Introduction
1. Vide an originating summons dated 13th April 2022, the claimant seeks the following orders:-
(1) That an order does issue declaring that the applicant is entitled to 50% or such higher proportion as this Court may determine of Plot No 21A located in Ikutha, Kitui County which property was acquired by the applicant in the year 2013 and jointly registered in the name of the applicant and the respondents;
(2) That an order does issue declaring that the applicant is entitled to 50%, or such higher proportion as this Court may determine, of property described as Subdivision No 16534 (Original No 15545/68) Section I MN (CR No. 44617) located in Bamburi/Utange within Mombasa County which property was acquired by the applicant and jointly registered in the name of the applicant and the respondent;
(3) That this Court do issue an order requiring the respondent to furnish the financial records in respect to the hair salon that the applicant opened in Mombasa and once the income is ascertained, there be an order that the same be equally shared by the parties;
(4) That this honourable Court be pleased to make such further orders as the interests of justice may require; and
(5) That the respondent be condemned to pay costs of this application and incidentals thereto.
2. The originating summons is supported by the supporting affidavit of the claimant sworn in Nairobi on 13th April 2022 in which it was averred that the claimant and the respondent got married on 20th July 2000 in California, USA. The marriage certificate however indicates that they got married on 9th April 2022 at Bahari Beach Hotel, Mombasa in a marriage officiated by Tom Ogweno, Marriage Registrar. The marriage was blessed with one issue Nathaniel Rafalczyk. He averred that during the subsistence of the marriage the couple acquired Plot No 21A located in Ikutha, Kitui County and Subdivision No 16534 (Original No 15545/68) Section I MN (CR No. 44617) located in Bamburi/Utange within Mombasa County.
3. The claimant averred that the funds with which the properties were purchased came solely from him as the respondent had no income as she was unemployed.
4. Mr. Rafalczyk averred that he opened a business for the respondent, which she ran down. He stated that the money he sent her was used to open several bank accounts. He sought to have the Court order that the bank statement for the said accounts be provided by the respondent.
5. The claimant stated that when they relocated to Germany, their marriage collapsed. He filed for divorce, which was granted on 17th December 2019.
6. The claim was opposed by the respondent. She filed a replying affidavit sworn on 19th October 2023 vide which she stated that the claimant in Job Centre Proceedings of 6th January 2017 denied owning any property in Kenya.
7. In particular, he averred that Plot No 21A located in Ikutha, was an agricultural land which belonged to her exclusively. She averred that the claimant being a foreigner couldn’t own agricultural land.
8. She stated Subdivision No 16534 (Original No 15545/68) Section I MN (CR No. 44617) located in Bamburi/Utange within Mombasa County belonged to her exclusively as the claimant had given up his claim to it as attested by the Jib Centre proceedings.
9. Ms Mula averred that she had funds of her own prior to getting married. She denied that the claimant gave her any money. She further denied there was any basis for the court to order her to provide the statements of her bank accounts. Regarding photographs of her ATM cards, the respondent urged that they were obtained unlawfully, irregularly and illegally
10. The respondent averred that the claimant had not provided copies of titles, evidence of contribution, and proof that he gave her money to start a business.
11. The claimant filed a further affidavit sworn on 15th November 2023 in which he responded that the respondent had not provided proof of contribution of the acquisition of the matrimonial property in dispute. He deposed that as a foreigner he could own land in Kenya and that he improved the plot at Ikutha by building toilets thereat so that it could fetch higher rental income. The rent was being collected and not accounted for by the respondent.
12. He reiterated that he solely acquired the plot at Utange. He denied relinquishing his interest in the said property at any time. He claimed to have erected the perimeter wall and the gate. He stated that he had supported the respondent during the time they were married and that it was he who facilitated her move to Germany, where she now resides.
