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ELCAllowedOriginating Summons dated 23rd October 2013· [2016] KEELC 702 (KLR)

C A O v J O [2016] KEELC 702 (KLR)

Environment and Land Court
13 July 2016
SKS. M. Kibunja
1,711 words in judgment
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The bottom line

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A Kenyan court awarded a divorced wife a 50% share of matrimonial land and house, holding her husband's registered title was held in trust for her.

What this practically means

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Executive summary

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The Plaintiff, a former spouse of the Defendant, filed an originating summons dated 23rd October 2013 seeking declarations that land parcel Kakamega/Sergoit/[particulars withheld] and the developments thereon were acquired during the marriage through joint contributions, that the Defendant holds the title as trustee for her, and that her beneficial interest equals that of the Defendant. The marriage had been dissolved by decree absolute on 6th February 2014. The Defendant did not offer any defence and the Plaintiff's evidence was unchallenged. The court framed three issues: whether the parties were husband and wife at acquisition, whether the Plaintiff contributed to acquisition and development and in what proportion, and whether she was entitled to the prayers sought. The court held that the Married Women's Property Act ceased to operate upon commencement of the Matrimonial Property Act 2013, enacted pursuant to Article 68 of the Constitution. Applying Article 45(3) on equal spousal rights and Section 7 of the Matrimonial Property Act on division by contribution, and drawing on the constructive trust doctrine in N.W.K v J.K.M, the court found the Plaintiff made non-financial contributions during acquisition and financial contributions of roughly Kshs.5,000,000 to construction of the matrimonial home, entitling her to an equal 50% share. Because no valuation report was availed, the court directed a professional valuation of the land with and without the house, with the report to be filed within 30 days to enable final orders on how to realise the sharing. Judgment was entered for the Plaintiff on all declaratory prayers.

Key legal issues

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01

Whether the claim is governed by the Matrimonial Property Act 2013 rather than the Married Women's Property Act 1882

Holding

The Married Women's Property Act ceased to operate upon enactment and commencement of the Matrimonial Property Act 2013

Reasoning

The originating summons invoked Section 17 of the Married Women's Property Act, but that statute ceased to operate following the enactment and commencement of the Matrimonial Property Act 2013, assented to on 24th December 2013 and commenced on 16th January 2014, in fulfilment of Article 68 of the Constitution requiring legislation to recognise and protect matrimonial property, especially the matrimonial home.

p. 2
02

Whether the Plaintiff contributed to the acquisition and development of the suit property

Holding

The Plaintiff contributed equally to the purchase of the land and its development

Reasoning

The Plaintiff detailed financial contributions of USD 50,000, USD 10,000 and Kshs.588,730 towards developing the matrimonial home. Although she did not claim a direct financial contribution to the Tena Estate plot whose proceeds bought the suit land, both spouses were then in employment and she met home expenses and made non-financial contributions. The Defendant offered no defence, leaving her evidence unchallenged.

p. 3
03

Entitlement to the suit property on dissolution of marriage

Holding

The parties are equally entitled, at 50% each, and the Defendant holds his registered title as trustee for the Plaintiff

Reasoning

Applying Article 45(3) of the Constitution on equal rights of parties to a marriage and Section 7 of the Matrimonial Property Act on division according to contribution, the court found the Plaintiff established non-financial contribution during acquisition and later financial contribution of about Kshs.5,000,000 to develop the matrimonial home, entitling both spouses equally.

p. 4
04

Whether the value of the property could be ascertained for purposes of sharing

Holding

A professional valuation is required before final orders on sharing

Reasoning

No valuation report was availed to the court. The Plaintiff suggested a value in excess of Kshs.10,000,000, but the court held that a professional valuer should value the land both with and without the house to give a reliable figure for settling the parties' entitlements.

p. 3

Legal principles established

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  • A constructive trust can arise from the conduct of a party and the court may infer a common intention that the property was to be shared beneficially
  • The right to equality applies to marriages and property disputes even where the cause of action accrued before the Constitution 2010
  • Matrimonial property vests in spouses according to their contribution, financial and non-financial, and is divided on dissolution of the marriage

Court orders

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  1. 1.A declaration that land parcel Kakamega/Sergoit//[particulars withheld] and the home developed thereon are the matrimonial property and home respectively of both the Plaintiff and the Defendant
  2. 2.A declaration that the Defendant is registered as proprietor of the said land as Trustee for the Plaintiff
  3. 3.A declaration that the Plaintiff's and Defendant's interest on the said land and development thereon is equal at 50% each
  4. 4.A valuation exercise to be conducted, giving the value of the land parcel without the house and including the house
  5. 5.The valuation report to be filed in court within 30 days to enable the court make final orders on how to realise the sharing of the matrimonial property and home

Authorities

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Legislation

  • Matrimonial Property ActSections 6(3), 7, 9, 17(1)
  • Married Women's Property Act (1882)Section 17
  • Constitution of Kenya 2010Articles 45(3), 45(d), 68

Cases cited (2)

  • Agnes Najalla William -V- Jacob Pettrus Nicolas Vander Goes
    C.A.C.A No. 127 of 2011
  • N.W.K -V- J.K.M & Another
    [2013] eKLR
Jurisdiction invoked
Section 17 of the Matrimonial Property Act 2013 / Article 45 of the Constitution of Kenya 2010

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, "C A O v J O [2016] KEELC 702 (KLR)", Case Analysis (2016). Originating Summons dated 23rd October 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/702/eng@2016-07-13

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