EKM v JDO (Matrimonial Cause 77 of 2019) [2024] KEHC 16076 (KLR) (Family) (19 December 2024) (Judgment)
Neutral citation:
[2024] KEHC 16076 (KLR)
Republic of Kenya
Matrimonial Cause 77 of 2019
EKO Ogola, J
December 19, 2024
Between
EKM
Applicant
and
JDO
Respondent
Judgment
1.The applicant instituted this suit vide Originating Summons dated 2nd December 2019. She prayed for the following orders:-a.That a declaration be issued that the suit property Plot No. Kisumu/Dago/3097, Ukweli Area, Kisumu Municipality, Kisumu County was jointly acquired by the parties herein;b.That the aforesaid matrimonial property be shared equally between the parties herein;c.That the court do issue any other orders it deems fit;d.That each party bears its own costs.
2.The Originating Summons were supported by the applicant’s supporting affidavit. She deposed that she got married to the respondent on 27th April 2001. However, due to irreconcilable differences, the marriage broke down and a decree Nisi was issued on 12th May 2017. The applicant deposed that the Kisumu plot was acquired during the subsistence of their marriage and that it was acquired through their joint efforts and contributions. The applicant further deposed that she is a clinical researcher while the respondent is a medical doctor.
3.The respondent opposed the Originating Summons vide a Replying Affidavit. He deposed that he is the sole proprietor of the Kisumu property, and he acquired the said property exclusively and solely through his effort and finances. He added that he resides on the property with their three children. The respondent further deposed that he acquired the property around 2010-2011 using his savings from his employment and private businesses. Furthermore, he deposed that since he purchased the property, he has continuously developed and improved it.
4.The respondent contended that the applicant did not contribute in any way towards acquiring, developing and improving the Kisumu property. According to the respondent, the bank statements and receipt annexed to the applicant’s supporting affidavit alleging her contribution are not genuine. He deposed that the receipts were inconsistent with the bank statement to show contribution. The respondent deposed that even though the property was acquired during the subsistence of the marriage, it is not true that it was acquired through joint efforts.
5.The Summons were canvassed by way of written submissions which I have read and considered.
Determination
6.The Court has considered the pleadings, the evidence adduced, the exhibits and submissions filed by both parties.
7.From the evidence, it is not in dispute that the parties herein were married and that the marriage was dissolved by a Court. The point of departure is on the Kisumu property mentioned in the pleadings. As such, this court will ascertain whether the properties are, in the first instance, matrimonial properties. In the event this court finds in the affirmative, then it will venture into whether the properties ought to be shared and if so, in what proportion.
Whether the Kisumu property is matrimonial property
8.Section 6 of Matrimonial Property Act defines ‘matrimonial property’ as follows:(1)For the purposes of this Act, matrimonial property means—(a)the matrimonial home or homes;(b)household goods and effects in the matrimonial home or homes; or(c)any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.
9.The Kisumu property was purchased sometime in 2011 whilst the parties formalized their union in 2001. Hence, the Kisumu property qualifies as matrimonial property.
10.The longstanding quagmire on how matrimonial property is to be shared in the event spouses can no longer sustain their marriages and are unable to mutually agree on the distribution has now been settled by the law and the Superior Courts. The position is that the distribution depends on each spouse’s individual contributions to the acquisition of the properties. Contribution may be direct monetary contribution or otherwise.
11.Section 7 of the Matrimonial Property Act has the following to say: -
12.Section 9 of the Act also provides as under: -
13.Section 2 of the Act defines ‘contribution’ as follows: -
14.It is imperative to note that the non-monetary contribution in law is not limited or exclusive to the five categories listed above, but it is rather inclusive. It, therefore, means that a court in determining a party’s non-monetary contribution may consider other inputs by that party.
15.The Court of Appeal in PNN vs. ZWN [2017] eKLR looked into Article 45(3) of the Constitution which provides that “Parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of marriage” and expressed itself as follows: -
16.The foregoing was affirmed by the Supreme Court in JOO vs. MBO; Federation of Women Lawyers (FIDA Kenya) & Another (Amicus Curiae) (Petition 11 of 2020) [2023] KESC 4 (KLR) (Family) (27 January 2023) (Judgment). The said case remains the locus classicus in family law for it addressed three pertinent issues of great public interest.
17.On the interpretation of Article 45(3) of the Constitution, the Supreme Court variously stated thus: -
18.On the aspect of non-monetary contribution, the Supreme Court held as follows: -
19.Based on the foregoing guidance and parameters on the monetary and non-monetary contributions, this Court will now apply such to the case at hand.