The Oral Evidence of the Parties
13. The matter proceeds by way of oral evidence. I shall set out the evidence of the witness below.
14. The matter was heard on 9th July 2024. Both the Claimant and the respondent testified.
15. The claimant testified that he bought the land in Ikutha on his own and sent her the money to buy the land at Utange through Western Union. He testified that the titles for the two properties bore their joint names. He denied that the respondent had the capacity to contribute. It was his evidence that he met Ms Mula in 2009 when she was working as a masseuse in a massage parlour situated near the beach. He, on the other hand, worked as a quality controller at SKF, an engineering firm, and he retired from the employment of the said firm on 1st October 2023.
16. When cross-examined by the counsel for the respondent, the claimant stated that he wanted to be granted both properties absolutely but that it was up to the Court to determine the exact share. He reiterated that he gave the respondent money to set up a salon as he was uncomfortable with her work in a massage parlour. Regarding the Ikutha property, it was his evidence that the same was acquired after the person the respondent loaned money defaulted.
17. During reexamination, he stated that the Kes.10,000.00 the respondent earned was only sufficient for her and could not have allowed her anything more to invest.
18. The respondent, on her part, testified that she was a resident of Germany. testified that he met the claimant on 29th December 2009 at the Reef Hotel, where she ran a massage parlour with her partner. After courtship, she got married to him on 11th April 2011.
19. It was her evidence that she loaned Ms. Mary Komu money, which she could not repay. It was at that point that she took the land. She testified that the claimant's name was included after he promised to contribute.
20. She further testified that the Utange property was jointly owned. She denied that the claimant contributed everything. He accused the claimant of having tried to have her deported from Germany on account of alleged wealth in Kenya. It was her evidence that she owed the German authorities a substantial amount of money.
21. Regarding subdivision of the properties, the respondent testified that both properties should be divided equally on a 50:50 basis.
22. During cross-examination, Ms Mula stated that she had her own money before the marriage. She reiterated that the property in Ikutha was transferred to them after the person she had lent Kes.921,000.00 defaulted. Her evidence was that the Utange property was purchased for Kes.2,300,000.00, which she insisted she contributed. When asked for documentation, she stated that they were in Kenya. She testified that after the purchase of the property, she was the one who supervised the construction, maintained the properties, paid land rent and rate and was in charge of them to date.
Submissions of the Parties
23. Upon the conclusion of the hearing, parties were directed by the court to file written submissions. The submissions of the claimants are dated 30th October 2024.
24. The claimant’s counsel submitted that in cases of division of matrimonial property, claimants have to prove:-
1. Valid, legal, regular marriage;
2. Dissolution of the marriage;
3. That properties listed were matrimonial properties; and
4. The contribution by each party.
25. Counsel for the claimant submitted that there was evidence that the parties were married to each other, the marriage had been dissolved, and that the two properties were acquired during coverture. Counsel submitted that the only issue calling for determination was the contribution by each party. Based on what he said was the contribution of the Claimant, he prayed that he be awarded 80% of the two properties. This was founded on what he said was his sole contribution to the acquisition of the property and the development/improvement thereon.
26. Counsel submitted that the respondent was vague about her income as she did not provide proof of her finances.
27. The claimant submitted that during the course of the marriage, the Claimant was in Germany while the respondent was in Kenya. This meant that she provided little in the form of companionship.
28. The claimant’s counsel relied on the following cases of TKM vs SMW [2020]eKLR, MNH vs FHM [2018]eKLR, EGM vs BMM [2020]EKLR and MEK vs GLM [2018]eKLR.
29. The submissions of the respondent are dated 1st November 2024. In the aid submissions, the respondent’s counsel averred that there was only one matrimonial property, that in Utange. She urged that the property in Ikutha solely belonged to the respondent on account of the fact that she procured it from the previous owner after she defaulted in repaying the loan that she had granted her. The property was held in leasehold terms and hadn’t been transferred.
