M O C v A C M [2017] KEHC 954 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

MILIMANI

DIVORCE CAUSE NO. 22 OF 2012

M O C……….…PETITIONER/RESPONDENT

VERSUS

A C M…………RESPONDENT/APPLICANT

RULING

PLEADINGS

By way of a Notice of Motion Application and an Affidavit in Support dated 28th February 2017, the Respondent who was acting in person sought orders inter alia that; the Court be pleased to set aside its judgment entered on 14th November 2014, that it be pleased to stay the orders in the said judgment pending the hearing and determination of his Application, that upon such stay, the Court be pleased to order that the amount collected as rent from Buruburu House No./[particulars withheld] and Kayole House No. -[particulars withheld]be deposited in a joint account and that the costs of the Application be borne by the Applicant.

The grounds adduced in support of the Application were that the Respondent hired one Stephen Mureithi Gitonga of the firm of Gitonga Mureithi& Co. Advocates to act for him in the Divorce matter and the said Advocate was never served with Court documents, that he discovered that judgment had been entered in default of his appearance, that the mistake of the Petitioner’s Advocate should not be visited on him, that it is in the interest of justice that he be given a fair trial and that he stands to suffer irreparable loss if the Application is not allowed. This was reiterated in his Affidavit in Support of his Application wherein he further added that he was married to the Petitioner and the said marriage was dissolved by the Court through an ex-parte judgment entered by it in default of his appearance. He submitted that he did not intentionally fail to enter an appearance and but rather he was not aware that his case was being heard due to the fact that neither him nor his Advocate was served. He further deposed that he has suffered financially, emotionally and psychologically due to the orders granted particularly those on maintenance. He also submitted that the Petitioner has not been sharing the rent proceeds as ordered by the Court and that has occasioned him financial difficulties and prayed that he be granted a fair hearing on the matter.

The Petitioner/Respondent replied to the Application by filing her Affidavit and further Affidavit dated 13th March 2017 and 24th April respectively. She deposed that the Respondent/Applicant was duly served with the Notice to Enter Appearance and the Petition whereupon he appointed an Advocate to represent him and thereafter change his Advocate and appointed the firm of Gitinga Mureithi & Co. Advocates who were duly served with all the documents pertaining to the Divorce Cause. She further submitted that her Advocates invited the Respondent/Applicant’s Advocates vide a letter dated 5th August 2014; a copy of which has been attached and marked MOC1 to send a representative for purposes of fixing a hearing date but no one was present for the fixing a hearing date. She further stated that the Respondent/Applicant’s Advocates were also served with a hearing notice; a copy of which has been attached and marked MOC2but none of the parties attended Court for the scheduled hearing. She further submitted that; that being the case, the court was satisfied that the Respondent/Applicant had been duly served and proceeded with the hearing ex-parte and entered its judgment. Accordingly, she submitted that the Respondent/Applicant’s Application lacks merit, is an abuse of the process of the Court and serves no purpose primarily because the Respondent is not seeking to defend the Divorce Cause but rather submit his concerns on issues regarding rent and that in fact; he collects rent from their matrimonial property Plot No. Nairobi/Block129/[particulars withheld] Komarock Phase 2 that is income generating as evidenced a copy of the letter attached and marked MOC3.

In her Further Affidavit which focused on the issue of rent and matrimonial property, she denied collecting rent from their matrimonial home in Buruburu L.R No. /[particulars withheld] and having collected a sum of Ksh. 2,880,000 as rent from House No. -[particulars withheld] in Kayole. She submitted that Buruburu House No. /[particulars withheld] was their matrimonial home in which she was abandoned by the Respondent/Applicant when he retired and left for their Rural Home in Rarieda, Ndhiwa. She further explained that she continued staying in that home until sometime in February 2012 after she had filed the Divorce Petition when the Respondent/Applicant threw her out of the house and ferried all the household goods to their rural home after which the house remained vacant until the Court granted her access to the house  in its judgment. She slowly repaired the house using her own money and started living in it in March 2017. She submitted that the Buruburu house does not generate any income and that when she was thrown out of it, the Respondent/Applicant never paid rent and rates which had accumulated to Ksh. 6,494 which she had to pay.

In regard to the Kayole property; House No. D6-[particulars withheld], which comprises of single rooms, she submitted that the House was allocated to her by the Nairobi City Council then and she pays ground rent to date and that currently, the Nairobi County Government demands a sum of Ksh. 60,000 from her being survey and other related fees pertaining to the property. She further submitted that she put up the rooms in the House using a loan facility from Co-operative Bank and other lenders and that she pays the amount using the rent she collects from the rooms which amounts to Ksh. 12,000 per month. She denied having collected property from this property for 6 years because she was still constructing.

