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Court of AppealPartially AllowedCivil Appeal (Nairobi)· [2015] KECA 819 (KLR)

DEN v PNN (Civil Appeal 226 of 2012) [2015] KECA 819 (KLR)

Court of Appeal of Kenya
9 March 2015
11,136 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that jointly-registered matrimonial property belongs to both spouses equally, but corrected how one spouse should be compensated.

What this practically means

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Executive summary

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This is a first appeal decided by a three-judge bench of the Court of Appeal at Nairobi against the judgment of Karanja, J delivered on 19th July 2012 in a matrimonial property dispute under section 17 of the Married Women's Property Act 1882, brought after the parties' marriage of December 1990 was dissolved in December 2010. Two properties - the Nairobi matrimonial home and a Nyandarua parcel - were registered in the parties' joint names. The appellant sought sale of both and equal sharing of proceeds; the respondent claimed sole contribution and sought to retain the matrimonial home where she lived with the children. The trial judge declared the properties jointly owned in equal shares, kept the matrimonial home with the respondent, gave the Nyandarua property to the appellant, and ordered the respondent to pay the appellant Kshs.1,000,000 as compensation. On appeal, the Court dismissed three of the appellant's complaints: failure to call for certified titles under Order 21 rule 6 of the Civil Procedure Rules did not vitiate the judgment; the finding that the respondent and children lived in the matrimonial home was supported by the appellant's own affidavit; and the trial judge did not take extraneous matters into account in considering the children's welfare. The Court held that children's welfare is a relevant consideration under section 17 when deciding whether the matrimonial home should be sold, provided it does not affect each spouse's percentage shareholding. However, the Court found the Kshs.1,000,000 compensation unexplained and wrong in methodology: the correct approach was to total the values of the two properties and apportion the aggregate equally, with compensation for any shortfall. Invoking section 78(2) of the Civil Procedure Act, section 3(1) of the Appellate Jurisdiction Act and Rule 1(2) of the Court of Appeal Rules, the Court directed a fresh valuation before the Family Division. The appeal was allowed, the trial orders set aside and substituted with a declaration of equal shares, termination of the co-ownership through fresh valuation, transfer of the Nyandarua property to the appellant and the Nairobi property to the respondent on condition of payment of the shortfall, liberty to apply, and each party bearing own costs.

Key legal issues

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01

Compliance with Order 21 rule 6 of the Civil Procedure Rules (production of certified copies of title before judgment altering title to land)

Holding

The default did not vitiate the judgment because the respondent did not contest the authenticity of the copies of titles exhibited, and the mischief of the rule is to prevent orders made in vain over non-existent land.

Reasoning

The rule uses mandatory language ('shall') and the trial judge did not call for certified copies. However, both parties proceeded on the copies exhibited by the appellant, the respondent never contested their authenticity, and the trial judge noted the properties were registered in the joint names. The mischief of the rule is preventing vain orders over non-existent land, which was not in issue here.

p. 5
02

Whether the trial judge erred in finding the respondent and the children lived in the matrimonial home

Holding

No error; the appellant's own further affidavit acknowledged the respondent and the children were living in the matrimonial home, with two minor children in boarding school returning during holidays.

Reasoning

The Court re-appraised the competing depositions: the appellant was non-committal about the adult children's independence and admitted the respondent stayed in the matrimonial home with the minor children during school holidays. There was no basis to depart from the trial judge's finding on the material before her.

p. 11
03

Whether consideration of the children's welfare was extraneous to matrimonial property division under section 17 of the Married Women's Property Act 1882

Holding

The children's interests are a relevant consideration in determining whether the matrimonial home should be sold, provided it does not affect each spouse's percentage shareholding.

Reasoning

Section 17 confers a wide discretion to make orders 'as he thinks fit' but is silent on children's presence. Reading it with Article 53 of the Constitution and section 4(2) of the Children's Act, the Court held that a court may consider children's welfare on the question of disposal of the home, but not in computing shares. The trial judge confined herself to whether the home should be sold, not to the share entitlement.

p. 10
04

Redistribution of the jointly-registered properties and the methodology for equal sharing

Holding

The trial judge's Kshs.1,000,000 compensation order was unexplained and wrong; the correct approach is to total the values of the two properties and give each spouse an equal half share of the aggregate, with compensation for any shortfall in kind.