30. Counsel for the respondent urged that her client run a successful massage parlour and sold souvenirs to local and foreign tourists. She submitted that the debit cards the claimant produced proved that she had a saving culture.
31. Counsel for the respondent averred that the funds for the purchase of the Utange property came from her client. She stated that the claimant provided no proof of remittance.
32. It was urged that the respondent take out a loan of Euros 11,458/74 in Germany to get an apartment on the strength of her half share of the Utange property.
33. On sharing of the property, it was urged that it be done on a 50:50 basis.
Application of the Law to the Facts of the Case
34. I have considered the parties' pleadings, the evidence adduced, and the submissions filed. In my view, the issues in this matter are the following:-
1. Whether the suit properties are matrimonial properties;
2. If so, what contribution was made by each party;
3. What share should each party get; and
4. Who should pay the costs of the originating summons.
Whether the two properties are matrimonial properties?
35. Section 6(1) of the Matrimonial Properties Act defines “matrimonial property” as being:-
“(1) For the purposes of this Act, matrimonial property means—
(a) the matrimonial home or homes;
(b) household goods and effects in the matrimonial home or homes; or
(c) any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.”
36. It is evident that the parties were married on 9th April 2011 in Kenya. They are now divorced. It is common ground that the two properties were acquired during the subsistence of the marriage. Although no registered evidence of titles was produced, save for sale transaction documents, it was in a somewhat grudging way conceded by both parties that the suit properties bore the parties' names. It is also evident that the parties intended to develop the Utange property by constructing their home on it.
37. Based on the evidence adduced, it is my view, and I find and hold that the two properties are matrimonial properties as they are jointly owned and were acquired during the subsistence of the marriage.
What Contribution was made by Each of the Parties?
38. To determine this issue, I must first set out some salient constitutional and statutory provisions.
39. Article 45(3) of the Constitution of Kenya, 2010 states that:-
“(3) Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.”
40. Section 7 of the Act provides that:-
“Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”
41. The mere fact that a property is matrimonial does not mean that it is owned by the spouses equally.
42. Section 14(a) of the said Act provides that:
“Where matrimonial property is acquired during marriage—
(a) in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse; and
(b) in the names of the spouses jointly, there shall be a rebuttable presumption that their beneficial interests in the matrimonial property are equal.”
43. Having set out what I consider to be applicable statutory provisions, it is important to state that the mere fact that a property was acquired during coverture does not give a spouse an automatic entitlement to a 50% share. A spouse must still prove contribution, for it is what one brought in that he/she takes away at the time of the dissolution of the marriage.
44. The foregoing was eloquently stated by Kiage, JA of the Court of Appeal in PNN vs ZWN [2017] eKLR as follows:-
“Thus it is that the Constitution, thankfully, does not say equal rights ‘including half of the property.’ And it is no accident that when Parliament enacted the Matrimonial Property Act, 2013, it knew better than to simply declare that property shall be shared on a 50-50 basis. Rather it set out in elaborate manner the principle that division of matrimonial property between spouses shall be based on their respective contribution to acquisition.”
45. The claimant testified that he was employed by SKF, a well-known German engineering company. According to his evidence, he worked as a quality controller with SKF and retired on 1st April 2023. Given his employment, it is the view of this Court that he would have had the means to contribute to the acquisition of the matrimonial properties. The foregoing notwithstanding, no evidence of remittance was provided.
46. The respondent, on the other hand, worked as a masseuse and sold souvenirs. Although it was submitted that she earned Kes.100,000.00 monthly, no evidence of such income was provided. The Court, however, notes that in the Claimant’s bundle, it was shown that she had several bank accounts. This demonstrates that the respondent wasn’t a lady of straw and most likely had an income and savings.
47. Section 2 of the Matrimonial properties Act defines contribution as being:-
“contribution” means monetary and non-monetary contribution and includes—
(a) domestic work and management of the matrimonial home;
(b) child care;
(c) companionship;
(d) management of family business or property; and
(e) farm work”
48. The respondent was married to the claimant for 6 years. They had a child together whose primary caregiver is the respondent. Even if assuming she made no monetary contribution, child rearing, taking care of the home while the claimant was in Germany and companionship whenever he was around would surely amount to something.
