eg, upkeep of family in the Country as well as for development projects. If the Plaintiff did remit funds through PW2 and PW3 (which has not been proved), it has not been demonstrated that the funds so remitted were used to pay for the purchase price and/or the development for the Fedha Property.

84. The Plaintiff in her Further Affidavit dated October 13, 2020 avers that in April 2005 she took a loan of USD 20,000 out of which she lent the Defendant USD 15,000 on August 14, 2005 for use towards the development of the Fedha Property. The Plaintiff annexed to her Further Affidavit a copy of a loan Agreement dated April 8, 2005, entered into between herself and the Defendant (Annexture HAK ‘2’).

85. Firstly, this loan agreement was entered into on April 8, 2005 almost eleven (11) years after the Fedha Property was acquired. The loan cannot be said to amount to contribution for a property which had bene purchased eleven (11) years earlier. Secondly, according to the Plaintiff the USD15,000 was advanced to the Defendant as a loan. In that case, the amount was refundable to the Plaintiff by the Defendant. Indeed the financial Agreement indicates that the amount was to be repaid in 180 months or fifteen (15) years. Therefore, this money was a loan advanced to the Defendant and was not a ‘contribution’ made by the Plaintiff towards the acquisition and/or development of the Fedha Property. Giving a refundable loan to the Defendant cannot be deemed to amount to a financial contribution by the Plaintiff.

86. Secondly, the Financial Agreement dated August 4, 2005 indicated that the USD20,000 was an equity loan on the couples home in New Jersey USA to buy out the Defendants interest in a property the couple owned in the USA. It was not specifically an advance towards the Fedha Property.

87. All in all I find that the Plaintiff has failed to prove on a balance of probability that she made financial contribution towards the purchase and/or development of the Fedha Property. Therefore, her claim in this regard fails.(iii)Division of Property

88. Having found that the Fedha Property does not constitute matrimonial property and having further found that the Plaintiff has not proved financial contribution towards the acquisition of said property. I find that the Plaintiff is not entitled to any share in LR Number Nairobi Block/XXXX

89. Regarding the Migori Property the Defendant has conceded that the Plaintiffs entitled to a fifty percent (50%) share in the same.

Conclusion 90. Finally based on the foregoing this court makes the following orders:-(i)Prayer (1) seeking a declaration that the Property known as LR No Nairobi/Block XXXX Fedha Estate constitutes matrimonial property is dismissed.(ii)The Plaintiffs prayer that the property known as LR No Nairobi/Block XXXX Fedha Estate be shared equally between the parties is declined.(iii)The property known as Title Number Suna East Wasweti XXXX is hereby declared to be matrimonial property.(iv)The Plaintiff is entitled to a fifty per cent (50%) share in the property known as Title Number Suna East/Wasweta XXXX(v)Each party shall meet their own costs for this suit.

DATED IN NAIROBI THIS 2ND DAY OF DECEMBER, 2022. …………………………………MAUREEN A. ODEROJUDGE