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ELCPartially AllowedCivil Suit No 8 of 2015· [2018] KEELC 1920 (KLR)

K H v M M [2018] KEELC 1920 (KLR)

Environment and Land Court
20 September 2018
CYC. Yano
3,921 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a woman who neither married the buyer nor paid for the land gets no share, and her name must be removed from the register.

What this practically means

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Executive summary

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The plaintiff, an Austrian pensioner, sued seeking a declaration of sole ownership of land at Section III Mainland North, expungement of the defendant's name from the register, a permanent injunction, damages, interest and costs. He pleaded that the parties agreed in a 2009 sale agreement to buy the property for Kshs.9,000,000 and share the price equally, but the defendant claimed she lacked funds, inducing him to pay the entire purchase price on her promise to refund her half, which she never did. The defendant, by amended defence and counter-claim, asserted that the parties were husband and wife under Kamba customary law, that the property was bought jointly as matrimonial property, and sought a declaration for sale and equal sharing. The court framed four issues: marriage, matrimonial property/sharing, injunction and damages, and costs. It held that no marriage was proved: the cohabitation was short, no dowry payment or ceremony was proved, no expert in Kamba customs or eyewitnesses testified, and the photographs of the Shimba Hills visit showed no ceremony. No presumption of marriage arose, so the property was not matrimonial property. Relying on section 7 of the Matrimonial Property Act, 2013 and P.N.N v ZWN, the court held that even if it were, sharing would follow contribution; the defendant admitted contributing nothing and could not 'harvest where she has not sown'. Damages were refused as unpleaded and unproved. Judgment was entered for the plaintiff on prayers (a), (b) and (c) of the plaint; the counter-claim was dismissed; and each party was ordered to bear their own costs. Delivered at Mombasa on 20th September 2018 by C. Yano, Judge.

Key legal issues

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01

Whether a customary marriage existed between the parties

Holding

No marriage was proved; there was no long cohabitation, no proved dowry payment, no ceremony proved, and no witnesses called, so no presumption of marriage arose

Reasoning

The parties met in 2008 and stayed together only briefly. The photographs of the Shimba Hills visit showed nothing amounting to a ceremony; no expert in Kamba customs testified; no dowry payment was proved; and no relatives or attendees were called. The relationship was therefore a friendship that may have included a sexual relationship, not a marriage.

p. 4
02

Whether the suit property was matrimonial property to be shared equally

Holding

Not matrimonial property; and even if it were, it would be divided according to contribution. The defendant admitted contributing nothing, so she is entitled to no share

Reasoning

Since no marriage was proved, no matrimonial property could arise. Further, section 7 of the Matrimonial Property Act, 2013 vests ownership according to contribution, as affirmed in P.N.N v ZWN. The defendant admitted she did not contribute to the purchase price, so equal sharing had no basis.

p. 4
03

Whether the plaintiff's claim for damages succeeds

Holding

Damages refused because the injury was neither pleaded nor proved

Reasoning

Although the plaintiff proved exclusive ownership, no evidence or pleading demonstrated any loss warranting general damages; the head of relief was accordingly not granted.

p. 4

Legal principles established

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  • Before a presumption of marriage can arise, a party must establish long cohabitation and acts of general repute
  • Matrimonial property is owned by spouses according to their contribution towards its acquisition and is divided accordingly upon dissolution
  • A person who makes no contribution to the acquisition of property is not entitled to a share in it

Court orders

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  1. 1.Declaration that the suit property belongs to the plaintiff exclusively (prayer (a) of the plaint)
  2. 2.Order that the defendant's name be expunged from the entries in the lands office (prayer (b) of the plaint)
  3. 3.Permanent injunction restraining the defendant from entering, claiming or interfering with the plaintiff's possession of the suit property (prayer (c) of the plaint)
  4. 4.Dismissal of the defendant's counter-claim
  5. 5.Each party to bear their own costs

Authorities

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Legislation

  • Marriage ActSection 3(1); Section 96
  • Constitution of KenyaArticle 45(2)
  • Matrimonial Property ActSection 7

Cases cited (9)

  • Kimani –v- Gikanga
    (1965) EA 735
  • Anna Munini & Another –v- Margaret Nzambi
    (1984) eKLR
  • Hortensiah Wanjiku Yawe –v- The Public Trustee
    Civil Appeal No.13 of 1976
  • Mwagiru –v- Mumbi
    (1967) EA 639
  • N.L.S –v- B.R. P
    (2016) eKLR
  • Benjamin Ayiro Shiraku –v- Fozia Mohamed
    (2012) eKLR
  • Titus Muiruri Doge –v- Kenya Canners Ltd
    (1988) KLR
  • Phyllis Njoki Karanja & 2 Others –v- Rosemary Mueni Karanja & Another
    (2009) eKLR
  • P.N.N –v- ZWN
    (2017) eKLR
Jurisdiction invoked
Original civil suit; jurisdiction not expressly invoked in the judgment

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, "K H v M M [2018] KEELC 1920 (KLR)", Case Analysis (2018). Civil Suit No 8 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1920/eng@2018-09-20

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