49. I note, too, that the respondent has been caring for and maintaining the two properties to date. If for nothing else, she deserves credit for this.
50. The principles used by the courts in determining the division of matrimonial property were settled by the Supreme Court in the case of Joseph Ombogi Ogentoto Vs Martha Bosibori Ogentoto [2023]eKLR, where it was stated inter alia as follows:-
“In the event that a marriage breaks down, the function of any court is to make a fair and equitable division of the acquired matrimonial property guided by the provisions of Article 45(3) of the Constitution. To hold that Article 45(3) has the meaning of declaring that property should be automatically shared at the ratio of 50:50 would bring huge difficulties within marriages and Tuiyott, J (as he then was) has explained why above. Noting the changing times and the norms in our society now, such a finding would encourage some parties to only enter into marriages, comfortably subsist in the marriage without making any monetary or non- monetary contribution, proceed to have the marriage dissolved then wait to be automatically given 50% of the marital property. That could not have been the intention of our law on the subject.”
51. It is usually difficult for couples in most relationships to keep records of their specific contribution. Establishing what each party contributed is, therefore, not something that is amenable, in most instances, to mathematical exactitude. I am therefore in agreement with the holding in ENK vs JNK [2015]eKLR that:-
“When parties get into marriage, they usually intend the arrangement to be for life. Divorce is not in their minds. This is the position regardless of the system of law under which the parties contract the marriage. Indeed, that is the conception of marriage in Hyde vs Hyde and Woodmanse (1866) 1 LRIP & D 1230. The parties to the marriage thereafter live their lives according to the concept of permanence of their marriage. This then creates the presumption that whatever property is acquired must have been intended to be for the benefit of the family.”
52. Since neither party provided tangible evidence of contribution, I am inclined to find and hold that both parties made equal contributions in line with the equitable maxim that equality is equity.
What Share Should Each Party Get?
53. It settled the law that upon dissolution of a marriage, property is divided based on contribution. Having found that there was equal contribution, there should be an equal benefit.
54. In the circumstance, I find and hold that the parties are entitled to the two matrimonial properties on a 50:50 basis.
55. In the originating summons, the claimant sought a 50% share of the properties. He appears to have changed his mind subsequently, hence the submissions that he should get 80% of the same. The claimant is bound by his pleadings and cannot resile from them.
56. Regarding the provisions of accounts statements of the accounts held by the respondent, I am afraid that no justification for the said action has been provided. The claimant did not adduce evidence of the alleged remittances. Secondly, the photographs of the alleged ATM cards would appear to have been acquired unprocedurally.
57. Given the relationship between the parties, it isn’t feasible for the two properties to be shared. In my view, the same should be sold so that the proceeds can be shared.
Who Should Pay the Costs of the Summons?
58. As this is a dispute between former spouses, I do not think that an award of costs would be most appropriate.
Final Orders
59. The orders that commend themselves to me are:-
1. I find and hold that Subdivision No 16534 (Original No 15545/68) Section I MN (CR No. 44617) and Plot No 21A, located in Ikutha, Kitui County, are matrimonial properties;
2. I declare that the Claimant and the Respondent have 50% interest each in the said matrimonial properties;
3. I order that the Subdivision No 16534 (Original No 15545/68) Section I MN (CR No. 44617) and Plot No 21A located in Ikutha, Kitui County, be valued within 60 days of the date hereof by the Government Valuer, Mombasa and Kitui and sold within 30 days thereafter by public auction. The proceeds thereof shall be divided equally between the Claimant and the Respondent.
60. Orders accordingly.
Dated and signed at Mombasa this 11th day of April 2025. Delivered virtually through Microsoft TEAMS.
