LN v JEN & 2 others [2022] KEHC 14693 (KLR)

LN v JEN & 2 others (Civil Case 77 of 2017) [2022] KEHC 14693 (KLR) (Family) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14693 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Case 77 of 2017

AO Muchelule, J

November 3, 2022

Between

LN

Applicant

and

JEN

1st Respondent

CE

2nd Respondent

LE

3rd Respondent

Ruling

1. The applicant L.N. and the 1st respondent J.E.N. got married in 1974 and have two adult children. The 1st respondent sought to divorce the applicant in Nairobi CM Divorce Petition No. 540 of 2016. The matter was finalised and marriage dissolved on 6th July 2018.

2. In the originating summons dated December 13, 2017, the applicant sought the declaration that LR No. 1160/422 Kuro/Kongoni Road, Karen in Nairobi registered in the name of the 1st respondent was bought and developed by their efforts during their marriage. She sought a declaration that the 1st respondent held it in trust for her beneficial interest. The 1st respondent opposed the suit. The applicant’s complaint was that the 1st respondent was selling part of the property to her detriment. She resides in the United States of America. The response was that he was selling half an acre of the property to raise funds to settle outstanding rates and penalties owed to the City Council of Nairobi.

3. The suit was compromised through a consent dated February 11, 2019 and recorded on February 14, 2019 in the following terms:-“1)The caveat placed on the suit property L.R No. 1160/422 by the plaintiff be withdrawn.2)The suit property namely L.R No. 1160/422 be subdivided into the following portions: -i.L.R No. 1160/1219 (original no. 1160/422/1) andii.L.R No. 1160/1220 (original no. 1160/422/2

3. L.R No. 1160/1219 (Original No. 1160/422/1) be further subdivided into two (2) portions and the same be shared as follows: -a.The portion marked ‘A’ on Deed plan no. 411116 dated 23rd January 2017 measuring approximately 0. 58 acres be transferred to the 1st defendant.b.The portion marked ‘B’ on deed plan no. 411116 dated 23rd January 2017 measuring approximately 1. 2 acres be transferred to the plaintiff.

3. The portion known as L.R No. 1160/1220 (original no. 1160/422/2/) measuring approximately 0. 2023 hectares be transferred to the 2nd and 3rd defendants.

4. The plaintiff to sign all relevant documents relating to the withdrawal of the caveat and subdivision failing which the registrar of the high court shall execute all the relevant document to give effect to this consent order including spousal consent to the transfer to the 2nd and 3rd defendants.

5. The plaintiff and 1st defendant to pay equally the costs of the subdivision herein.

6. The 1st defendant to ensure that upon the subdivision having been completed the plaintiff’s/applicant’s portion shall be handed over to her with vacant possession.

7. The 1st defendant shall have occupation of the property until the subdivision and title in favour of the plaintiff/applicant is issued.”

4. There is the 1st respondent’s application dated 11th January 2021 in which he sought that the applicant be cited for being in contempt of the terms of the consent order and be committed to civil jail; that she be ordered to deposit Kshs.4,894,000/= that she had been collecting irregularly from the two tenants on LR No. 1160 of 1219; that he be allowed to be the one collecting any future rents on the property; and so on. Then there is the applicant’s application dated February 25, 2022 seeking to cite the 1st respondent for being in contempt of the consent orders, and that he be directed to execute the transfer documents enabling the transfer of LR No. 1160/1344 (Original No. 1160/1219/2) in her favour, failing which the Deputy Registrar be directed to sign the documents to enable the transfer.

5. The bottom line is that the consent that was recorded on February 14, 2019 has not been fully complied with, and each side has some complaint or another against the other.

6. When the parties compromised this dispute, their intention was to amicably bring the matter to a close. In the wider interests of justice, I direct Deputy Registrar of this court to supervise the implementation of the consent order and to sign any documents to enable the realisation of the orders, if any party is unwilling to sign. She will call any meeting in bid to assure compliance. Ultimately, she will file a report within 90 days regarding the extent of compliance and the reluctance by any party to comply.

7. This matter shall be mentioned on March 16, 2023 for further orders.

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 3RD DAY OF NOVEMBER 2022. A.O. MUCHELULEJUDGE