MWN v TIM (Civil Suit 33 of 2017)  KEHC 13771 (KLR) (23 September 2022) (Ruling)
Neutral citation:  KEHC 13771 (KLR)
Republic of Kenya
Civil Suit 33 of 2017
M Thande, J
September 23, 2022
1.MWN the Applicant herein filed the Originating Summons (OS) dated 7.6.17 against TIM, the Respondent, seeking the following orders:
2.It is the Applicant’s case that the parties were married under Kikuyu Customary law in May 2006 and that the suit property was acquired by the parties during the subsistence of their marriage. The Applicant contends that she utilized income from her salary and businesses, to support the marriage and contributed significant amounts towards the acquisition and development of the suit property. She also made non-monetary contribution towards the development of the suit property. The Applicant further stated that the parties now live apart and that while the marriage is still subsisting, the Respondent purported to marry someone else, with whom he has 2 children. He is now in the process of disposing of part of the property to the detriment of the Applicant.
3.The Respondent opposed the OS vide his affidavits sworn on 15.8.17 and 10.7.18. He denied having married the Applicant as alleged and recalls the Applicant pressurizing him to swear an affidavit of marriage. He stated that he was working with the Mt. Kenya East Pilot Project for Natural Resources and was the sole bread winner during their cohabitation. He asserted that he purchased the suit property on 11.7.06 and developed the same without any contribution from the Applicant. He did this by taking loans from various financiers which he paid through his income. He stated that he would send construction funds to the Applicant, whose only contribution was supervising construction. He borrowed Kshs. 1,000,000/= from Ukulima Co-operative Savings and Credit Society Limited and paid Kshs. 920,0000/= into the Applicant’s account at Co-operative Bank, Kawangware Branch.
4.The Respondent stated that he became aware that the Applicant’s 2 previous marriages and cohabitation through a Life pullout in The Standard newspaper on 29.4.15. He accused the Applicant of leaving their home without notice, taking with her his motor vehicle xxxx worth Kshs. 350,000/= and counterclaimed a return of the same or the value thereof. He also claimed that she took away the household goods he had purchased including furniture, television, home theater and a generator all worth Kshs. 853,000/=. The Respondent contended that the Applicant had not proved contribution. Further, that the Application has been brought under a repealed law and is in effect bad in law. He urged that the application be dismissed with costs.
8.By consent of the parties, this matter was disposed of by way of written submissions. After considering the OS, the rival affidavits, submissions as well as the authorities cited, the following issues emerged for determination:i.Whether the Court can presume a marriage between the parties herein.ii.Whether the Applicant contributed towards the purchase and acquisition of the suit property.iii.If so, whether the suit property should be valued, sold and the proceeds be divided between the parties according to their respective contribution.
Whether the Court can presume a marriage between the parties herein
9.The Applicant contended that she was married to the Respondent under Kikuyu customary law and in the alternative urged the Court to presume a marriage between them. She relied on the ‘affidavit of marriage” she exhibited. The Respondent’s position is that they did not contract marriage under Kikuyu customary law or statutory law. He contended that he did not pay any dowry for her. He further asserted that the exhibited “affidavit of marriage” does not constitute the essentials of a Kikuyu customary marriage. The Respondent further submitted that the Applicant had been in other undissolved marriages as indicated in her story in the Standard newspaper. As such she could not contract any valid marriage with the Respondent.
10.The statutory basis of the doctrine of presumption of marriage is contained in section 119 of the Evidence Act which provides:
11.It is evident from the material placed before the Court that the parties herein were in a relationship and did in fact live together in the suit premises. The Applicant stated that she is in occupation of the same while the Respondent moved to Embu.
12.The Respondent has admitted that he swore the “affidavit of marriage” but that he was coerced to do so. He stated, “I remember her pressurizing me to do an “affidavit of marriage” which was done by my advocates but little did I know it was a scheme thinly veiled to assist the applicant to claim property as an alleged wife.”