1. Vide an originating summons dated 13th April 2022, the claimant seeks the following orders:-
(1) That an order does issue declaring that the applicant is entitled to 50% or such higher proportion as this Court may determine of Plot No 21A located in Ikutha, Kitui County which property was acquired by the applicant in the year 2013 and jointly registered in the name of the applicant and the respondents;
(2) That an order does issue declaring that the applicant is entitled to 50%, or such higher proportion as this Court may determine, of property described as Subdivision No 16534 (Original No 15545/68) Section I MN (CR No. 44617) located in Bamburi/Utange within Mombasa County which property was acquired by the applicant and jointly registered in the name of the applicant and the respondent;
(3) That this Court do issue an order requiring the respondent to furnish the financial records in respect to the hair salon that the applicant opened in Mombasa and once the income is ascertained, there be an order that the same be equally shared by the parties;
(4) That this honourable Court be pleased to make such further orders as the interests of justice may require; and
(5) That the respondent be condemned to pay costs of this application and incidentals thereto.
2. The originating summons is supported by the supporting affidavit of the claimant sworn in Nairobi on 13th April 2022 in which it was averred that the claimant and the respondent got married on 20th July 2000 in California, USA. The marriage certificate however indicates that they got married on 9th April 2022 at Bahari Beach Hotel, Mombasa in a marriage officiated by Tom Ogweno, Marriage Registrar. The marriage was blessed with one issue Nathaniel Rafalczyk. He averred that during the subsistence of the marriage the couple acquired Plot No 21A located in Ikutha, Kitui County and Subdivision No 16534 (Original No 15545/68) Section I MN (CR No. 44617) located in Bamburi/Utange within Mombasa County.
3. The claimant averred that the funds with which the properties were purchased came solely from him as the respondent had no income as she was unemployed.
4. Mr. Rafalczyk averred that he opened a business for the respondent, which she ran down. He stated that the money he sent her was used to open several bank accounts. He sought to have the Court order that the bank statement for the said accounts be provided by the respondent.
5. The claimant stated that when they relocated to Germany, their marriage collapsed. He filed for divorce, which was granted on 17th December 2019.
6. The claim was opposed by the respondent. She filed a replying affidavit sworn on 19th October 2023 vide which she stated that the claimant in Job Centre Proceedings of 6th January 2017 denied owning any property in Kenya.
7. In particular, he averred that Plot No 21A located in Ikutha, was an agricultural land which belonged to her exclusively. She averred that the claimant being a foreigner couldn’t own agricultural land.
8. She stated Subdivision No 16534 (Original No 15545/68) Section I MN (CR No. 44617) located in Bamburi/Utange within Mombasa County belonged to her exclusively as the claimant had given up his claim to it as attested by the Jib Centre proceedings.
9. Ms Mula averred that she had funds of her own prior to getting married. She denied that the claimant gave her any money. She further denied there was any basis for the court to order her to provide the statements of her bank accounts. Regarding photographs of her ATM cards, the respondent urged that they were obtained unlawfully, irregularly and illegally
10. The respondent averred that the claimant had not provided copies of titles, evidence of contribution, and proof that he gave her money to start a business.
11. The claimant filed a further affidavit sworn on 15th November 2023 in which he responded that the respondent had not provided proof of contribution of the acquisition of the matrimonial property in dispute. He deposed that as a foreigner he could own land in Kenya and that he improved the plot at Ikutha by building toilets thereat so that it could fetch higher rental income. The rent was being collected and not accounted for by the respondent.
12. He reiterated that he solely acquired the plot at Utange. He denied relinquishing his interest in the said property at any time. He claimed to have erected the perimeter wall and the gate. He stated that he had supported the respondent during the time they were married and that it was he who facilitated her move to Germany, where she now resides.
