1. The Notice of Motion dated 21 st October 2025 is presented under sections 7,17,18 of the Matrimonial Property Act, Order 22, rule 6, 68 and 80 of the Civil Procedure Rules, rule 30, 31 of the Matrimonial Property rules, Section 1A and 3A of the Civil Procedure Act and Article 53 (e) of the Constitution of Kenya.
2. The applicant is seeking to realise the fruits of the judgment entered herein on 21 st May 2021 and subsequent consent between the parties dated 7 th April 2025 regarding the parties’ respective entitlement of NAIROBI/ BLOCK 110/252. It is her contention that the continued non-implementation of the judgment is to her detriment.
3. She therefore seeks the following orders-
a. Spent
b. THAT this Honourable Court direct that the Respondent vacates the property NAIROBI/ BLOCK 110/252 and that the same is rented out and rent shared equally between the parties pending sale subject to the receivable valuation.
c. THAT in the alternative, the Respondent do pay to the Applicant half the rent receivable due from August 2025 pending the sale of the said property.
d. THAT this Honourable Court be pleased to give timeframes for the sale of the matrimonial property NAIROBI/ BLOCK 110/252
e. THAT this Honourable Court be please to order the Respondent to accept any offer which matches the value as per the valuation report and proceed to sell the property NAIROBI/ BLOCK 110/252
f. THAT in the alternative, the Deputy Registrar be empowered to sign all documents relating to transfer of the property namely NAIROBI/ BLOCK 110/252 once the purchase has been completed.
g. THAT this Honourable Court be pleased to find that the Respondent has wilfully refused to obey and comply with the Court orders and the consent.
h. THAT the respondent be detained in civil jail for a period of 6 months or for such period as this Honourable Court shall deem necessary for disobedience of the Court Orders and Consent dated 3 rd April 2025.
4. The application is supported by the affidavit of the applicant sworn on 21 st October 2025. The respondent was notified of the judgment of 21 st May 2021. No appeal has been preferred against the judgment. In accordance with the judgment, with the respondent being non-responsive the applicant proceeded to nominate a valuer who submitted a report dated 31 st August 2021. Minimal progress has been made towards implementing the judgment. Most recently the parties have agreed on how to actualise the sale by consents dated 3 rd April 2025 and 7 th April 2025. One of the hindrances to the sale has been the continued occupation of the house by the respondent.
5. In her estimation the rental income for the house would be Kshs. 80000 per month. She claims a share of the rental income for the period that the respondent has been in occupation of the house.
6. The respondent attended Court on 11 th November 2025 and informed the Court that he would like the matter resolved amicably. Directions were given on the hearing of the application. He has not filed a response and submissions.
7. The applicant has filed submissions in respect of the application, her submissions are dated 6 th February 2026. She frames the issues for determination as-
a. Whether the Court should review the Orders issued and enforce the terms of the consent
b. Whether there is contempt on the part of the Respondent in relation to the Court order dated (sic)
8. On the 1 st issue, the applicant restates her averments in the supporting affidavit and submits that rules 30, 31 and 32 of the Matrimonial property rules provide the path to bring this matter to closure.
9. On the 2 nd issue, it is submitted that the respondent has not denied he is in contempt and relies on the decisions in Ringera & 2 Others v Muite & 10 Others Nairobi Civil Suit No. 1330 of 1991; Sheila Cassat Issenberg & Another v Anthony Machatha Kinyanjui [2021] eKLR; Muthika v Banahrin Farm Ltd (1985) KLR 229,234 .
ANALYSIS AND DETERMINATION
10. Having considered the pleadings filed herein alongside submissions filed and the relevant law, I frame the issues for determination to be
a. Whether the respondent is in Contempt of Court and in the event the answer is in the affirmative the appropriate sanction that the Court should impose?
b. What are the orders this Court should make so as to implement the judgment delivered herein on 21 st May 2021?
11. On the 1 st issue, contempt proceedings are initiated to assert the authority of the Court, when it is apparent that a party who is duly served with an order fails to comply with the same. In Republic v The Principal Secretary Ministry of Defence Ex Parte: George Kariuki Waithaka Misc Application No. 276 of 2015 the Court stated-
[28]. It must however be remembered that Court orders are not made in vain and are meant to be complied with. If for any reason a party has difficulty in complying with court orders the honourable thing to do is to come back to court and explain the difficulties faced by the need to comply with the order. Once a Court order is made in a suit the same is valid unless set aside on review or on appeal. In Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828 , Ibrahim, J (as he then was) stated:
“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our Courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a Court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void.
