PMR v JWM alias JWR, SWM & JKM [2022] KEHC 2416 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

ORIGINATING SUMMONS NO.5 OF 2018

PMR............................................................................................APPLICANT

VERUS

JWM alias JWR

SWM

JKM......................................................................................RESPONDENTS

RULING

1. Vide an Originating Summons dated and filed on the 2nd July, 2018, PMR (hereafter the applicant ) sued his wife JWM (hereinafter the 1st respondent ) and their  two children ( hereinafter the  2nd and 3rd respondents  respectively) seeking  division  of  several properties alleged to have been  acquired during the  subsistence of their marriage.

2. Parties agreed by consent to settle the dispute without going to full trial. Accordingly, they executed a written consent contained in a letter dated 7th November, 2018 which was adopted as an order of the court on 15th November, 2018. The said consent reads as follows;

By consent.

i. The Applicant and the 1st Respondent have agreed to forgive one another and give their marriage a second chance.

ii. The Applicant and the 1st Respondent have agreed that all the suit properties be held jointly by the Applicant and the 1st Respondent and the marriage to continue as before.

iii. The bank account number 0790xxxxxxxxx with Equity Bank Ltd, Voi Branch held in joint names to continue being operated by the Applicant with notification to the 1st Respondent as it has been operated before this suit was filed.

iv. The 1st Respondent shall give the Applicant the car and the logbook of motor-vehicle KCN xxxx and transfer the same in the name of the Applicant and the Applicant shall buy a new car for the 1st Respondent to be registered in her name.

v. The Applicant shall file a notice of withdrawal of the divorce proceedings in Divorce Cause Number 8 of 2018 pending in Kilifi Court.

vi. The following properties shall be held and registered in the joint names of  the Applicant and the 1st Respondent and a conveyance  shall be  effected forthwith to reflect the same:-

1) Plot known as Magumoni/Thuita/xxxx

2) Plot known as Magumoni/Thuita/xxxx

3) L. R.  Number Karingani/Ndagani/xxxx

4) L. R.  Number Karingani/Ndagani/xxxx

5) Plot no. xx Ndara ‘A’ Land Adjudication Section,Voi consisting of 11 guest rooms going for Kshs 700 a night and 9 shops rented at Kshs 7000 per month- PLOT NUMBER xxx, Voi with Zion Guest House.

6) Unidentified plot at Maweni ,Mtwapa with 7 rental rooms.

vii. Plot no. xxx Kaloleni Juu Ndara ‘A’ Land Adjudication Section, Voi shall be gifted to the 2nd Respondent.

viii. Sophia Voi allocation number 106 with the buildings thereon shall be gifted to the 3rd Respondent and the rent shall continue to be collected by the applicant and the 1st respondent for investment.

ix. Plots in Mtwapa Known as L. R.  Number xxxx/xxx Original Number 9122/5/45 also known as Plot number xx and L. R.  Number xxxx/xxx Original Number xxxx/x/xx also known as Plot number xx both curved out of L. R NO. xxxx/x(Original Number xxxx/x/x two title deed have been issued shall each remain in the names of the applicant and the 1st Respondent separately.

x.  Subdivision Number xxx (Original number xxx/xx) Section III MN registered in the applicant and the 1st Respondent’s name in Mtwapa shall continue to be held in joint names

xi. The Applicant and the 1st Respondent have agreed to continue running the Chicken and Cattle business separately as they did before.

xii. All cases reported to the police by the Applicant and the 1st Respondent shall be withdrawn forthwith.

xiii. The 2nd and the 3rd Respondent consent and approve the terms of this consent.

xiv. Each party shall bear his/her own costs of this suit.

xv. Each party be at liberty to apply

3. Subsequently, the above consent was revised vide another consent dated 8th August, 2019 which consent was adopted  as an  order of the court  on 6th February, 2020.  Therefore, the second consent which varied  the terms of the  first  consent reads  as follows;

By consent,

(i) That paragraph (i).(iii),vii),(ix),(x),(xi) for the consent dated  7th day of  November 2018 and executed on even date shall remand previously agreed and are not varied by the terms of this  consent.

(ii) that  the terms of  paragraph  (ii) and (vi) of the  consent  dated  the  7th  day of November 2018 are varied in the  following terms that the applicant  has gifted the  1st respondent  as a spousal  gift he following properties

(a) Unidentified plot at Maweni with 7 rental room.