The Oral Evidence of the Parties
13. The matter proceeds by way of oral evidence. I shall set out the evidence of the witness below.
14. The matter was heard on 9th July 2024. Both the Claimant and the respondent testified.
15. The claimant testified that he bought the land in Ikutha on his own and sent her the money to buy the land at Utange through Western Union. He testified that the titles for the two properties bore their joint names. He denied that the respondent had the capacity to contribute. It was his evidence that he met Ms Mula in 2009 when she was working as a masseuse in a massage parlour situated near the beach. He, on the other hand, worked as a quality controller at SKF, an engineering firm, and he retired from the employment of the said firm on 1st October 2023.
16. When cross-examined by the counsel for the respondent, the claimant stated that he wanted to be granted both properties absolutely but that it was up to the Court to determine the exact share. He reiterated that he gave the respondent money to set up a salon as he was uncomfortable with her work in a massage parlour. Regarding the Ikutha property, it was his evidence that the same was acquired after the person the respondent loaned money defaulted.
17. During reexamination, he stated that the Kes.10,000.00 the respondent earned was only sufficient for her and could not have allowed her anything more to invest.
18. The respondent, on her part, testified that she was a resident of Germany. testified that he met the claimant on 29th December 2009 at the Reef Hotel, where she ran a massage parlour with her partner. After courtship, she got married to him on 11th April 2011.
19. It was her evidence that she loaned Ms. Mary Komu money, which she could not repay. It was at that point that she took the land. She testified that the claimant's name was included after he promised to contribute.
20. She further testified that the Utange property was jointly owned. She denied that the claimant contributed everything. He accused the claimant of having tried to have her deported from Germany on account of alleged wealth in Kenya. It was her evidence that she owed the German authorities a substantial amount of money.
21. Regarding subdivision of the properties, the respondent testified that both properties should be divided equally on a 50:50 basis.
22. During cross-examination, Ms Mula stated that she had her own money before the marriage. She reiterated that the property in Ikutha was transferred to them after the person she had lent Kes.921,000.00 defaulted. Her evidence was that the Utange property was purchased for Kes.2,300,000.00, which she insisted she contributed. When asked for documentation, she stated that they were in Kenya. She testified that after the purchase of the property, she was the one who supervised the construction, maintained the properties, paid land rent and rate and was in charge of them to date.
Submissions of the Parties
23. Upon the conclusion of the hearing, parties were directed by the court to file written submissions. The submissions of the claimants are dated 30th October 2024.
24. The claimant’s counsel submitted that in cases of division of matrimonial property, claimants have to prove:-
1. Valid, legal, regular marriage;
2. Dissolution of the marriage;
3. That properties listed were matrimonial properties; and
4. The contribution by each party.
25. Counsel for the claimant submitted that there was evidence that the parties were married to each other, the marriage had been dissolved, and that the two properties were acquired during coverture. Counsel submitted that the only issue calling for determination was the contribution by each party. Based on what he said was the contribution of the Claimant, he prayed that he be awarded 80% of the two properties. This was founded on what he said was his sole contribution to the acquisition of the property and the development/improvement thereon.
26. Counsel submitted that the respondent was vague about her income as she did not provide proof of her finances.
27. The claimant submitted that during the course of the marriage, the Claimant was in Germany while the respondent was in Kenya. This meant that she provided little in the form of companionship.
28. The claimant’s counsel relied on the following cases of TKM vs SMW [2020]eKLR, MNH vs FHM [2018]eKLR, EGM vs BMM [2020]EKLR and MEK vs GLM [2018]eKLR.
29. The submissions of the respondent are dated 1st November 2024. In the aid submissions, the respondent’s counsel averred that there was only one matrimonial property, that in Utange. She urged that the property in Ikutha solely belonged to the respondent on account of the fact that she procured it from the previous owner after she defaulted in repaying the loan that she had granted her. The property was held in leasehold terms and hadn’t been transferred.
30. Counsel for the respondent urged that her client run a successful massage parlour and sold souvenirs to local and foreign tourists. She submitted that the debit cards the claimant produced proved that she had a saving culture.
