Introduction
1. The Claimant and the Respondent got married on 13th February 1998 at the Registrar’s office in Nairobi under the Marriage Act (now repealed). Their union was blessed with two issues, both of whom are now adults. The marriage subsequently broke down and was dissolved.
2. During coverture, the Claimant and the Respondent jointly acquired several properties, of which the properties in Nairobi and Diani, Kwale County, are relevant to these proceedings. By Originating Summons dated 24th April 2025, the Claimant seeks to have the said properties in Nairobi and Diani declared as matrimonial properties and to be divided equally between them.
The Originating Summons Dated 24th April 2025
3. The Claimant contends that he contributed directly and indirectly to the purchase of the said properties. The properties as identified by the Claimant are
1. A 4-bedroom house situated in Runda Park, Nairobi;
2. A four-bedroom oceanfront house at Galu Beach, Tamani area, in Diani, Kwale County;
3. An apartment situated in Berlin, Germany; and
4. A house in Spain.
He averred that the house in Spain was sold and is no longer available. The Respondent resides in the house in Berlin, Germany.
4. In his Originating Summons, the Claimant proposed that the Nairobi and Diani houses be shared, with the Respondent having the first choice as to which house she should take.
The Response of the Respondent
5. The Originating Summons is opposed. The Respondent filed a Replying Affidavit in which she contended that the properties were jointly acquired through loans paid for through a joint account in both their names. Ms Swoboda accused the Claimant of having engaged in an affair.
6. In respect of the specific prayers sought by the Claimant, the Respondent averred that she had no problem with the two properties being declared as the matrimonial properties. She, however, stated that only the Runda property was available for distribution, as in her view, the Diani House, being owned by a limited liability company, was unavailable for distribution by the Family Court. This latter contention was the subject of a preliminary objection that was dismissed by the Court on 28th October 2025.
The Evidence Adduced by the Parties
7. The Summons was heard on 27th November 2025 and 2nd March 2026 when the Claimant and the Respondent testified and were cross-examined. As the pleadings show, the parties agree on most issues in this matter. It was evident during the hearing and in the parties’ submissions that the sole issue that this Court should determine is whether the Diani property was available for distribution by this Court and, flowing from it, how the properties should then be shared.
Submissions of the Claimant
8. In submissions dated 11th March 2026, the Claimant's counsel identified 3 issues for determination. These are whether the two properties constitute matrimonial property, whether the two parties have equal interests, and what is the most practical way of sharing the suit properties.
9. In regard to the first two issues, the Claimant responded in the affirmative. In respect of the last issue, his counsel proposed firstly that the Respondent be given the option of choosing which of the two properties to take. In the alternative, it was proposed that the Claimant could transfer his 50% share in the Diani property to the Respondent, while the Respondent would then transfer full ownership of the Runda property to him.
Submissions of the Respondent
10. On the other hand, in the submissions dated 19th March 2026, the Respondent identified issues for determination as being:
1. Whether the suit properties are matrimonial property;
2. Whether the suit properties are owned in equal shares by the parties;
3. Whether this Honourable Court has jurisdiction to adjudicate the property dispute between the parties;
4. Whether the Claimant should be compelled to hand over the Respondent’s Longines watch; and
5. Whether the Claimant should be compelled to seek a separate Netflix account for him and his new family.
11. In the said submissions, the Respondent’s counsel conceded that the properties the subject of the suit are matrimonial properties and that they are owned by the parties in equal shares.
12. Regarding the 3rd issue, the Respondent’s counsel proposed that the Runda house be sold and the proceeds shared equally between the parties. Under this proposal, the sale would take place in 2027, after the current lease expired, and, in the meantime, she be permitted to continue collecting rent. She indicated that she would be willing to share the rent proceeds if the Claimant was under any financial strain.
13. It was contended that the property in Diani was held under a company’s name. Relying on the case of NGV v CNV also known as CHM [2022] KEHC 16645 (KLR), AKK v PKW [2020] KECA 335 (KLR) and Minnie Waithera Mbue v John Peter Mbue Nairobi HCCC No. 43 of 2009 (OS) it was urged that the Family Court could not divide property held in the name of a limited liability company.