(b) Alpha guest house plot No xx Ndara “A” land adjudication section Voi

(c) Zion Guest use /Voi Plot No xxxx/xxx

(d) Mtwapa Luxury Plot No Cr xxxx

(ii) And the 1st respondent has gifted the applicant spousal gift the following properties

(a) Zion guest house Mtwapa Plot No xxxxx

(b)Chuka plot L.R No Karingani/Ndagani/xxxx

(c)Magumoni/Thuita/L.R No.Magumoni/Thuita /xxxx

(d) House in Mukuuni Meru County

(iii)The parties acknowledge that paragraphs (i) (iii) (vii) (viii) (xi) of the consent dated 7th day of November, 2018 have been complied with by the parties as agreed in the consent.

(iv) The 2nd and 3d respondents consent and   approve the terms of his consent

(v) Each party be at liberty to apply.

4. Later, the applicant moved this court vide a notice of motion dated 2nd   Setember,2021 seeking orders that;

i. That this application be certified as urgent and be heard exparte in the   first instance.

ii. That this honourable court be pleased to issue a vesting order unto the applicant /decree holder ownership of Plot Number Zion Guest House Mtwapa Plot No xxxx as per this hounarble court decree herein.

iii. That this honourable court does order the 1st respondent/judgment debtor to sign transfer documents for the said plot Number /Zion Guest House Mtwapa Plot No. xxxx in favour of the applicant/decree holder forthwith and in default the deputy registrar of this honourable court be ordered to execute the same on behalf of the 1st respondent/judgment debtor.

iv. That the land Registrar in Kilifi Land Registry be directed to dispense with the production of the copies of the PIN, Identity card and passport size photograph of 1st respondent /judgment debtor while registering plot number Zion Guest House Mtwapa Plot No xxxxx should the 1st respondent/judgment debtor decline to supply the said documents.

v. That the 1st respondent /judgment debtor be detained at Shimo la Tewa prison for a period of six months or as specified by the court for disobeying the consent order executed by her and recorded in court in her presence.

vi. That  costs  of this application  be provided for by the  1st respondent

5. The application is premised upon grounds stated on the face of it and averments   contained in the affidavit in support sworn on 2nd September, 2021. It is the applicant’s case that the 1st respondent has refused and or failed to execute nor surrender necessary documents to facilitate transfer of plot No. Zion Guest House Mtwapa Plot No xxxxx pursuant to a consent agreement in the letters dated 7th November 2018 and 8th August 2019.

6. That the applicant stands to lose the loan facility already approved under favourable terms while the respondents continue enjoying the use of their properties already transferred to them. He further stated that the loan facility taken in his joint names with the 1st respondent stands to suffer non-repayment as he is the one servicing the loan yet the guest house business is compromised by failure to develop the same property on which it is erected.

7. Upon service of the application, the 1st respondent did not file any response. Instead, she  chose to  file a notice of Preliminary Objection  dated 20th September, 2020 arguing that;

i. The issues raised herein are res-judicata as they have been heard and determined by this honourable court and consent dated 6th February, 2020 adopted.

ii. That  the orders sought in the application are inconsistent with the final order dated 6th February,  2020 in the following terms;

(a) That order number 10; that the plot referred to as Plot No xxxxx is the same plot referred to under Order number X as subdivision xxx ( Original  number xxx/xx Section  III MN), which order is to the effect that the  said property is to be held in the joint  names of the applicant and 1st  respondent.

(b) That the application therefore seeks to set aside the consent orders of this court recorded on the 6th February, 2020.

8. When the matter came up for hearing, the court directed for the application and Preliminary Objection to be heard together. Parties canvassed the application orally. Ms Osino appearing for the applicant reiterated the content contained in the affidavit in support of the application. Learned   counsel  contended that the  application was not  opposed by the  1st respondent who  failed to file  a replying affidavit  on  matters of  fact. That the preliminary objection does not meet the threshold set out in the celebrated case of Mukisa biscuits considering that it does not raise pure points of law.

9. Counsel submitted that all properties were transferred as per the consent order save for Zion Guest House  Mtwapa plot No xxxx that was  given to the applicant as per the  consent order adopted on   6th February, 2020. That the  1st respondent  has  ignored the order by  refusing to  execute and surrender  necessary documents  to facilitate  transfer  of the  subject property.