31. Counsel for the respondent averred that the funds for the purchase of the Utange property came from her client. She stated that the claimant provided no proof of remittance.
32. It was urged that the respondent take out a loan of Euros 11,458/74 in Germany to get an apartment on the strength of her half share of the Utange property.
33. On sharing of the property, it was urged that it be done on a 50:50 basis.
Application of the Law to the Facts of the Case
34. I have considered the parties' pleadings, the evidence adduced, and the submissions filed. In my view, the issues in this matter are the following:-
1. Whether the suit properties are matrimonial properties;
2. If so, what contribution was made by each party;
3. What share should each party get; and
4. Who should pay the costs of the originating summons.
Whether the two properties are matrimonial properties?
35. Section 6(1) of the Matrimonial Properties Act defines “matrimonial property” as being:-
“(1) For the purposes of this Act, matrimonial property means—
(a) the matrimonial home or homes;
(b) household goods and effects in the matrimonial home or homes; or
(c) any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.”
36. It is evident that the parties were married on 9th April 2011 in Kenya. They are now divorced. It is common ground that the two properties were acquired during the subsistence of the marriage. Although no registered evidence of titles was produced, save for sale transaction documents, it was in a somewhat grudging way conceded by both parties that the suit properties bore the parties' names. It is also evident that the parties intended to develop the Utange property by constructing their home on it.
37. Based on the evidence adduced, it is my view, and I find and hold that the two properties are matrimonial properties as they are jointly owned and were acquired during the subsistence of the marriage.
What Contribution was made by Each of the Parties?
38. To determine this issue, I must first set out some salient constitutional and statutory provisions.
39. Article 45(3) of the Constitution of Kenya, 2010 states that:-
“(3) Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.”
40. Section 7 of the Act provides that:-
“Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”
41. The mere fact that a property is matrimonial does not mean that it is owned by the spouses equally.
42. Section 14(a) of the said Act provides that:
“Where matrimonial property is acquired during marriage—
(a) in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse; and
(b) in the names of the spouses jointly, there shall be a rebuttable presumption that their beneficial interests in the matrimonial property are equal.”
43. Having set out what I consider to be applicable statutory provisions, it is important to state that the mere fact that a property was acquired during coverture does not give a spouse an automatic entitlement to a 50% share. A spouse must still prove contribution, for it is what one brought in that he/she takes away at the time of the dissolution of the marriage.
44. The foregoing was eloquently stated by Kiage, JA of the Court of Appeal in PNN vs ZWN [2017] eKLR as follows:-
“Thus it is that the Constitution, thankfully, does not say equal rights ‘including half of the property.’ And it is no accident that when Parliament enacted the Matrimonial Property Act, 2013, it knew better than to simply declare that property shall be shared on a 50-50 basis. Rather it set out in elaborate manner the principle that division of matrimonial property between spouses shall be based on their respective contribution to acquisition.”
45. The claimant testified that he was employed by SKF, a well-known German engineering company. According to his evidence, he worked as a quality controller with SKF and retired on 1st April 2023. Given his employment, it is the view of this Court that he would have had the means to contribute to the acquisition of the matrimonial properties. The foregoing notwithstanding, no evidence of remittance was provided.
46. The respondent, on the other hand, worked as a masseuse and sold souvenirs. Although it was submitted that she earned Kes.100,000.00 monthly, no evidence of such income was provided. The Court, however, notes that in the Claimant’s bundle, it was shown that she had several bank accounts. This demonstrates that the respondent wasn’t a lady of straw and most likely had an income and savings.
47. Section 2 of the Matrimonial properties Act defines contribution as being:-
“contribution” means monetary and non-monetary contribution and includes—
(a) domestic work and management of the matrimonial home;
(b) child care;
(c) companionship;
(d) management of family business or property; and
(e) farm work”
48. The respondent was married to the claimant for 6 years. They had a child together whose primary caregiver is the respondent. Even if assuming she made no monetary contribution, child rearing, taking care of the home while the claimant was in Germany and companionship whenever he was around would surely amount to something.