Analysis and Determination
14. I have considered the Originating Summons, the response thereto and the oral and Written Submissions of the parties. As earlier stated the sole issue for this Court to determine is how the matrimonial properties ought to be divided between the Claimant and Respondent.
15. The Court states that issues 4 and 5 in the Respondent’s list of issues cannot be decided by this Court because they were not pleaded. Parties are bound by their pleadings. Accordingly, this Court will disregard the submissions regarding the Longines watch and the Netflix account.
16. This Court notes that 2 properties are in contention in this Originating Summons; that is to say, the Runda house currently let to a foreign embassy and the beach house in Diani, Kwale County. The parties agree that they acquired these properties during coverture and that they are matrimonial property. They do not agree on how to divide them. Each party has a proposal on what should happen. Given the agreement, it isn’t necessary for this Court to enter into a deep analysis of what constitutes matrimonial property and whether both parties contributed to their acquisition.
17. In PNN v ZWN [2017] KECA 753 (KLR), the Court held that the objective of matrimonial property proceedings is to achieve a fair and practical distribution that allows former spouses to move on with their lives after divorce.
18. Similarly, the Supreme Court in MNK v POM & another [2023] KESC 2 (KLR) stated that the goal of matrimonial property proceedings is to bring finality to disputes between former spouses and prevent continuing conflict.
19. I am of the view, given the evidence adduced, that the relationship between the Claimant and the Respondent has irretrievably broken down. It is therefore impractical to expect the parties to share the property; the parties concede as much. This Court must therefore craft a distribution plan that preserves the value of the properties and respects the sentimental attachments the parties have.
20. Before I turn to the issue of distribution, I must address the elephant in the room: the Diani property is owned by a limited liability company. The Respondent has averred that, because the Diani property is owned by a company in which the Claimant and Respondent are shareholders, it should not be subject to distribution by this Court. In my view, this is incorrect. Although the house is owned by a company, the Claimant and the Respondent hold an equal number of shares in that company. In my view, the shares in that company are matrimonial property and can be distributed in matrimonial property proceedings.
21. In my view, limited liability companies may be used by couples as special-purpose vehicles to hold matrimonial property.
22. The High Court in MNK v MRM [2017]eKLR held that where a company may reasonably be called an alter ego of a spouse, and the property is used as a matrimonial home or was purchased using matrimonial funds, it may be subject to division under matrimonial property laws.
23. In GKW v RNK [2025] KECA 1475 (KLR), the Court of Appeal upheld the decision made by the High Court to allow the amendments of pleadings to include property held by a limited liability company as matrimonial property. The court held that:
“Having considered the ruling of the trial court and the submissions of the parties, we find no basis for interfering with the trial court’s exercise of discretion. The position of our law, as the authorities we have noted above and those relied on by the trial court illustrate, is that amendments may be allowed to bring before the court the real issue or controversy between the parties; that mere delay is not a sufficient basis for denying an application for amendment; and that limited liability companies, as was sought in this case, can be joined as parties in a suit relating to matrimonial properties between spouses- see Muthembwa v Muthembwa [2002] 1 EA 186; PWK v JKG [2015] eKLR and Lacheka Lubricants Ltd & Another v Chanandin & 4 Others [2023] KECA 1359. In this latter case, this Court stated:
“In PWK v JKG (supra) this Court …departed from the previous interpretation of Muthembwa v Muthembwa (supra) and the holding of the court in SNK v MNK (supra) that a trial court has no jurisdiction under section 17 of the MWP Act to distribute properties registered in the name of the company in which the spouses are the shareholders, due to the company’s separate legal personality. This is how the court reasoned: “With respect, we are not ourselves persuaded that Muthembwa v Muthembwa was to exactly that effect. Quite the opposite. The court there held, and we respectfully agree, that where the property of the company had been mixed with the matrimonial property, Section 17 allowed the court to deal with the parties’ respective interests in the company as injustice might otherwise result, which, to our way of thinking, is a repudiation, in appropriate cases, of the sometimes-unhelpful distinction between the parties as spouses as opposed to shareholders for purposes of section 17 proceedings. The Court in Muthembwa v Muthembwa found that section 17 of the MWPA did, in fact, allow a court to deal with the parties’ respective interests in a company in which they are shareholders. We agree with that court’s conclusion.”