20.The parties’ marriage spanned around 16 years. The applicant averred that she made both monetary and non-monetary contributions towards the purchase, development and improvement of the suit property.
21.On the purchase of the land, the applicant claimed that she contributed Kshs. 250,000 to the purchase of the land. According to the respondent, the applicant’s annextures, show that the applicant withdrew such funds but there is no proof that the funds were used to purchase the property. The respondent’s annextures show that the purchase price was paid from his bank account. The respondent further averred that between the years 2008 to 2010, the applicant had travelled to Australia for further studies. Therefore, he was the sole financier of the home and the children. So, there was no way the applicant contributed to the purchase of the land.
22.On the construction of the home, the applicant annexed receipts and stated that she spent her money on purchasing and transporting construction materials; payment of laborers and buying furniture and fittings for the house. The applicant also said that she oversaw the construction of the house.
23.The respondent stated that during the construction of the property, the applicant was on full-time employment and that there was a supervisor hired. Hence, it is untrue that the applicant supervised the construction of the property. Also, it is not in contention that the respondent visited the site each weekend to supervise and pay the workers. In addition to this, the respondent provided evidence that he has been the one who has been paying for the utilities of the home. He also stated that he has been improving the house since its construction. The respondent deposed that he also paid the school fees for the children during the subsistence of the marriage, while the applicant only paid the school fees once for the lastborn child.
24.On non-monetary contribution, the applicant further averred that as a wife she ensured that the home ran smoothly by ensuring that there was proper hygiene and sanitary conditions were maintained.
25.It is my considered view after carefully scrutinizing the evidence, that the evidence adduced by the respondent on the purchase of the land is heavier than the applicant. Hence, I am satisfied that indeed the respondent fully paid for the land.
26.On construction of the property, the evidence adduced by the applicant though contended by the respondent still tilts the scale in her favour. The applicant was a woman of means and it cannot be said that she did not spend a single cent in its construction and even purchase of fittings and furniture.
27.Non-monetary contribution oftentimes cannot be quantified. If that contribution were to be reduced to monetary terms I am sure that a woman’s non-monetary contribution in the home would amount to a higher amount compared to that of the man. It is my finding therefore that the applicant made monetary and non-monetary contributions towards acquiring and developing the matrimonial property.
28.So, is the applicant entitled to 50% of the matrimonial property? In determining the percentage of the contribution made by each party, I have carefully scrutinized the evidence of each party. The Applicant in an effort to convince the court of her monetary contribution towards the acquisition of the matrimonial properties, produced bank statements and invoices of her purchasing construction materials. It is not disputed that she is a woman of means. The Respondent however contends that he contributed much more than the applicant to the tune of 99% of the total price of purchase and development of the home.
29.The totality of my analysis of the evidence presented before me is that the applicant made a substantial monetary contribution towards developing and improving the matrimonial property. She also made substantial non-monetary contributions, which cannot be quantified in monetary terms. I am therefore satisfied that, basing my decision on the peculiar circumstances of this case, I am satisfied on a balance of probabilities that the applicant has proved her case to the required standard. I do not think that her contribution amounted to nothing as claimed by the respondent.
30.To determine this matter on a 99% - 1% ratio to the respondent and the applicant respectively would be going against the provisions of the law and condemning the applicant to a share too small to reflect her total contribution both monetary and non-monetary. Her efforts in contribution to the matrimonial property is clear to see. Consequently, I find that the applicant’s Originating Summons partly succeeds. I grant the following specific orders:a.A Declaration hereby issue that the parcel of land known as Plot No. Kisumu/Dago/3097, Ukweli Area, Kisumu Municipality, Kisumu County is the parties’ matrimonial property.b.A joint valuation exercise to be conducted to ascertain the value of the property, that is, the land and the developments thereon.c.Plot No. Kisumu/Dago/3097, Ukweli Area, Kisumu Municipality, Kisumu County shall be divided in the ratio of 70:30 in favour of the respondent.d.Given the nature of this matter, each party shall bear its own costs.Orders accordingly.
DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF DECEMBER 2024………………………………………E.K. OGOLAJUDGEIn the presence of:Ms. Kojienda h/b for Mr. Smaka for the ApplicantMr. Ouma for the RespondentGisiele Muthoni Court AssistantE. OGOLA J. Page 5 of 5