49. I note, too, that the respondent has been caring for and maintaining the two properties to date. If for nothing else, she deserves credit for this.
50. The principles used by the courts in determining the division of matrimonial property were settled by the Supreme Court in the case of Joseph Ombogi Ogentoto Vs Martha Bosibori Ogentoto [2023]eKLR, where it was stated inter alia as follows:-
“In the event that a marriage breaks down, the function of any court is to make a fair and equitable division of the acquired matrimonial property guided by the provisions of Article 45(3) of the Constitution. To hold that Article 45(3) has the meaning of declaring that property should be automatically shared at the ratio of 50:50 would bring huge difficulties within marriages and Tuiyott, J (as he then was) has explained why above. Noting the changing times and the norms in our society now, such a finding would encourage some parties to only enter into marriages, comfortably subsist in the marriage without making any monetary or non- monetary contribution, proceed to have the marriage dissolved then wait to be automatically given 50% of the marital property. That could not have been the intention of our law on the subject.”
51. It is usually difficult for couples in most relationships to keep records of their specific contribution. Establishing what each party contributed is, therefore, not something that is amenable, in most instances, to mathematical exactitude. I am therefore in agreement with the holding in ENK vs JNK [2015]eKLR that:-
“When parties get into marriage, they usually intend the arrangement to be for life. Divorce is not in their minds. This is the position regardless of the system of law under which the parties contract the marriage. Indeed, that is the conception of marriage in Hyde vs Hyde and Woodmanse (1866) 1 LRIP & D 1230. The parties to the marriage thereafter live their lives according to the concept of permanence of their marriage. This then creates the presumption that whatever property is acquired must have been intended to be for the benefit of the family.”
52. Since neither party provided tangible evidence of contribution, I am inclined to find and hold that both parties made equal contributions in line with the equitable maxim that equality is equity.
What Share Should Each Party Get?
53. It settled the law that upon dissolution of a marriage, property is divided based on contribution. Having found that there was equal contribution, there should be an equal benefit.
54. In the circumstance, I find and hold that the parties are entitled to the two matrimonial properties on a 50:50 basis.
55. In the originating summons, the claimant sought a 50% share of the properties. He appears to have changed his mind subsequently, hence the submissions that he should get 80% of the same. The claimant is bound by his pleadings and cannot resile from them.
56. Regarding the provisions of accounts statements of the accounts held by the respondent, I am afraid that no justification for the said action has been provided. The claimant did not adduce evidence of the alleged remittances. Secondly, the photographs of the alleged ATM cards would appear to have been acquired unprocedurally.
57. Given the relationship between the parties, it isn’t feasible for the two properties to be shared. In my view, the same should be sold so that the proceeds can be shared.
Who Should Pay the Costs of the Summons?
58. As this is a dispute between former spouses, I do not think that an award of costs would be most appropriate.
Final Orders
59. The orders that commend themselves to me are:-
1. I find and hold that Subdivision No 16534 (Original No 15545/68) Section I MN (CR No. 44617) and Plot No 21A, located in Ikutha, Kitui County, are matrimonial properties;
2. I declare that the Claimant and the Respondent have 50% interest each in the said matrimonial properties;
3. I order that the Subdivision No 16534 (Original No 15545/68) Section I MN (CR No. 44617) and Plot No 21A located in Ikutha, Kitui County, be valued within 60 days of the date hereof by the Government Valuer, Mombasa and Kitui and sold within 30 days thereafter by public auction. The proceeds thereof shall be divided equally between the Claimant and the Respondent.
60. Orders accordingly.
Dated and signed at Mombasa this 11th day of April 2025. Delivered virtually through Microsoft TEAMS.