24. What of the authorities cited by the Respondent’s counsel? In my view, the Court’s decision in NGV v CNV, also known as CHM [2022] KEHC 16645 (KLR), concerned the Company’s property or funds, not shares, and is therefore distinguishable to that extent. The Court’s decision in Minnie Waithera Mbue v John Peter Mbue, Nairobi HCCC No. 43 of 2009 (OS), was delivered by a Court of coordinate jurisdiction. With respect to Justice Kimaru, J (as he then was), I hold a different view. In my understanding of the law, couples can hold matrimonial property in the names of companies. Shares in such companies constitute matrimonial property, which the Family Court can distribute when considering the division of matrimonial property under the Matrimonial Property Act, 2013.
25. I do not think that the Court of Appeal’s decision in AKK v PKW [2020] KECA 335 (KLR) supports the case of the Respondent. The Court, in the said case, stated as follows:
“37. In our opinion, the trial court had jurisdiction to make declarations in so far as the interest in the property during the pendency of a marriage is concerned. The issues of distribution of the property would then only be determined upon dissolution of a marriage. In the case of Muthembwa vs. Muthembwa [2002] 1 KLR page 92, the court found:
“In assessing the contribution of spouses in acquisition of matrimonial property each case must be dealt with on the basis of its peculiar facts and circumstances but bearing in mind the principle of fairness. The jurisdiction of the court is to determine a question or questions between husband and wife principally as to title to or possession of property.
In the instant case, where matrimonial property is intertwined with company property the court cannot decline jurisdiction under Section 17 to deal with the whole property as this would be unjust. In application under Section 17 the court has wide and unfettered discretion to make such order or orders as justice may demand including sale distribution of property subject of the application.”
38. Having found that the trial court had the requisite jurisdiction to consider the appellant’s prayers under Section 17, we hold that the learned Judge erred in upholding the preliminary objection and concluding that the court did not have jurisdiction...”
26. The upshot of the foregoing is that I find and hold that the shares in the Diani property are matrimonial property which are liable to be distributed by the Family Court.
27. Having found as above, what orders should issue? The Respondent avers that only the Runda property should be sold, with the proceeds being divided equally. Even then, she seeks to have the sale stood over to 2027. With respect to her, this is oppressive. The property can be sold even with the present tenant in occupation. The mere fact that the tenant is an embassy does not change anything. To postpone the sale would be oppressive to the Claimant. The Respondent appears to be keen to benefit from the matrimonial property to the exclusion of the Claimant for as long as possible. The Respondent's proposal is therefore rejected.
28. I have carefully considered the parties' proposals. In my view, the Claimant's proposal is the most practical. He, very reasonably, proposes to give the Respondent the first choice. The Court adopts that proposal.
Final Orders
29. The orders that therefore commend themselves to me are:-
1. Declaration is hereby made that the Runda and Diani properties are matrimonial properties;
2. Declaration is hereby made that the said properties are owned jointly by the Claimant and the Respondent in equal shares;
3. The Respondent shall have the first choice of which one of the two properties to take. The choice must be made within 30 days of the date hereof;
4. If the Respondent does not make her choice within 30 days of the date hereof, the Claimant shall elect which of the two properties he will take within 30 days of the lapse of the period during which the Respondent was to make her choice;
5. Upon election by the Respondent or the Claimant, as the case may be, the parties will execute the transfer forms to give effect to the distribution. The execution of the transfers must be completed within 30 days of the date of the effective election; and
6. If any party fails or refuses to execute the transfers, then the Deputy Registrar of the High Court shall execute the transfers in place of the recalcitrant party.
7. As this is a dispute between former spouses, the Court will not issue an order as to costs; consequently, each party shall bear their own costs of the Originating Summons.
30. It is so ordered.
Dated and signed in Nairobi this 2nd day of September 2026.