13.Black’s Law Dictionary Tenth Edition defines an affidavit as:
14.The elements of an affidavit are that first, the contents therein are facts declared by the deponent. Black’s Law Dictionary Tenth Edition defines “fact” as “something that actually exists; an aspect of reality.” Second, the declaration of facts is voluntary. Accordingly, every affidavit must be presumed to contain facts and that those facts are declared voluntarily, unless the contrary is proved. Other than stating that he was coerced to swear the “affidavit of marriage” the Respondent did not place any material before the Court to demonstrate such coercion. Further, the Respondent has placed no evidence before the Court to support his claim that the affidavit was a scheme by the Applicant to claim property as an alleged wife. Indeed, if this were true, one would wonder why several years after, in 2012 and 2015, the Respondent would send the Applicant money for construction of their home as he has alleged.
15.It will be noted that the “affidavit of marriage” is sworn by both the Applicant and the Respondent on 4.4.07. The parties stated that they got married under Kikuyu Customary law and have since lived as man and wife. The purpose of the affidavit as stated therein was to enable the Applicant adopt the Respondent’s name to reflect her status as a married woman. Notably, the “affidavit of marriage” was drawn, not by the Applicant but by the Respondent himself. Further, the affidavit was sworn before SKM Wandaka, the Respondent’s current advocates. Having stated on oath that he and the Respondent were married under customary law and were living together as husband and wife and further that there was an intention for the Applicant to adopt his name to reflect her status as a married woman, the Respondent cannot be heard to state the contrary. He is bound by the doctrine estoppel which the Court of Appeal in the case of Serah Njeri Mwobi v John Kimani Njoroge  eKLR defined as follows:
16.The Respondent contended that the Applicant had no capacity to contract marriage with him as she was in undissolved marriages according the story in the Standard newspaper. A fact that she had not disclosed to him.
17.It is trite law that for the Court to presume a marriage however, it is necessary that the parties have capacity. This was the holding in Phylis Njoki Karanja & 2 others v Rosemary Mueni Karanja & another  eKLR, where the Court of Appeal stated:
18.Although the Respondent contended that the Applicant was previously married and had no capacity to contract marriage with him, he did not indicate the dates of the previous marriages. I also note that this issue was not addressed by the Applicant in her submissions.
19.I have read the exhibited pullout of The Standard newspaper of 29.4.15. It has very scanty details about the Applicant’s past life. She stated that she was born to a teenage mother who was shunned by her family. The Applicant described that she had a difficult childhood and ran away from home after her stepfather attempted to rape her. On marriage, the Applicant states that she married at 17 and had a child. That marriage did not last and the child died. At 19 she married again but that the marriage did not last as her husband committed suicide and she was once again out in the cold. No evidence was placed before the Court to demonstrate that the Applicant was still married in 2006 when she and the Respondent got married according to the “affidavit of marriage”. Indeed, at the time, she was 26 years old according to her exhibited national identity card. In light of this, I find that the contention that the Applicant had no capacity to contract a marriage on account of previous marriages, is unfounded.
20.In the case of M.W.G v E.W.K  eKLR, relied on by the Applicant, Bosire, JA. Stated:
21.Duly guided, I find that the Applicant not being in any marriage, and had capacity to enter into marriage with the Respondent or any other person.
22.The Respondent maintained that there was no marriage between him and the Applicant. He relied on the case of Elizabeth Gachambi v Grace Nduta Kinuthia & another  eKLR where Ougo, J. stated:
23.I fully agree that the “affidavit of marriage” is not proof of customary marriage between the parties herein. To conclude that such a marriage did exist would require evidence to be adduced demonstrating the essentials of the same. In the absence of such evidence, I draw the conclusion that no such marriage was contracted between the Applicant and the Respondent.
24.What then was the relationship between the parties? It is evident that the parties lived together in the suit property which was acquired and developed during their period of coverture. They both swore an affidavit in 2007 stating that they were married in 2006 and had lived together as husband and wife since. They stated that the purpose of the affidavit was for the Applicant to adopt the name of the Respondent to reflect her status as a married woman. The Court has found that the Respondent has not demonstrated that he was coerced to swear the affidavit or that the affidavit was a scheme by the Applicant to claim property as an alleged wife. Similarly, the Court has found that the Applicant had capacity to contract a marriage.
25.In view of the foregoing, I find and hold that all the circumstances herein taken together are adequate for this Court to presume a marriage between the parties herein.
Whether the Applicant contributed towards the purchase and acquisition of the suit property
26.It is not disputed that the parties lived together in the suit property. Having found that the parties were married, the suit property was their matrimonial home, within the meaning of Section 6 of the Matrimonial Act.