12. The applicant does not deny that he is aware of the judgment, indeed from the correspondence it is evident that he is intent on stretching out the matter to the maximum extent possible. He has not stood in the path of implementation but he has not assisted either. He is content with the status quo as he is comfortably having his cake and eating it. The order of the Court was self-executing and therefore the applicant has been able to have a valuation of the property done, she has been able to engage with prospective buyers, she alleges that possible sales have been hampered by the respondent’s occupation of the house.
13. Her resilience has borne fruit as there are subsequent consequent consents executed that vary the original judgment to provide timelines. The absence of timelines in the judgment as to the time which the sale ought to have been finalised coupled with the fact that the judgment was self-executing, compels me to withhold the whip and instead take an approach that eliminates the wiggle room that the applicant has enjoyed. He has acted under the mistaken impression that he has the latitude to set terms upon which he complies with the Court order. So, whereas I will not hold him in contempt I caution him against the nonchalant attitude towards Court Orders. For this reason, I have no hesitation in dismissing his plea that the matter be resolved amicably.
14. On the 2 nd issue, on orders that can be made to ensure the judgment is effected? The Court determined that the property namely NAIROBI/ BLOCK 110/252 was matrimonial property and that it be distributed to either party in the ratio of 50:50. Since the judgment the respondent has been in occupation of the house. The applicant on the other hand has stayed in a rented house. The respondent does not challenge the applicant’s assessment that the rental income for the house would be Kshs 80,000. The consent executed by the parties on 3 rd April 2025, subsequent to the judgment provide that-
a. The Defendant will put up a signage for sale within 2 days (5 th April 2025) from today, 3 rd April 2025 and that the plaintiff will bear the costs.
b. Both parties will get individual agents within 7 days (10 th April 2025) who will then communicate their terms to the advocate via 0721630025 or (email provided) will then review the terms with the parties.
c. That the agent fees shall be sold at a minimum price of Kshs 40 million shillings taking into account the property appreciation from the time of the valuation on 26 th August 2021.
d. The sale is urgent and the parties shall meet on 10 th June, 2025 at Mudaye & Co. Advocates, Maendeleo House 9 th Floor 903 which will be after 60 days to review the progress.
e. Accrued rates shall be apportioned as follows-
i. Pre-2012 to be apportioned 50:50 between the parties
ii. 2013 to when the property is sold to be borne by the Defendant
f. The defendant will share the Rates invoice from the Nairobi City County Government
g. If the property is not sold within 60 days, the Defendant shall move out by 30 th June 2025 and the property shall be let out and the rent shared equally less expenses by both parties.
h. Parties at liberty to apply for execution of the orders in the ruling dated 21 st May 2021 for division of matrimonial property delivered by Lady Justice Maureen A. Odero.
15. The respondent then proposed to vary the consent vide his letter dated 7 th April 2025 in which he proposed-
a. The applicant pay for the signage
b. The selling period be increased to 90 days
c. Accrued land rates to be apportioned as follows-
i. Pre-2022 to be apportioned 50:50 between the parties
ii. 2023 to when the property is sold to be borne by the Defendant
d. If the property is not sold within 90 days, the parties shall review or get a valuation of receivable rent and Defendant should have the option of either moving out of the property or being liable for 50 per cent of the rent receivable to the plaintiff
16. The applicant did not respond to the letter, at the time of making the application, the property has not been sold. The respondent is staying in the house. Outstanding rate arrears have been settled. The respondent is not paying the applicant 50 per cent of the rent receivable. The respondent has not moved to identify an agent. The only valuation report is that by Reliance Valuers dated 31 st August 2021.
17. The following are the orders that lend themselves to the above facts-
a. The parties shall proceed to sale the property NAIROBI/ BLOCK 110/252 (guided by the report by Reliance Valuers). The proceeds of sale will be deposited with Counsel for the applicant
b. The said sale to be finalised within 120 days. To facilitate the sale the respondent will vacate the house not later than 30 th March 2026.
c. The net proceeds shall be shared 50:50 between the parties.
d. The following sums shall be withheld from the respondent to the credit of the applicant
i. 50% of rental income (assessed at Kshs 80,000 per month) with effect from June 2021 to 30 th March 2026 or later date if the respondent does not leave the house
ii. Less 50 per cent of the valuers fee paid by the applicant.
iii. Outstanding land rate, utility bills and other statutory payments to be withheld by counsel of the applicant and paid to the respective agencies within 21 days of the receipt of the sale proceeds.
e. The respondent shall execute documents to facilitate transfer of the property within 14 days of delivery to him. In the event he fails or declines to execute the documents within the stipulated timelines the documents will be executed by the Deputy registrar, Family Division Milimani Law Courts.