1. The Claimant and the Respondent got married on 13th February 1998 at the Registrar’s office in Nairobi under the Marriage Act (now repealed). Their union was blessed with two issues, both of whom are now adults. The marriage subsequently broke down and was dissolved.
2. During coverture, the Claimant and the Respondent jointly acquired several properties, of which the properties in Nairobi and Diani, Kwale County, are relevant to these proceedings. By Originating Summons dated 24th April 2025, the Claimant seeks to have the said properties in Nairobi and Diani declared as matrimonial properties and to be divided equally between them.
The Originating Summons Dated 24th April 2025
3. The Claimant contends that he contributed directly and indirectly to the purchase of the said properties. The properties as identified by the Claimant are
1. A 4-bedroom house situated in Runda Park, Nairobi;
2. A four-bedroom oceanfront house at Galu Beach, Tamani area, in Diani, Kwale County;
3. An apartment situated in Berlin, Germany; and
4. A house in Spain.
He averred that the house in Spain was sold and is no longer available. The Respondent resides in the house in Berlin, Germany.
4. In his Originating Summons, the Claimant proposed that the Nairobi and Diani houses be shared, with the Respondent having the first choice as to which house she should take.
The Response of the Respondent
5. The Originating Summons is opposed. The Respondent filed a Replying Affidavit in which she contended that the properties were jointly acquired through loans paid for through a joint account in both their names. Ms Swoboda accused the Claimant of having engaged in an affair.
6. In respect of the specific prayers sought by the Claimant, the Respondent averred that she had no problem with the two properties being declared as the matrimonial properties. She, however, stated that only the Runda property was available for distribution, as in her view, the Diani House, being owned by a limited liability company, was unavailable for distribution by the Family Court. This latter contention was the subject of a preliminary objection that was dismissed by the Court on 28th October 2025.
The Evidence Adduced by the Parties
7. The Summons was heard on 27th November 2025 and 2nd March 2026 when the Claimant and the Respondent testified and were cross-examined. As the pleadings show, the parties agree on most issues in this matter. It was evident during the hearing and in the parties’ submissions that the sole issue that this Court should determine is whether the Diani property was available for distribution by this Court and, flowing from it, how the properties should then be shared.
Submissions of the Claimant
8. In submissions dated 11th March 2026, the Claimant's counsel identified 3 issues for determination. These are whether the two properties constitute matrimonial property, whether the two parties have equal interests, and what is the most practical way of sharing the suit properties.
9. In regard to the first two issues, the Claimant responded in the affirmative. In respect of the last issue, his counsel proposed firstly that the Respondent be given the option of choosing which of the two properties to take. In the alternative, it was proposed that the Claimant could transfer his 50% share in the Diani property to the Respondent, while the Respondent would then transfer full ownership of the Runda property to him.
Submissions of the Respondent
10. On the other hand, in the submissions dated 19th March 2026, the Respondent identified issues for determination as being:
1. Whether the suit properties are matrimonial property;
2. Whether the suit properties are owned in equal shares by the parties;
3. Whether this Honourable Court has jurisdiction to adjudicate the property dispute between the parties;
4. Whether the Claimant should be compelled to hand over the Respondent’s Longines watch; and
5. Whether the Claimant should be compelled to seek a separate Netflix account for him and his new family.
11. In the said submissions, the Respondent’s counsel conceded that the properties the subject of the suit are matrimonial properties and that they are owned by the parties in equal shares.
12. Regarding the 3rd issue, the Respondent’s counsel proposed that the Runda house be sold and the proceeds shared equally between the parties. Under this proposal, the sale would take place in 2027, after the current lease expired, and, in the meantime, she be permitted to continue collecting rent. She indicated that she would be willing to share the rent proceeds if the Claimant was under any financial strain.
13. It was contended that the property in Diani was held under a company’s name. Relying on the case of NGV v CNV also known as CHM [2022] KEHC 16645 (KLR), AKK v PKW [2020] KECA 335 (KLR) and Minnie Waithera Mbue v John Peter Mbue Nairobi HCCC No. 43 of 2009 (OS) it was urged that the Family Court could not divide property held in the name of a limited liability company.