10.    M/s Osino  urged the  court to order the 1st  respondent to  execute necessary transfer documents or in the  alternative  order the Deputy Registrar  to sign on her behalf  and  that the Land  Registrar to dispense with the requirement  for production of those  documents. In support of this proposition counsel relied on the decision in the case of  EMM Vs GWM ( 2018) e KLR, In re- estate of  Simon Kiprop Cheruiyot ( deceased ) (2021) e KLR, Simon P Kite Chemoltor Vs  William Loishakau ( 2017) e KLR and Esther  Mvunde Vs Felix Moibet, divorce No 31/2015 where various courts  made  orders for the respective Deputy Registrars  to  execute  documents to transfer   subject properties  in compliance with court orders on behalf of a disobedient party.

11.   Regarding the argument by the 1st respondent that order No X was not reviewed, Counsel opined that the same was reviewed under the consent adopted on 6th February 2020.

12.    On their part, M/s Ogoti for the respondent urged the court to find that order No 10 directed that plot No xxx (Original No xxx/xx) be jointly owned. That the plot is the same as plot No xxxx Zion guest house Mtwapa which the applicant seeks now transferred to himself absolutely. That order No X is still valid hence it will amount to resjudicata if the court were to make fresh orders on the same.

13.    As to why the 1st respondent did not file a reply, it was argued that they thought the preliminary objection would have disposed of the matter with finality.

14.   I have considered the application herein and the preliminary objection filed   thereof. Further, I have considered oral submissions by both counsel.

15.   The crux of the matter is whether the prayers sought amounts to resjudicata or better still whether the application seeks to amend the consent order entered on 6th February, 2020 through the backdoor.  Whereas the application is not opposed by way of a replying affidavit, that does not mean that the application will automatically succeed. The applicant is duty bound to prove that he has a meritorious application see Gideon Sitelu Konchellah  Vs Julius Lekakeny  Ole Sunkuli &2 others  ( 2018)e KLR.

16.    It is the applicant’s case that by another consent dated 8th August, 2019 and adopted as an order of the court on 6th February 2020, certain terms of the consent dated 7th November, 2018 were reviewed. At stake is the Plot referred to as Zion Guest House Mtwapa Plot No xxxxx. The consent dated 8th August, 2019 reviewed certain terms of the consent dated 7th November, 2018 and more particularly clauses ii & vi.

17.   According to clause ii of the consent dated 8th August, 2019 there are two parts. The 1st part constitutes of paragraphs a -d being spousal gifts given to the 1st respondent by the applicant. These  properties include;

a) Unidentified plot at Maweni with 7 rental rooms.

b) Apha guest house plot No xx Ndara “A” land adjudication  section Voi

c) Zion  Guest use /Voi Plot No xxxx/xxx

d) Mtwapa Luxury Plot No Cr xxxxx

18.   On the second part of clause (ii), the 1st respondent also gifted the applicant some properties referred to as;

a) Zion guest house Mtwapa Plot No xxxxx

b) Chuka plot L.R No Karingani/Ndaganixxxxx

c) Magumoni/Thuita/L.R No.Magumoni/Thuita /xxxx

d) House in Mukuuni Meru county

19.   Parties seem to agree that all  properties as per the  two consents have been transferred  except one  i.e  Zion Guest House xxxx which  the 1st respondent claims is  the same as subdivision no.xxx (Original  No xxx/xx section 111 MN) registered in their names  hence their  joint property in  consonance with  clause x of the consent dated  7th November, 2018 which was not specifically affected by the consent dated 8th August, 2019.

20.   From the record, there is nothing attached to show that the plot referred to as xxx in clause x of the consent dated 7th November, 2018 is the same as guest house Plot No xxxxx. This allegation which is a matter of fact was not substantiated by the 1st respondent. Although the, consent  dated 8th August, 2019 provides that   paragraphs   (clauses) (i) (iv)(vii)(vii) (ix)(x) and (xi) were not affected, the inclusion of clause ii in the consent of 8th August, 2019 automatically  affected clause No  X  of  consent dated 7th November, 2018.

21.   Ms Ogoti stated that the two plots are the same but that is evidence from the bar. This is a matter of fact which should have been rebutted through affidavit evidence and not a preliminary objection.

