MCA v FOO [2022] KEHC 581 (KLR)

MCA v FOO (Matrimonial Cause E074 of 2021) [2022] KEHC 581 (KLR) (Family) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 581 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Matrimonial Cause E074 of 2021

AO Muchelule, J

June 16, 2022

IN THE MATER OF SECTIONS 7, 12, AND 17 OF THE MATRIMONIAL PROPERTY ACT, NO. 49 OF 2013

Between

MCA

Applicant

and

FOO

Respondent

Judgment

1. The originating summons dated 14th October 2021 was filed by the applicant MCA against the respondent FOO seeking the following orders:-“1)That this Honourable Court be pleased to declare that the property known as LR No xxxxx/xxxxx in Machakos County to be matrimonial property;2)That this Honourable Court be pleased to declare that the applicant made contribution, financial, or otherwise to the acquisition of the property known as LR No xxxxx/xxxxx Machakos County and thus she is entitled to a share of the said property; and3)That this Honourable Court be pleased to issue an order that the property known as LR No xxxxx/xxxxx Machakos County be registered in the joint names of the applicant and the respondent.”

2. The summons was based on the grounds and supporting affidavit sworn by the applicant. Her case was that the two got married on August 20, 2004 at the Civil Registry at Nairobi, and that the marriage was blessed with two children. In the course of the marriage, the couple developed a home on LR No xxxxx/xxxxx in Machakos County which became the matrimonial home. She stated that she contributed to the acquisition of the house by taking care of the children and by meeting the daily needs of the family through her salary earnings and commissions from doing odd jobs. In her supplementary affidavit, she stated that she was in salaried employment for many years, from 2003 to 2021 (except for a period between 2004 and 2005 and between 2010 and 2014); that she used the money she got to purchase groceries, linen and clothing for the children and to pay salary to all the house girls they had employed. She did this while taking care of the children. This allowed the respondent to raise money to acquire the property that became their home. Further, that the respondent sold two matrimonial residential plots at Katani Road new KAG Church within Railway Housing Cooperative to help raise the money that he used to acquire the property.

3. The respondent opposed the summons, and denied that the house was matrimonial property. He stated that he had solely bought the land from one Alphonse Mutua Mwathani using his own resources (salary and savings) from Cooperative Bank of Kenya Ltd and through unsecured loans obtained from Safaricom and NCBA Bank Kenya PLC, and also from proceeds got from selling shares held within Safaricom Investments Cooperative. He annexed the agreement of sale and details of transactions leading to him getting the money he used to buy the property. The property was worth Kshs.1,700,000/= , and he proceeded to develop it. It is evident that the property was then registered in his name.

4. The respondent swore that he paid all the bills, and bought all household goods and supplies. He gave to the applicant all the money that was required for all these goods and supplies. He described the applicant as woman who was prone to heavy drinking and had unscrupulous lifestyle, and was non-supportive. He denied that she spent any cent towards the purchase of the property or its development. He stated that the applicant had never availed any money or resources for the benefit of the family, and neither had she offered any care or support to him as he went about to buy and develop the property.

5. There is no dispute that the couple has an ongoing divorce dispute in Divorce Cause No. xxx of 2021 at the Chief Magistrate’s Court at Milimani.

6. It is evident that the property was bought in 2015 and then developed. This was during the period that the applicant and the respondent were married. Section 6(1) of the Matrimonial Property Act defines matrimonial property to mean any movable or immovable property that was acquired during the subsistence of the marriage. The respondent cannot therefore claim that the property in question in which the family settled as their home was not matrimonial property.

7. However, under section 7 of the Act, ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved. The marriage between the appellant and the respondent has not been dissolved. All that the court can do is to declare the interest of either spouse in the property. That interest will be based on each spouse’s contribution. The declaration is under section 17(1) of the Act which states as follows:-“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.”

8. The direct and financial contribution towards the acquisition and development of the property came from the respondent. The applicant stated that there were two plots that the family had which the respondent sold to get money which he used in the purchase of the matrimonial home. She gave no particulars of the plots, to whom they were sold and for how much. It was up to her to show on balance that the plots existed, they belonged to the family and that they were sold and the proceeds applied towards the acquisition of the matrimonial home. She did not discharge the burden.

9. The applicant stated in general terms about the salary she earned or the commissions she received and how they were applied to take care of the family. She did not say how much salary or commission she earned, or in respect of which job or task. The respondent’s evidence was that she gave no money towards the family, that he paid all the bills. She stated that she took care of the home and the children. The respondent described her as uncaring and unsupportive. However, I consider that under section 2 of the Act, contribution is defined to mean domestic work and management of the matrimonial home; child care; companionship; management of the family business or property; and farm work. The family did not run any business and had no farm work. The couple lived together for about 17 years and had two children. The assessment of contribution of spouses in acquisition of matrimonial property is not a scientific exercise; each case depends on its peculiar facts. I also know that under section 14(a) of the Act, now that the property was registered in the name of the respondent, there was rebuttable presumption that he held it in trust for himself and for the applicant. Given the facts of the case, and doing the best that I can, I determine and declare that the applicant’s contribution towards the acquisition and development of LR No xxxxx/xxxxx Machakos County was 30% and the respondent’s contribution was 70%. I make no further orders on the property as the parties are still married.

10. I ask each party to bear own costs.

DATED AND DELIVERED AT NAIROBI THIS 16 TH DAY OF JUNE, 2022. A.O. MUCHELULEJUDGE