Ndiku v Amwayi [2024] KEHC 10774 (KLR)

Ndiku v Amwayi (Appeal E052 of 2023) [2024] KEHC 10774 (KLR) (Family) (19 September 2024) (Ruling)

Neutral citation: [2024] KEHC 10774 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Appeal E052 of 2023

H Namisi, J

September 19, 2024

Between

Josephat Mutuku Ndiku

Plaintiff

and

Gloria Habukwi Amwayi

Defendant

Ruling

1. Before the Court are two Applications herein filed by the Applicant, the Originating Summons (sic!) filed by the dated 11th December 2023 and Notice of Motion dated 24th April 2024. Parties were directed to canvass both applications together, by way of written submissions.

Originating Summons dated 11th December 2023 2. The Application seeks the following prayers, inter alia:i.That this Honourable Court be pleased to order ALL the tenants, agents, representatives of Plot No. 31/11/69 which are part of L.R. 31/11 Ruaraka Kasarani to deposit rent in a joint account, held by both parties Advocates to be opened pursuant to the order of the court;ii.That the collected rent from ALL properties, from the date of the order, be administered and shared equally in the interim, by the Applicant/Respondent to the Respondent/ Applicant upon collection, less any deductibles, until contribution and is established and ascertained in the rightful proportions;iii.That the Applicant/Respondent provides accounts and details of collection and expenses for ALL previous rental collection before the date of the order within 14 days;iv.That the Applicant/Respondent herein be barred from dealing, interfering and/or otherwise tampering with the properties, without the direct involvement of the Respondent/Applicant herein;v.That the Respondent/Applicant do continue managing and receiving rent proceeds from other two properties namely:Kibera Canon area – Kshs 12,000/- per month;Clay City – Kshs 50,000/=

3. The Application is premised on the grounds on the face of it, and supported by an Affidavit sworn by the Applicant.

4. The Applicant avers that throughout their marriage, she has been a principal contributor to both the household and property acquisition and developments thereon from her salary and loans. It is her contention that the Plaintiff/Respondent’s Application dated 16th June 2023 was filed out of malice, the sole intention being to avoid being put to task to prove his contribution to the acquisition and development of various properties and to possibly drag out these proceedings, while earning rental income from the same to the exclusion of the Applicant.

5. The Applicant further avers that as the Respondent continues to collect rental income from these properties, which he has failed to disburse or otherwise share equitably, the Applicant has to struggle, relying on her meagre salary, which is subjected to loan deductions following the loans she took to acquire and develop some properties.

6. It is the Applicant’s contention that while she worked in the USA, she would send money to the Respondent, who was based in Kenya and he would then use the same to make payments towards the various properties. The Respondent is engaged in business, which has no stable income.

7. On his part, the Respondent argues that the purchase and development of the two subject properties was financed by him solely, through personal savings and loans. It is his contention that the Applicant has had no involvement whatsoever in the rental business associated with the subject properties. She has neither contributed to the management nor had any interaction with the tenants.

8. The Respondent further averred that while the Applicant is gainfully employed, he is unemployed, awaiting the court’s decision to grant him access to their matrimonial home to enable him resume a semblance of normalcy and collect his professional certificates. The Respondent insists that he is wholly reliant on the income generated from the rental properties for survival.

9. Whereas the Applicant claims that the monthly rental income is Kshs 461,500/-, the Respondent denies the same, claiming that not all units are occupied. Other than this denial, the Respondent has not provided any information as to how much is currently being collected in rental income.

Notice of Motion dated 24th April 2024 10. The Application seeks one main prayer:i.That this Honourable Court do issue an order for the Applicant to transfer Kshs 230,750/=, being 50% of the current rental income in respect to Plot No. to the month of May and June 2024 before this matter comes in court on 11 June 2024.