Analysis and Determination
14. I have considered the Originating Summons, the response thereto and the oral and Written Submissions of the parties. As earlier stated the sole issue for this Court to determine is how the matrimonial properties ought to be divided between the Claimant and Respondent.
15. The Court states that issues 4 and 5 in the Respondent’s list of issues cannot be decided by this Court because they were not pleaded. Parties are bound by their pleadings. Accordingly, this Court will disregard the submissions regarding the Longines watch and the Netflix account.
16. This Court notes that 2 properties are in contention in this Originating Summons; that is to say, the Runda house currently let to a foreign embassy and the beach house in Diani, Kwale County. The parties agree that they acquired these properties during coverture and that they are matrimonial property. They do not agree on how to divide them. Each party has a proposal on what should happen. Given the agreement, it isn’t necessary for this Court to enter into a deep analysis of what constitutes matrimonial property and whether both parties contributed to their acquisition.
17. In PNN v ZWN [2017] KECA 753 (KLR), the Court held that the objective of matrimonial property proceedings is to achieve a fair and practical distribution that allows former spouses to move on with their lives after divorce.
18. Similarly, the Supreme Court in MNK v POM & another [2023] KESC 2 (KLR) stated that the goal of matrimonial property proceedings is to bring finality to disputes between former spouses and prevent continuing conflict.
19. I am of the view, given the evidence adduced, that the relationship between the Claimant and the Respondent has irretrievably broken down. It is therefore impractical to expect the parties to share the property; the parties concede as much. This Court must therefore craft a distribution plan that preserves the value of the properties and respects the sentimental attachments the parties have.
20. Before I turn to the issue of distribution, I must address the elephant in the room: the Diani property is owned by a limited liability company. The Respondent has averred that, because the Diani property is owned by a company in which the Claimant and Respondent are shareholders, it should not be subject to distribution by this Court. In my view, this is incorrect. Although the house is owned by a company, the Claimant and the Respondent hold an equal number of shares in that company. In my view, the shares in that company are matrimonial property and can be distributed in matrimonial property proceedings.
21. In my view, limited liability companies may be used by couples as special-purpose vehicles to hold matrimonial property.
22. The High Court in MNK v MRM [2017]eKLR held that where a company may reasonably be called an alter ego of a spouse, and the property is used as a matrimonial home or was purchased using matrimonial funds, it may be subject to division under matrimonial property laws.
23. In GKW v RNK [2025] KECA 1475 (KLR), the Court of Appeal upheld the decision made by the High Court to allow the amendments of pleadings to include property held by a limited liability company as matrimonial property. The court held that:
“Having considered the ruling of the trial court and the submissions of the parties, we find no basis for interfering with the trial court’s exercise of discretion. The position of our law, as the authorities we have noted above and those relied on by the trial court illustrate, is that amendments may be allowed to bring before the court the real issue or controversy between the parties; that mere delay is not a sufficient basis for denying an application for amendment; and that limited liability companies, as was sought in this case, can be joined as parties in a suit relating to matrimonial properties between spouses- see Muthembwa v Muthembwa [2002] 1 EA 186; PWK v JKG [2015] eKLR and Lacheka Lubricants Ltd & Another v Chanandin & 4 Others [2023] KECA 1359. In this latter case, this Court stated:
“In PWK v JKG (supra) this Court …departed from the previous interpretation of Muthembwa v Muthembwa (supra) and the holding of the court in SNK v MNK (supra) that a trial court has no jurisdiction under section 17 of the MWP Act to distribute properties registered in the name of the company in which the spouses are the shareholders, due to the company’s separate legal personality. This is how the court reasoned: “With respect, we are not ourselves persuaded that Muthembwa v Muthembwa was to exactly that effect. Quite the opposite. The court there held, and we respectfully agree, that where the property of the company had been mixed with the matrimonial property, Section 17 allowed the court to deal with the parties’ respective interests in the company as injustice might otherwise result, which, to our way of thinking, is a repudiation, in appropriate cases, of the sometimes-unhelpful distinction between the parties as spouses as opposed to shareholders for purposes of section 17 proceedings. The Court in Muthembwa v Muthembwa found that section 17 of the MWPA did, in fact, allow a court to deal with the parties’ respective interests in a company in which they are shareholders. We agree with that court’s conclusion.”