She brought it to the attention of the Court that the Respondent/Applicant has failed to disclose the fact that he lives in their matrimonial home in Rarieda and that he solely collects rent of about Ksh. 25,000 per month from the house in Komarock which they jointly own. She submitted that the Respondent/Applicant was not in any way financially challenged as he has businesses which are income generating. She prayed that the Application be dismissed.

HEARING

On 16th March 2017, the Respondent A C M submitted in Court that he found out from Court that the matter was heard exparte. He was not involved and was served with the hearing notice. He said he is old and very ill and wants the exparte judgment on 14th November 2014 set aside and the matter heard afresh. his advocate refused or neglected to inform him of the case. the said judgment deprived him of his properties;

a) Buruburu House no [particulars withheld]

b) Property in Kayole

c) Home in Rarieda

His former wife, M O C has deprived him of rent receivables which amounts to almost Ksh 2million for 21/2 years. He is denied access to the house in Buruburu estate. Pursuant to the Court order that both Applicant and Respondent were to share 50% each the rent receivables from properties; the Respondent has refused to pay him part of the rent. The Respondent has collected ret from the Buruburu house at Ksh 35,000/= for 3years now and not remitted his half share to him. The Respondent collects rent from 16 rooms built at Kayole at Ksh 2,500/= each a month and not remitted him his share. He sought that the rent be paid in Court or in a joint account. He will suffer irreparable loss and damage if the judgment is not set aside.

The Respondent challenged the judgment on various grounds; mainly that the witnesses to corroborate the Petitioner's evidence were not called to testify, their children and relatives. The reports made to the Police Stations; in Nairobi and Nyanza where the alleged assaults occurred.

Counsel for the Applicant objected to the Application; the same was served to the Applicant through his advocates and later on the hearing notice as confirmed by the Affidavit of Service filed on 16th October 2014.

The petition for divorce was filed in 2012 and the Petitioner sought dissolution of the marriage. the Respondent by filing Reply to Petition on 8th March 2012, the Respondent sought dissolution of marriage. Therefore the present application is an exercise in futility as the parties have not reconciled to date. The Court's judicial discretion is not to be exercised to obstruct justice.

The Respondent repaired the matrimonial home House Number 73/[particulars withheld]and paid the rates and moved in and resides there todate. She did not rent it out. After she filed for divorce she was evicted and the Respondent took all her belongings to their rural home. She entered the said home after this Court's orders from the instant judgment.

the Respondent's application to set aside the judgment is a calculated move, now that the  Petitioner paid for repairs and renovation to the Buru buru house and the land rates and put up on loan the added rooms to the Kayole property now the Applicant wants to benefit from the same.

DETERMINATION

From the foregoing, the crux of this matter stems from the Divorce Petition No. 22 of 2012 dated 8th February 2012 filed by the Petitioner/Respondent wherein she sought among other prayers that the marriage celebrated between her and the Respondent/Applicant be dissolved on the ground of cruelty, desertion and adultery. The Respondent/Applicant replied to the Petition by way of his Answer to Petition dated 7th March 2012. He denied the allegations of cruelty, adultery and other allegation in the Petition but also sought among other prayers that the marriage be dissolved.

The matter proceeded for hearing ex-parte due to the non-attendance of the Respondent/Applicant after being served with a hearing notice and not advancing any reasons for his none-attendance for the Court to consider. The Petitioner gave her viva voce evidence on the Respondent/Applicant’s conduct which depicted the grounds of cruelty, adultery, desertion and irretrievable breakdown of the marriage. Being satisfied that the Petitioner/Respondent had proved her case on a balance of probability and that the marriage was irretrievably broken down, the Court gave the following orders:

I. The dissolution of the marriage between the Petitioner and the Respondent solemnized on 13th April 1984 be dissolved.

II. A decree nisi to issue forthwith and decree absolute to issue within 30 days

III. No orders as to legal custody care and control and maintenance of the children by either of the parties due to the fact that they are adults and 2 of them have their own families.

IV. With regards to the Petitioner’s maintenance:

a. a 50%/50% share of all the 3 properties namely Buruburu House No. [particulars withheld], Property in Kayole and Rural Home in Rarieda between the Petitioner and the Respondent in the meantime;

b. 50%/50% rents payment for the said properties to both Petitioner and Respondent;

c. Direct access and Possession of Buruburu House No. [particulars withheld] and the rural house in Rarieda.

In view of the above holding, the Applicant filed the present Application praying that the orders be set-aside because he was not heard due to the reasons advanced in the Application.

Order 10, rule 11 of the Civil Procedure Rules, 2010 on consequence of non-appearance, default of defence and failure to serve provides:

“Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”

The existence of this provision allows a defendant whom judgment in default has been entered to apply for it to be varied or set aside under the Civil Procedure Rules, 2010. Where a judgment has been entered wrongly, it must be set-aside as of right. However, in other cases, that is where the judgment is regular; the Court has discretion to set it aside. This however requires the defendant to prove on a balance of probability that he has an arguable defense with a probability of success or where having regard to the circumstances; it appears to the Court that there are justifiable reasons why the judgment should in fact be set aside. This discretion given to the Court pursuant to the aforehighted provision is intended so to be exercised to avoid injustice or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice as was held inShah v Mbogo[1967] EA 116.