11. The Application is supported by an Affidavit sworn by the Respondent herein and premised on the face of it, which are difficult to comprehend due to poor drafting. In her Affidavit, the Respondent avers as follows:5. . That the mischief in this Application by me herein is to avoid being put to task to prove his contribution, to acquisition and development of the various properties, and to possibly drag the proceedings, while earning rental income, while excluding the Applicant.6. That the applicant is not in any employment, has loans and monthly liabilities that are currently accruing and is relying or well-wishers as all her savings is depleted.7. That since January 2023 making use or benefitting off the properties and exclusively collecting rent from Plot No. 31/11/69 and 31/11/70 which are part of L.R 31/11 (Ruaraka Kasarani) to a tune of Kshs 461,500/- and exclusively utilising the same.8. That the proof for rental income is well known to me.9. That the proof for rental income was provided by the caretaker not the property who I brought.10. .....11. That the Respondent has been, to the flipside, despite being the principle contributor to the acquisition and development of the properties, has been left to earn meagre rental collections from.”

12. In response thereto, the Respondent reiterates that he purchased the two subject properties using his personal savings and loans. He avers that the loan taken by the Applicant was for her own personal use and not for the purchase or development of the subject properties, as alleged by the Applicant.

Analysis and Determination 13. I have keenly read through the two applications, the responses thereto as well as submissions filed by the respective parties.

14. While I do not wish to delve into the substantive Originating Summons dated 16 June 2023, I make reference to it for a specific reason. In the Application, the Respondent seeks prayers that several properties owned jointly by the Applicant and Respondent be declared as being matrimonial properties. These include: Plot No. 31/11/69 and Plot No. 31/11/70, both of which are constructed on L.R No. 31/11 situate in Ruaraka, Nairobi County. This seems to contradict the Respondent’s assertion in his Replying Affidavit that the two properties were purchased and developed by him, solely.

15. I note that in her Application dated 11th December 2023, the Applicant seeks to continue managing and collecting rental proceeds from two properties, namely Kibera Cannon Area (Kshs 12,000/-) per month and Clay City (Kshs 50,000/=) per month. The fact that the Applicant collects rent from the two properties has not been disputed by the Respondent.

16. One thing that is clear is that at this interlocutory stage, the court cannot determine whether the 4 properties are matrimonial properties, neither can it determine the issue of contribution thereto. Similarly, I cannot, at this juncture, determine who is entitled to what proportion of the proceeds from the various properties, which is what these applications are inviting me to do.

17. When it comes to sustenance, both parties claim that they rely on the rental income from various properties. Each party alleges that the other is able to derive sustenance from sources other than the rental income, but no proof of the same has been provided. On the one hand, the Applicant claims that she earns a meagre salary and needs some of the rental income from the subject property to be able to make ends meet. On his part, the Respondent alleges that the Appellant has well paying contractual jobs with non-governmental organisations. On the other hand, the Respondent and Applicant both admit that the Respondent is a business man. The Respondent claims to have no income other than the rental income. At this juncture, I am not able to discern which facts are true without calling for additional evidence.

18. In view of the foregoing, I make the following interim orders, pending the hearing and determination of the main suit:i.The parties jointly identify a property agent who will be responsible for collecting rental income from the four (4) properties, namely:a.Apartment No. G10-03 on 10th Floor of Block G in the Development known as Clay City erected on LR no. 57/2229, Nairobi County;b.House No. 12 on Clock C2 in Kibera Soweto East Zone A in Canaan Estate, Nairobi County;c.Plot Number 31/11/69 on LR No. 31/11 situate in Ruaraka, Nairobi County; andd.Plot Number 31/11/70 on LR No. 31/11 situate in Ruaraka, Nairobi County.ii.The said agent be appointed within 14 days from today, failure to which the Deputy Registrar shall appoint a reputable Estate Agent within 30 days from the date thereof from a list of Estate Agents approved by the parties.iii.That all rent collected from the aforesaid properties shall be deposited in an escrow account held by the respective advocates of the parties;iv.All rental income from the properties in (i) above to be shared equally, after deducting costs and expenses, including the fees for the property agent;v.That the hearing date of 26th September 2024 is maintained;vi.That costs of the applications be in the cause.

DATED AND DELIVERED AT NAIROBI THIS 19 DAY OF SEP 2024HELENE R. NAMISIJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:..N/A..............for the Plaintiff/RespondentN/A...............for the Defendant/Applicant