Reasoning

Both properties were jointly owned in equal shares. Given the disparity in the values of the Nairobi and Nyandarua properties, equal sharing required totalling the values and apportioning the aggregate equally, the spouse taking the more valuable property compensating the other for the shortfall. The trial judge's unexplained Kshs.1,000,000 award was set aside and fresh valuation directed.

p. 13
05

Whether the appellate court could order fresh/current valuation of the properties suo motu

Holding

Yes; the Court had jurisdiction under section 78(2) of the Civil Procedure Act, section 3(1) of the Appellate Jurisdiction Act and Rule 1(2) of the Court of Appeal Rules, given the challenge to the adequacy of compensation.

Reasoning

Although parties are generally bound by their pleadings, the Court identified exceptions, including unpleaded issues left to the court, and points of law arising on admitted facts. The adequacy of the Kshs.1,000,000 compensation could not be interrogated without regard to current values, so fresh valuation served the best interests of the parties.

p. 17

Legal principles established

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  • Where property acquired during marriage is registered in the joint names of spouses, the law assumes it is held in equal shares and each party owns an undivided share therein
  • Under section 17 of the Married Women's Property Act 1882, the welfare of children of the marriage is a relevant consideration in determining whether the matrimonial home should be sold, so long as it does not affect the percentage shareholding of each spouse
  • Failure to produce a certified copy of title as required by Order 21 rule 6 of the Civil Procedure Rules does not vitiate a judgment where the authenticity of the title documents is not contested and both parties proceed on the copies exhibited
  • Where an appellant challenges the adequacy of compensation for his share, an appellate court has jurisdiction under section 78(2) of the Civil Procedure Act and section 3(1) of the Appellate Jurisdiction Act to order fresh valuation of the suit properties even where not requested by the parties
  • An appellate court is generally confined to issues arising from the pleadings, but may base its decision on an unpleaded issue if it appears from the course followed at trial that the issue was left to the court for decision
  • The Married Women's Property Act 1882, though repealed by the Matrimonial Property Act 2013, remains the applicable law to suits filed before its repeal

Court orders

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  1. 1.The appeal is allowed and the orders of the learned Judge made on 19th July 2012 are set aside and substituted with the Court's orders
  2. 2.A declaration that Title Number Nairobi Block [particulars withheld], House No. [particulars withheld] High View Estate Phase II Nairobi and Title No. Nyandarua/Oljoro Orok Salient/[particulars withheld] were and still are the joint properties of the appellant and the respondent in equal shares
  3. 3.The equal sharing is to be terminated on the basis that the aggregate value of the two properties shall be apportioned equally between the appellant and the respondent
  4. 4.The parties shall within thirty days cause the matter to be mentioned before the presiding judge, High Court Family Division, for directions on the appointment of valuer(s) and filing of valuation report(s); the costs of valuation to be borne equally by the parties
  5. 5.The Nyandarua property shall be transferred into the sole name of the appellant D E N
  6. 6.The Nairobi property shall be transferred to the respondent P N N on condition that within 120 days from the filing in Court of the current valuation reports she pays the appellant the amount forming the shortfall on the equal sharing of the aggregate value of both properties after factoring in the value of the Nyandarua property
  7. 7.Liberty to apply in the High Court
  8. 8.Each party shall bear own costs
On appeal from
High Court of Kenya at Nairobi
HCCC No. 20 of 2011
Jurisdiction invoked
First appeal under Article 164(3) of the Constitution of Kenya 2010, section 78 of the Civil Procedure Act, section 3 of the Appellate Jurisdiction Act and Rule 29(1) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "DEN v PNN (Civil Appeal 226 of 2012) [2015] KECA 819 (KLR)", Case Analysis (2015). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/819/eng@2015-03-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.