M W M v W E L [2017] KEHC 5550 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NANYUKI

MATRIMONIAL CAUSE NO.  1 OF 2015

M W M …..…………………………………………………………… APPLICANT

VERSUS

W E L ……………………………………………………………… RESPONDENT

JUDGMENT

1. By an originating summons dated 16th October, 2015 M W M seeks the following prayers.

THAT it be presumed that there is irrebutable  presumption of marriage between the Applicant  and the Respondent

THAT  it be declared that  the movable  property acquired by the joint  funds and  efforts of the Applicant and the  Respondent  during  the subsistence of marriage and registered in the sole name of the Respondent  and in the efforts of the Applicant  and the possession more  particularly shown in the annexed affidavit of the Applicant  is held in trust for the Applicant  and the same  be subdivided and/or sold  and the proceeds of sale or subdivision be shared equally or according  to each party’s contribution towards its acquisition.

THAT the Honourable Court be pleased to grant such further orders or reliefs as it may deem just to grant in the circumstances and in the interest of justice.

Those prayers were based on the grounds that there was a marriage between M W M (the applicant) and W E L (the respondent), that the spouses have separated; that the applicant contributed both directly and indirectly towards the acquisition of the Matrimonial property, and that the title No. Nanyuki/Naibor Block [particulars withheld] Kariunga (the property) is solely registered in the name of the respondent.

2. The respondent failed to file any papers in response to the suit and also failed to attend the hearing of this matter. The hearing proceeded through affidavit and written submissions.

3. According to the affidavit evidence the applicant deponed that she was married to the respondent under the Turkana Custom in the year 2004. The couple separated in the year 2014. In the year 2006 the couple purchased the property for Kshs. 45,000/. They each raised Ksh. 10,000 towards the purchase price and the respondent’s father advanced them Ksh. 25,000/. The applicant deponed that she raised her contribution from her personal saving which she had accumulated from her previous employment and income from a shop she was running. That after the couple purchased the property they established their matrimonial home by constructing their home thereon. The matrimonial house was built from the applicant’s savings and income from the shop she was running and also from the salary of the respondent. The applicant did domestic chores, cooked for the workers and fetched water for construction of that house while the respondent went to work. The couple also built a wooden house for the respondent’s father who later vacated.

4. The couple were blessed with two children one born on 30th June 2005 and the other on 25th June 2012. The applicant stated that she paid school fees of the two children after the respondent engaged in politics and was finally elected as Councilor between the years 2008 and 2013.

5. The applicant shifted her shop to the matrimonial property and from the proceeds of that shop they built two other shops which earned them rental income of Ksh. 3,000/= per month.

6. The applicant deponed that the respondent in the year 2014 engaged in domestic violence which led to the applicant deserting the matrimonial home.

7. It is on the basis of the above evidence that the applicant seeks the prayers in her originating summons.

ANALYSIS AND DETERMINATION

8. The applicant’s evidence that she was married to the respondent according to Turkana custom was uncontroverted. It follows that on a balance of probability the court accepts that evidence. Even if the applicant had not pleaded that she was married under the Turkana custom she would have succeed on her prayer for presumption of marriage of the account of their long co-habitation. In R N N v P S [2006] eKLR the court discussed how presumption of marriage would arise as follows:

HORTENSIA WANJIKU YAWE VS PUBLIC TRUSTEE COURT OF APPEAL NUMBER 13 OF 1976 where the court held:

“By  general repute and in fact the parties had cohabited  as man and wife in a matrimonial home for  9 years before the  deceased died…….. and during that time the  Appellant bore  the deceased 4 children …. long cohabitation as man and wife  gives rise to the presumption of marriage in favour  of the Appellant  only cogent evidence to the contrary  can rebut such a resumption……”

The same position is amplified in the case of:

CHRISTOPHER NDERI GATHAMBO VS SAMUEL MUTHUI MUNENE NAIROBI HIGH COURT CIVIL CASE 1372 OF 2001

The court observed:

“The claim is [presumption of marriage] on the basis of cohabitation and friendship, agreement and love. They lived together in Nairobi   and had a daughter together…… anyone of those actions cumulatively prove the parties intended to marry and held themselves as married hence presumption.”

9. On the first prayer the applicant does succeed. This court does hereby presume the applicant and the respondent as married under the Turkana custom and by virtue of their long co-habitation, ten years, and coupled with the birth of two children.

10. Since the court does now presume the parties as husband and wife Section 14 of the Matrimonial Property Act (the Act)presumes that property acquired during marriage but registered in the name of one spouse is held in trust for the other spouse. The full text of that Section is 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.

11. Section 2 of the Act  defines contribution towards acquisition of matrimonial property as:

“Contribution” means monetary and non-monetary contribution and includes-

a. domestic work and management the matrimonial home;

b. child care

c. companionship;

d. management of family business or property; and

e. farm work

12. The applicant from her uncontroverted evidence demonstrated that she not only made non-monetary contribution to the purchase of the matrimonial Property but also made direct monetary contributions.

13. Section 7 of the Act provides that at divorce or dissolution of the marriage the matrimonial property shall be divided amongst the spouse according to the contribution of either spouse.

14. It follows that in respect to the second prayer of the originating summons this court does declare that the property was acquired by joint funds and contribution the parties and accordingly the respondent holds the title in trust for the applicant.

15. In the interest of justice and of fairness this court shall order that the property be subdivided into equal share between the parties. The  orders of the court are as follows:

a. This court declares that  there was a  marriage between the applicant  and the respondent;

b. This court further declares that Title No. NANYUKI/NAIBOR BLOCK [particulars withheld] (KARIUNGA) is held in trust for the applicant.

c. Title No. NANYUKI/NAIBOR BLOCK [particulars withheld] (KARIUNGA) shall be subdivided into equal shares between the applicant and the respondent.

d. The Deputy Registrar of this court is hereby authorized to sign all the necessary documents on behalf of the respondent which will be required to put into effect the order of this court.

e. The respondent shall pay the applicant’s costs of this suit.

Dated and Delivered at Nanyuki this 25th day of May, 2017

MARY KASANGO

JUDGE

Before Justice Mary Kasango

Court Assistant Njue/Mariastella

Applicant  …………………………………………

Respondent ……………………………………

Mr. Chweya for applicant …………………………

Judgment delivered in open court

MARY KASANGO

JUDGE