27.The basis upon which matrimonial property is divided between spouses, is contribution. A party seeking a share in matrimonial property must demonstrate that they have contributed to the acquisition or development of the said property.
28.In the case of jointly acquired properties during the marriage, Section 14(b) of the Act provides that there shall be a rebuttable presumption that the parties’ beneficial interest in the matrimonial property is equal:Where matrimonial property is acquired during marriage—
29.The exhibited sale agreement and share certificate exhibited by the Applicant shows that the suit property was acquired by the parties jointly. A reading of Section 14 of the Act reveals that the Court will make a presumption that joint property that is acquired during coverture, is held by spouses equally. This presumption may however be rebutted by evidence to the contrary.
30.In the case of O K N v M P N  eKLR, the Court of Appeal had this to say about this presumption:
31.Both parties claimed to have contributed to the acquisition of the same. The Applicant claimed that she raised funds through her employment and made monetary. She also made non-monetary contribution. She exhibited receipts for building material purchased for the construction of the property amounting to Kshs. 1,326,228/=.
32.On his part, the Respondent contended that he alone contributed to the acquisition and development of the matrimonial home through loans. The Respondent stated that he borrowed Kshs. 1,000,000/= and deposited Kshs. 920,000/= into the Applicant’s bank account with Co-operative bank, Kawangware branch, for construction. He exhibited the bank transaction vouchers. This was denied by the Applicant.
33.I have carefully looked at the vouchers. There is a voucher dated 9.11.12 for Kshs. 13,000/= and 2 other vouchers showing deposits of Kshs. 20,000/= dated 6.1.14 and 9.7.15 respectively. The date on the voucher for Kshs. 920,000/= shows the day as 21st and the year as 2013 but the month is not legible. The Applicant’s banks statement for the year 2013 has no entry for the amount of Kshs. 920,000/= which the Respondent claimed to have deposited. A closer scrutiny of the voucher in respect of this amount shows that the same does not have a bank stamp like the others. In view of this, I am not persuaded that the Respondent made such deposit in the Applicants bank account as claimed.
34.From the evidence on record, it is not clear how much each party contributed towards the purchase and development of the suit property. In the premises, the presumption under Section 14 of the Act that the parties’ beneficial interest in the suit property is equal, remains unrebutted. As stated in the case of O K N v M P N (supra), in the absence of a rebuttal, the Court will presume that each party made equal contribution towards the acquisition and development of the property.
35.A similar finding was made in the case of In Peter Mburu Echaria V Priscilla Njeri Echaria  eKLR where the Court of Appeal stated:
36.Duly guided, and given that the parties’ contribution is unascertainable, I find that this is a proper case where it is equitable to apply the maxim “equality is equity.” The parties’ beneficial interest in the suit property is equal.
Whether the suit property should be valued, sold and the proceeds be divided between the parties according to their respective contribution
37.As the Court considers this issue, it will be guided by the principle set out in Article 45(3) of the Constitution of Kenya, 2010 which provides:
38.In the case of P N N v Z W N  eKLR, relied on by the Respondent, Kiage, JA. had this to say of Article 45(3):
39.The learned Judge went on to state:
40.As indicated earlier, the basis for division of matrimonial property is proven contribution. The Court has found that none of the parties’ contribution was ascertainable. As such, their beneficial interest in the suit property was found to be equal. It follows therefore that it is necessary in the interest of justice that the suit property be sold and the proceeds shared equally between the parties. To achieve this, a valuation should be done in order to ascertain the market price of the suit property.
41.In the end, after taking into consideration the totality of the evidence and the applicable law as analyzed herein, I make the following orders and declarations:i.The Court presumes a marriage between the Applicant and the Respondent.ii.The Applicant and the Respondent are entitled to Land Reference Number 4148/193 in equal shares. The property shall be valued and sold and the proceeds of sale shared equally between the parties.iii.This is a family matter and the circumstances of the case do not call for an award of costs.
DATED, SIGNED and DELIVERED in NAIROBI this 23rd day of September 2022_______________________________M. THANDEJUDGEIn the presence of: -…………………………………………………………… for the Applicant…………………………………………………………… for the Respondent……………………………………………………..……. Court AssistantPage 7 of 7