In Yamko Yadpaz Industries Limited v Kalka Flowers Limited [2013] eKLR,the Court of Appeal was guided by the case of Smith v Middleton[1972]in holding that,

“..such discretionary power must be exercised judicially and not in a selective and discriminatory manner, not arbitrarily and   idiosyncratically.”

Where the Court has reached its final decision having considered all facts and circumstances, it will set it aside whereupon the person seeking such orders satisfies the Court that his/her non-attendance and participation in the proceedings was not deliberate and that the he/she not only has a good defense but also one that has a probability of success.

Does the Applicant have an arguable defense with a probability of success?

DISSOLUTION ORDER

From the facts of this particular case, the Respondent/Applicant’s prayer that the judgement delivered by this Court be set-aside is primarily pegged on service. He claims that the Petitioner/Respondent did not serve him and his Advocate who was then on record despite there being a Affidavit of Service on record dated 15th Octobete 2014. He also submitted that his Advocate did not inform him about the progress of the case so that he can defend his course and thus the mistakes of his Advocate should not be visited upon him.  In as much as it might indeed be true that he was not updated on the progress of the case, the question before this Court is; if the judgment is then set aside, will he have a good defense with a probability of success?

This Court is not convince that the Defendant has a good defense with a probability of success. From his Application and further Affidavits filed on diverse dates, he does not seek to have the judgment set aside so that he can salvage his marriage. Although, he argued that the Petitioner/Respondent herein did not prove her claims of cruelty, dessertion and adultery as deposed in her Divorce Petition, he does not deny the fact that their marriage was irretrievably broken down. Further, in his Reply Petition of 8th March 2012, although he denied the allegations of cruelty, dessertion and adultery, he admitted that the marriage had broken down and also prayed that his marriage to the Petitioner/Respondent herein be dissolved. Accordingly, in this regard, I find that his Application lacks merit on this ground as setting that order aside will only be an academic exercise because as it stands, the parties have already moved on with their individual lives  and there have been no attempts to salvage the union since 2014.

MAINTENANCE ORDERS

This the Respondent/Applicant's bone of contention is the issue of maintenance. The Court granted a 50%/50% share of rent from all the 3 properties namely Buruburu House No. [particulars withheld], Property in Kayole and Rural Home in Rarieda between the Petitioner and the Respondent, in the meantime (pending appropriate application filed to determine division of matrimonial property) This Court considered that the Petitioner was destitute and she was not in employment, the Petitioner was formal employment until 2007 and helped maintain the home and the children, the Petitioner developed the property in Kayole which she is prevented from collecting rent by the Respondent and receives no share of the proceeds from it, the Respondent forcefully evicted her from the matrimonial home in 2012 and that the Respondent took all the belongings of the home and left the Petitioner homeless.

On the other hand, the Respondent had relocated to the rural home. Therefore this Court granted the Petitioner/ Applicant access to the matrimonial home as the Respondent resides in their rural home in Rarieda.

This Order was given after having considered these circumstances and that the Court has jurisdiction to provide maintenance as follows;

Section 77 of the Marriage Act, 2014on grounds for order of maintenance provides:

(1) The court may order a person to pay maintenance to a spouse or a former spouse— (a)  ...

(b) ...

(c) ...

(d) when granting or after granting a decree of separation or divorce; or

(e)  ...

Section 80 of the Marriage Act , 2014on Revocation and variation of an order for maintenance provides:

(1)  The court may revoke or vary a subsisting order for maintenance of any kind, whether secured or unsecured, if it is satisfied that the order was based or obtained as the result of any misrepresentation or mistake of fact or that there has been a material change of circumstances since the order was made.

In the instant case, the Court heard and determined the Divorce Cause and since the issue of matrimonial property was raised as the Petitioner was homeless and financially handicapped, this Court  granted orders to allow Petitioner to reside in Buruburu House No. [particulars withheld] as the Respondent lives in Rarieda. The said Orders were granted in the meantime until the parties sought the Court to divide their matrimonial property and move on with their separate lives. In this regard, this Court is of the opinion that the parties should file a matrimonial property suit so as to determine each person’s share in the suit properties. At this stage, this Court having found out that each spouse resides in one property then the Judgment of 14th November 2014 is amened for the parties to share rent from Property in Kayole equally until division of matrimonial properties is finalized. Any aggrieved party may apply and there are no Orders as to Costs.

It is so ordered.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 3RD DAY OF NOVEMBER, 2017.

M.W.MUIGAI

JUDGE