22.   In the absence of any evidence that the two plots refer to the same thing, the  only  logical  conclusion  remaining is that they are   independent  of each  other as  they are  bearing different  registration  numbers hence there is no  linkage that  the two  refer to the same plot.

23.   It is trite that he who alleges must prove. In this case, the 1st respondent lost a chance in proving that the properties refer to the same thing by attaching evidence. This would have been possible through filing a replying affidavit. Consequently, the only standing issue is whether the 1st respondent is supposed to transfer   property known as on xxxxx Mtwapa.

24.   The consent dated 8th August, 2019 is very clear. There is no ambiguity in clause ii part two which provides for transfer of plot known as Zion Guest House xxxxx as a spousal gift to the applicant. Nobody disputes the signing of the consent. The question is, for what purpose was plot no. Zion guest house Mtwapa xxxxx introduced in clause ii of the consent dated 8th August 2019? Even if we found that the two plot numbers refer to the same thing i.e plot referred in clause x of the consent dated 7th November 2018 and clause ii of the consent dated 8th August, 2019, clause ii of the consent of 8th August, 2019 will supersede clause x of the consent dated 7th November, 2018 being the latter agreement.

25.   Consequently, the argument that the prayers sought seeks to amend the order is not correct. In my view, the doctrine of res-judicata does not apply as what is being sought is the implementation and or execution of the consent order.  Accordingly, the   consent order dated 7th November, 2018 and 8th August, 2019 must be obeyed to the letter.

26.     As to whether the 1st respondent should be committed to civil jail, the same is subject to proof of salient ingredients for contempt of court to apply. It is trite law that a court order must be obeyed to maintain and uphold the dignity of the court. See Teachers Service Commission  Vs Kenya National  Union of Teachers and 2 others  ( 2013) e KLR  where the court  held that;

“the reason why courts will punish for contempt of court is to safeguard the rule of law which is fundamental in the administration of justice...”

27.  In Hadkinson Vs Hadkinson  ( 1952) 2 ALL E.R 567 ,Romer J  expressed himself thus;

“It is the plain unqualified obligation of every person, against, or in respect of who an order is made by competent jurisdiction to obey it unless and until that order is discharged.”

28.    Before a court could punish anybody for contempt of court, the applicant must prove that the order was known, it was unambiguous, there is disobedience and that the disobedience it was deliberate. In this case, there was genuine confusion between the order clause X in the consent dated 7th November, 2018 against clause ii part two of the consent dated 8th August, 2019. With that misinterpretation, I do not find that the 1st respondent deliberately disobeyed the order. I will therefore spare her from any liability.

29.  In view of the above holding, I do direct the 1st respondent to execute and surrender all transfer documents to the necessary authorities or institution to  effect the transfer  of Zion Guest House plot No xxxxx to the  applicant within 30 days  in default  the Deputy Registrar  to  sign on her  behalf  and the  Land Registrar  Kilifi to  dispense with   production  of the  needed documents. In so directing, I am guided by the holding in the case of EMM Vs GWM (Supra) where the court   made similar orders to ensure compliance with court orders.

30.   As regards the preliminary objection, the same amounts to pleading matters of fact and not points of law. In the case of  Mukisa Biscuits  Manufacturing  Company Vs Wast End Distributors Limited (1969) E.A 696 the court  held that a Preliminary Objection  must be  argued on a point of law or on  the  assumption that  all facts  pleaded by the  other  side  are correct and it cannot be raised if any fact has  to be  ascertained or if what is  sought is exercise of  judicial discretion.

31.   As stated above, the preliminary objection is not based on any point of law which if upheld would dispose of the matter with finality. Accordingly, the preliminary objection is dismissed. In conclusion, the application is allowed with orders that;

a) The 1st respondent is hereby directed to execute and surrender all necessary transfer  documents to  facilitate  transfer  of  Zion Guest House  Mtwapa Plot No xxxxx to the applicant within  30 days and in default  the  Deputy Registrar  to  execute the same  and that the Land Registrar Kilifi  do dispense with  the  requirement for production of  such documents.

b) In view of order (a) above, a vesting order be and is hereby issued into the applicant/decree holder ownership of plot known as Zion Guest House Mtwapa Plot No xxxxx.

c) This being a family related issue, each party to bear own costs

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 15TH DAY OF FEBRUARY, 2022

J .N.ONYIEGO

JUDGE