P.H.S v S.M.R [2017] KEHC 9749 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

CIVIL SUIT NO.11 OF 2014 (O.S)

IN THE MATTER OF DIVISION OF MATRIMONIAL PROPERTY

AND

IN THE MATTER OF THE MATRIMONIAL PROPERTY ACT (2013)

P.H.S.............................................................................APPLICANT

VERSUS

S.M.R……………………………….........................RESPONDENT

JUDGMENT

1. The applicant and the respondent got married under Hindu customary law on 29th July 2005.  The marriage was subsequently registered at the Registrar of Marriages’ offices in Nairobi on 14th February 2007.  They divorced in HC Divorce Cause No. 5 of 2012 at Nairobi.  A decree absolute was issued on 12th May 2014.  The marriage was not blessed with any children.

2. The applicant brought the present originating summons dated 18th February 2014 (and amended on 7th March 2014) under section 17 of the Married Women Property Act (1882) (now repealed) seeking:

a declaration that all the shares in the respondent’s name in various companies as listed in the statement generated by Dyer and Blair, Investment Bank were jointly owned and that the respondent held fifty percent (50%) of the same in trust for the applicant;

a tracing order to issue against the respondent in respect of his said shares listed in the said statement which may be sold to a third party by the said respondent;

the shares in the statement be valued and sold and that the net proceeds be shared equally between the respondent and the applicant;

in the alternative to prayer (c) above, the respondent do pay to the applicant her fifty percent (50%) share of the total value of shares of Kshs.4,734,238. 50;

the respondent do return or otherwise cause to be handed over to the applicant her property which was gifted to her at the wedding, which said property was more particularised  in “PHS2”;

in the alternative to prayer (e), the gifts not returned to the applicant be valued and the respondent does pay the applicant Ksh.3,037,920. 00;

the applicant be given such further and other relief as it may be deemed fit; and

costs of the suit.

3. The applicant swore a supporting affidavit to state that during their wedding ceremony she was given, as gifts, gold by her family, her family friends and respondent’s family.  She gave a list of the items at “PHS2”.  She stated that all the gold was 22 karat and weighed 933. 6 grammes.  The gold was stored in a deposit locker at CFC Bank, Nairobi in joint names of the two.  Her case was that the respondent had, upon divorce, refused to give her the gold.  She gave the current value of the gold as Kshs.4,800/= per gram, making a total of Kshs.3,037,920/=.  Regarding the shares, she stated that during the marriage the respondent had acquired shares worth 9,468,477/= at EABL (1200 share), KCB (175,922 shares), KNRE (1318 shares), KQ (65,000 shares), MSC (120,000 shares) and SCBK (527 shares).  She sought Kshs.4,734,238/50 which was half value of the shares.

4. The applicant’s case was that, during the marriage, she did domestic work, including cooking, in a house that had the respondent and his parents; that it was not possible for her to take up full time employment owing to her commitment at the home.

5. The respondent filed a replying affidavit to state that, as is custom with Hindus, the respective families each gifted the couple with gold during the wedding.  The gold was kept in deposit box to which each had a key.  When the applicant left the matrimonial home she instructed the Bank not to grant him access to the box.  When they both opened the box it was found that all the gold belonging to the applicant was there.  He returned to the applicant the gold wedding ring weighing 11. 8grammes and a gold bracelet weighing 35. 5 grammes.  These items had been given to him by the applicant’s family.  He was left with the gold items that had been gifted to him by his family.  Regarding the shares, he stated that before the marriage, he had borrowed money from his father which he had used to purchase them.  When the shares market peaked in 2011 he sold the shares and returned to his father the principal amount.  He denied that the shares formed part of the matrimonial property.

6. Further, he swore that the applicant did not do any domestic work because  they lived in his parents’ home where they had servants; that even when the family made effort to get the applicant employment she refused to work.

7. The applicant was represented by M/s Quadros and respondent by M/s Nyaga.  The applicant gave evidence and was cross-examined.  The respondent did not tender any evidence in defence.

8. During evidence, the applicant testified that during their wedding the couple was gifted in gold by their families and friends.  They kept the gold in a deposit box at CFC Bank.  She stated that they were given only one key which was kept by the respondent.  She was, however, cross-examined to admit that each had a key to the box.  She stated that when they separated, and during the divorce proceedings, it was agreed that they go to the box and share out the gold.  When they went to the bank, she found that the respondent had been there and taken some of her gold.  She collected what had been left, but he had taken her gold weighing 632. 9 grammes. The gold was in form of chains, earrings, necklaces, rings, bangles and pendants.  She gave the value of the gold as Kshs.4,800/= per gramme.  All the demanded gold was therefore worth Ksh.3,037,920/=.

9. There is no dispute the respondent had in various companies shares which he sold for Kshs.7,039,442/= and transferred the money to his father.  In the replying affidavit the respondent had claimed that the shares were bought using money lent by his father, and that he had sold the shares and returned the borrowed money.  He also stated that the shares were bought before he got married.  He, however, did not testify.  According to the applicant, the substantial shares were bought before marriage, but that the respondent continued to buy even after marriage.  That was not challenged.  When he sold he transferred all the proceeds to his father.  It is not clear how many of the shares were bought during the marriage, but it is clear that the value of the shares improved during the marriage.  That it was in 2011.  The respondent sold them to make profit.  I estimate that shares worth Kshs.3,000,000/= constituted matrimonial property.  I have considered that most of the shares had been bought before the parties got married.

10. The applicant was not led to state what her contribution was to the acquisition of the shares.  She was not employed but I consider that under section 2 of the Matrimonial Property Act, 2012, domestic work and management of the matrimonial home, and companionship do count towards the contribution to the acquisition of matrimonial property.  Under section 14(a) of the Act, where matrimonial property is acquired during the marriage in the name of one spouse, there is a rebuttable presumption that the property is held in trust for the other spouse.

11. As regards the gold, and it was not disputed that it constituted women’s jewelleries, I find that, although got during the marriage, it was specifically for the applicant and for her use.  The respondent had his own set of gold.  It is for this reason that I find that the applicant is entitled to Kshs.3,037,920 which was the value of her gold which the respondent  took away.

12. As for the shares, doing the best that I can under the circumstances, I determine that the applicant was entitled to 30% of the shares and proceeds worth Kshs.3,000,000/= that constituted matrimonial property.  That gives her Kshs,1,000,000/=.

13. In conclusion, therefore, I order that there will be judgment in the sum of Kshs.4,037,920/= together with interest at court rates, from the date of this judgment until full payment.  The respondent shall pay costs.

DATED and SIGNED at NAIROBI this 4TH day of DECEMBER 2017

A.O. MUCHELULE

JUDGE

DATED and DELIVERED at NAIROBI this 7TH day of DECEMBER 2017

R.E. OUGO

JUDGE