18. On account of the relationship between the parties there shall be no order as to costs.
19. Parties are at liberty to exercise their right of appeal within 30 days
It is so ordered
Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 27 th day of February, 2026.
2. The applicant is seeking to realise the fruits of the judgment entered herein on 21 st May 2021 and subsequent consent between the parties dated 7 th April 2025 regarding the parties’ respective entitlement of NAIROBI/ BLOCK 110/252. It is her contention that the continued non-implementation of the judgment is to her detriment.
3. She therefore seeks the following orders-
a. Spent
b. THAT this Honourable Court direct that the Respondent vacates the property NAIROBI/ BLOCK 110/252 and that the same is rented out and rent shared equally between the parties pending sale subject to the receivable valuation.
c. THAT in the alternative, the Respondent do pay to the Applicant half the rent receivable due from August 2025 pending the sale of the said property.
d. THAT this Honourable Court be pleased to give timeframes for the sale of the matrimonial property NAIROBI/ BLOCK 110/252
e. THAT this Honourable Court be please to order the Respondent to accept any offer which matches the value as per the valuation report and proceed to sell the property NAIROBI/ BLOCK 110/252
f. THAT in the alternative, the Deputy Registrar be empowered to sign all documents relating to transfer of the property namely NAIROBI/ BLOCK 110/252 once the purchase has been completed.
g. THAT this Honourable Court be pleased to find that the Respondent has wilfully refused to obey and comply with the Court orders and the consent.
h. THAT the respondent be detained in civil jail for a period of 6 months or for such period as this Honourable Court shall deem necessary for disobedience of the Court Orders and Consent dated 3 rd April 2025.
4. The application is supported by the affidavit of the applicant sworn on 21 st October 2025. The respondent was notified of the judgment of 21 st May 2021. No appeal has been preferred against the judgment. In accordance with the judgment, with the respondent being non-responsive the applicant proceeded to nominate a valuer who submitted a report dated 31 st August 2021. Minimal progress has been made towards implementing the judgment. Most recently the parties have agreed on how to actualise the sale by consents dated 3 rd April 2025 and 7 th April 2025. One of the hindrances to the sale has been the continued occupation of the house by the respondent.
5. In her estimation the rental income for the house would be Kshs. 80000 per month. She claims a share of the rental income for the period that the respondent has been in occupation of the house.
6. The respondent attended Court on 11 th November 2025 and informed the Court that he would like the matter resolved amicably. Directions were given on the hearing of the application. He has not filed a response and submissions.
7. The applicant has filed submissions in respect of the application, her submissions are dated 6 th February 2026. She frames the issues for determination as-
a. Whether the Court should review the Orders issued and enforce the terms of the consent
b. Whether there is contempt on the part of the Respondent in relation to the Court order dated (sic)
8. On the 1 st issue, the applicant restates her averments in the supporting affidavit and submits that rules 30, 31 and 32 of the Matrimonial property rules provide the path to bring this matter to closure.
9. On the 2 nd issue, it is submitted that the respondent has not denied he is in contempt and relies on the decisions in Ringera & 2 Others v Muite & 10 Others Nairobi Civil Suit No. 1330 of 1991; Sheila Cassat Issenberg & Another v Anthony Machatha Kinyanjui [2021] eKLR; Muthika v Banahrin Farm Ltd (1985) KLR 229,234 .
ANALYSIS AND DETERMINATION
10. Having considered the pleadings filed herein alongside submissions filed and the relevant law, I frame the issues for determination to be
a. Whether the respondent is in Contempt of Court and in the event the answer is in the affirmative the appropriate sanction that the Court should impose?
b. What are the orders this Court should make so as to implement the judgment delivered herein on 21 st May 2021?
11. On the 1 st issue, contempt proceedings are initiated to assert the authority of the Court, when it is apparent that a party who is duly served with an order fails to comply with the same. In Republic v The Principal Secretary Ministry of Defence Ex Parte: George Kariuki Waithaka Misc Application No. 276 of 2015 the Court stated-
[28]. It must however be remembered that Court orders are not made in vain and are meant to be complied with. If for any reason a party has difficulty in complying with court orders the honourable thing to do is to come back to court and explain the difficulties faced by the need to comply with the order. Once a Court order is made in a suit the same is valid unless set aside on review or on appeal. In Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828 , Ibrahim, J (as he then was) stated:
“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our Courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a Court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void.