24. What of the authorities cited by the Respondent’s counsel? In my view, the Court’s decision in NGV v CNV, also known as CHM [2022] KEHC 16645 (KLR), concerned the Company’s property or funds, not shares, and is therefore distinguishable to that extent. The Court’s decision in Minnie Waithera Mbue v John Peter Mbue, Nairobi HCCC No. 43 of 2009 (OS), was delivered by a Court of coordinate jurisdiction. With respect to Justice Kimaru, J (as he then was), I hold a different view. In my understanding of the law, couples can hold matrimonial property in the names of companies. Shares in such companies constitute matrimonial property, which the Family Court can distribute when considering the division of matrimonial property under the Matrimonial Property Act, 2013.
25. I do not think that the Court of Appeal’s decision in AKK v PKW [2020] KECA 335 (KLR) supports the case of the Respondent. The Court, in the said case, stated as follows:
“37. In our opinion, the trial court had jurisdiction to make declarations in so far as the interest in the property during the pendency of a marriage is concerned. The issues of distribution of the property would then only be determined upon dissolution of a marriage. In the case of Muthembwa vs. Muthembwa [2002] 1 KLR page 92, the court found:
“In assessing the contribution of spouses in acquisition of matrimonial property each case must be dealt with on the basis of its peculiar facts and circumstances but bearing in mind the principle of fairness. The jurisdiction of the court is to determine a question or questions between husband and wife principally as to title to or possession of property.
In the instant case, where matrimonial property is intertwined with company property the court cannot decline jurisdiction under Section 17 to deal with the whole property as this would be unjust. In application under Section 17 the court has wide and unfettered discretion to make such order or orders as justice may demand including sale distribution of property subject of the application.”
38. Having found that the trial court had the requisite jurisdiction to consider the appellant’s prayers under Section 17, we hold that the learned Judge erred in upholding the preliminary objection and concluding that the court did not have jurisdiction...”
26. The upshot of the foregoing is that I find and hold that the shares in the Diani property are matrimonial property which are liable to be distributed by the Family Court.
27. Having found as above, what orders should issue? The Respondent avers that only the Runda property should be sold, with the proceeds being divided equally. Even then, she seeks to have the sale stood over to 2027. With respect to her, this is oppressive. The property can be sold even with the present tenant in occupation. The mere fact that the tenant is an embassy does not change anything. To postpone the sale would be oppressive to the Claimant. The Respondent appears to be keen to benefit from the matrimonial property to the exclusion of the Claimant for as long as possible. The Respondent's proposal is therefore rejected.
28. I have carefully considered the parties' proposals. In my view, the Claimant's proposal is the most practical. He, very reasonably, proposes to give the Respondent the first choice. The Court adopts that proposal.
Final Orders
29. The orders that therefore commend themselves to me are:-
1. Declaration is hereby made that the Runda and Diani properties are matrimonial properties;
2. Declaration is hereby made that the said properties are owned jointly by the Claimant and the Respondent in equal shares;
3. The Respondent shall have the first choice of which one of the two properties to take. The choice must be made within 30 days of the date hereof;
4. If the Respondent does not make her choice within 30 days of the date hereof, the Claimant shall elect which of the two properties he will take within 30 days of the lapse of the period during which the Respondent was to make her choice;
5. Upon election by the Respondent or the Claimant, as the case may be, the parties will execute the transfer forms to give effect to the distribution. The execution of the transfers must be completed within 30 days of the date of the effective election; and
6. If any party fails or refuses to execute the transfers, then the Deputy Registrar of the High Court shall execute the transfers in place of the recalcitrant party.
7. As this is a dispute between former spouses, the Court will not issue an order as to costs; consequently, each party shall bear their own costs of the Originating Summons.
30. It is so ordered.
Dated and signed in Nairobi this 2nd day of September 2026.