Maloiy v Maloiy & 5 others

d. An order directing the defendants to pay the costs of this suit. e. Any other relief that the court may deem just to grant. 2. The plainti’s case is as follows. She is the wife of the 1st defendant. She is the only legal wife of the 1st defendant. Until 27/8/2019, the 1st defendant was the registered owner of L.R. No. Ngong/ Township/Block/121, suit property, which was acquired during her marriage to the 1st defendant. Secondly, on 27/8/2019, without notice, consent or permission of the plainti, the 1st defendant sold and transferred the suit property to the 2nd defendant. Thirdly, the 1st defendant did not share the proceeds of the sale of the suit property with the plainti. Fifthly, in May 2019, it is the plainti who paid large sums of money to the Government as rates for the suit property from her own personal resources when she was informed that the 1st defendant had refused to pay the said rates. Sixthly, in the year 1988 the plainti secured a loan from Barclays Bank of Kenya on the security of the suit property and failed to repay the loan. The plainti single handedly repaid the loan in full. Finally, this is not the only matrimonial property that the plainti has sold without the knowledge, permission or consent of the plainti. He previously sold property in Gilgil and Nyali in Mombasa in circumstances similar to the ones in this case. For the above and other reasons, she prays for the orders as per paragraph (1) above. 3. In support of her case, the plainti led the following evidence. 4. i. Her witness statement dated 2/10/2019. ii. Copy of certicate of lease for the suit land. iii. Copy of certicate of marriage dated 2/1/2004. iv. Copy of certicate of ocial search dated 11/9/2019. v. Copy of loan agreement dated 22/6/1998. vi. Copy of citation on conferment of degree. vii. Copy of intention to sue the 1st and 2nd defendants. viii. Copy of intention to sue the 3rd and 5th defendants. ix. Copy of invoice for rent and land rates dated 1/7/2019. x. Copy of plaintis notice to Chief Land Registrar dated 27/9/2019. xi. Copy of 4th defendant’s response to the notice dated 27/9/2019. xii. Copy of decree in Miscellaneous No. 19 of 2019 at Kajiado. xiii. Copy of letter requesting for certied copies of transfer document dated 25/11/2019. The rst defendant led a written statement of defence dated 11/6/2021 through his counsel on record. In the defence he generally denies the plainti’s claim in its entirety. Secondly he avers that the plainti is his estranged wife and the couple have not lived together since the year 2001 and that marriage has broken down irretrievably. Thirdly, he acquired the suit land in the year 1972 when it was known as Ngong Town 4480/12 and it is therefore not matrimonial property since their marriage was on 25/11/1989. Fourthly, he acquired the suit property alone without any contribution from the plainti. Fifthly, he has been paying the land rates and rent without any assistance from the plainti. Finally, he concludes by saying that he has no intentions of disposing his ancestral land where the plainti currently resides. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13979/eng@2024-12-19 2

page 2 of 4

For the above reasons, he prays for the dismissal of the plainti’s suit. 5. 6. In support of his case, the 1st defendant led the following evidence. i. Copy of receipt no. 155388 dated 23/3/2010 showing payment of rates to the County Council of Olkejuado. ii. Copy of letter dated 21/8/2019 showing the rent and rates arrears. The 2nd defendant, through counsel on record led a written statement of defence dated 29/1/2020 in which she avers as follows. Firstly, she denies the plainti’s claim in its totality. Secondly, it is contended by the 2nd defendant that the sale agreement between her and the plainti complied with the law. Thirdly, she complied with the sale agreement between her and the plainti and cannot therefore be faulted. For the above stated reasons, she prays for the dismissal of the plainti’s suit. 7. In support of her defence, the 2nd defendant led the following evidence. i. Her witness statement dated 25/5/2021. ii. Copy of sale agreement between her and the 1st defendant dated 7/8/2019. iii. Copy of statutory declaration dated 2/8/2019 by the 1st defendant in which he says he is not married. iv. Copy of transfer form dated 26/8/2019. 8. The 3rd – 6th defendant in a written statement of defence dated 14/1/2020 aver as follows. Firstly, all the allegations in the plaint are denied. Secondly, the transfer of the suit property was done procedurally and with the consent of all the relevant parties. Finally, the matters pleaded by the plainti do not touch on the 3rd to 6th defendant and the suit ought to be dismissed with costs. No evidence was led by the 3rd to 6th defendants in support of their defence. 9. At the trial on 15/11/2021 and 24/4/2023, only the plainti and the second defendant testied. They generally adopted their evidence as per their pleadings. None of them would change their script despite the intense cross-examination. 10. Counsel for the parties led written submissions on 10/4/2024 and 27/5/2024 if what they told the court on 15/4/2024 is anything to go by. The only submissions on the CTS are those by the plainti. The issues identied in the submissions dated 15/5/2024 are as follows. i. Whether the plainti has proved the suit land is matrimonial property. ii. Whether the sale of the suit land is tainted with fraud and illegalities. The 2nd defendant’s written submissions cannot be traced on record. 11. I have carefully considered all the evidence adduced in this case by both sides including the witness statements, documents and the testimony of the witnesses at the trial. I nd that there are only two issues to be determined in this case. They include the following. i. Whether the plainti has proved that she contributed to the acquisition of the suit property. ii. Whether the suit property is matrimonial property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13979/eng@2024-12-19 3

page 3 of 4

12. On the rst issue, I nd tht the plainti has not proved that she contributed to the acquisition of the suit property. The 1st defendant in his defence said that he acquired the suit land in 1972 and married the plainti in 1989. It was incumbent upon the plainti to controvert this averment by ling a reply to defence and adducing evidence to prove that the suit property was acquired during the pendency of their marriage. She did not do so. There is evidence from the plainti’s own documents, in this case the marriage certicate, to prove that the marriage between her and the 1st defendant was no 25/11/1989. If it is true that the suit plot was acquired in 1972, and it is quite probable, in the absence of concrete evidence by the plainti to the contrary, then there is no proof that she contributed to the acquisition of the suit property. The burden of proof on her remains undischarged. 13. On the second issue, I nd that the suit property is not matrimonial property. Under Section 2 of the Matrimonial Property Act, “matrimonial home means any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home and includes any other attached property”. Then under Section 6(1) of the same Act, matrimonial property means the following. a. The Matrimonial home or homes, b. Household goods and eects in the matrimonial home; or c. Any other immovable and movable property jointly owned and acquired during the subsistence of the marriage. The plainti has not adduced any evidence to prove that she occupies the suit property. No photographs or other evidence showing her occupation of the suit land was led. It is not even alleged anywhere in the pleadings that the plainti occupies the suit property. The rst defendant averred that the plainti occupies ancestral land and he has no intentions of disposing of the ancestral land. The plainti did not rebut this averment by the 1st defendant. It would therefore seem that the plainti occupies another property of the 1st defendant. If that is the case, and it could probably be, then that is the matrimonial home and property within the meaning of Sections 2 and 6 of the Matrimonial Property Act (Act No. 49 of 2013). 14. The plainti’s counsel also raised the issue of fraud in the written submissions. In the plaint, there is no mention of the word fraud in any of the paragraphs. Under Order 2 rule 10 Civil Procedure Rules, a party pleading fraud must particularize it in the pleadings. In this case fraud was brought up abruptly. Since it did not arise even in the evidence, I think I should not dwell much on it. After all, where fraud is pleaded, it must be proved to a standard higher than the ordinary one in civil cases of proof on a balance of probabilities. See Ndolo –versus- Ndolo Civil Appeal No. 128 of 1995. 15. For the above stated reasons, I nd no merit in the plainti’s suit which I dismiss in its entirety. As for the costs, since the main actors in this case are husband and wife even though divorced or separated and it is admitted that the plainti is living on the 1st defendant’s property, I will order that each party bears its own costs. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 19TH OF DECEMBER 2024. M.N. GICHERU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13979/eng@2024-12-19 4

page 4 of 4