12. The applicant does not deny that he is aware of the judgment, indeed from the correspondence it is evident that he is intent on stretching out the matter to the maximum extent possible. He has not stood in the path of implementation but he has not assisted either. He is content with the status quo as he is comfortably having his cake and eating it. The order of the Court was self-executing and therefore the applicant has been able to have a valuation of the property done, she has been able to engage with prospective buyers, she alleges that possible sales have been hampered by the respondent’s occupation of the house.
13. Her resilience has borne fruit as there are subsequent consequent consents executed that vary the original judgment to provide timelines. The absence of timelines in the judgment as to the time which the sale ought to have been finalised coupled with the fact that the judgment was self-executing, compels me to withhold the whip and instead take an approach that eliminates the wiggle room that the applicant has enjoyed. He has acted under the mistaken impression that he has the latitude to set terms upon which he complies with the Court order. So, whereas I will not hold him in contempt I caution him against the nonchalant attitude towards Court Orders. For this reason, I have no hesitation in dismissing his plea that the matter be resolved amicably.
14. On the 2 nd issue, on orders that can be made to ensure the judgment is effected? The Court determined that the property namely NAIROBI/ BLOCK 110/252 was matrimonial property and that it be distributed to either party in the ratio of 50:50. Since the judgment the respondent has been in occupation of the house. The applicant on the other hand has stayed in a rented house. The respondent does not challenge the applicant’s assessment that the rental income for the house would be Kshs 80,000. The consent executed by the parties on 3 rd April 2025, subsequent to the judgment provide that-
a. The Defendant will put up a signage for sale within 2 days (5 th April 2025) from today, 3 rd April 2025 and that the plaintiff will bear the costs.
b. Both parties will get individual agents within 7 days (10 th April 2025) who will then communicate their terms to the advocate via 0721630025 or (email provided) will then review the terms with the parties.
c. That the agent fees shall be sold at a minimum price of Kshs 40 million shillings taking into account the property appreciation from the time of the valuation on 26 th August 2021.
d. The sale is urgent and the parties shall meet on 10 th June, 2025 at Mudaye & Co. Advocates, Maendeleo House 9 th Floor 903 which will be after 60 days to review the progress.
e. Accrued rates shall be apportioned as follows-
i. Pre-2012 to be apportioned 50:50 between the parties
ii. 2013 to when the property is sold to be borne by the Defendant
f. The defendant will share the Rates invoice from the Nairobi City County Government
g. If the property is not sold within 60 days, the Defendant shall move out by 30 th June 2025 and the property shall be let out and the rent shared equally less expenses by both parties.
h. Parties at liberty to apply for execution of the orders in the ruling dated 21 st May 2021 for division of matrimonial property delivered by Lady Justice Maureen A. Odero.
15. The respondent then proposed to vary the consent vide his letter dated 7 th April 2025 in which he proposed-
a. The applicant pay for the signage
b. The selling period be increased to 90 days
c. Accrued land rates to be apportioned as follows-
i. Pre-2022 to be apportioned 50:50 between the parties
ii. 2023 to when the property is sold to be borne by the Defendant
d. If the property is not sold within 90 days, the parties shall review or get a valuation of receivable rent and Defendant should have the option of either moving out of the property or being liable for 50 per cent of the rent receivable to the plaintiff
16. The applicant did not respond to the letter, at the time of making the application, the property has not been sold. The respondent is staying in the house. Outstanding rate arrears have been settled. The respondent is not paying the applicant 50 per cent of the rent receivable. The respondent has not moved to identify an agent. The only valuation report is that by Reliance Valuers dated 31 st August 2021.
17. The following are the orders that lend themselves to the above facts-
a. The parties shall proceed to sale the property NAIROBI/ BLOCK 110/252 (guided by the report by Reliance Valuers). The proceeds of sale will be deposited with Counsel for the applicant
b. The said sale to be finalised within 120 days. To facilitate the sale the respondent will vacate the house not later than 30 th March 2026.
c. The net proceeds shall be shared 50:50 between the parties.
d. The following sums shall be withheld from the respondent to the credit of the applicant
i. 50% of rental income (assessed at Kshs 80,000 per month) with effect from June 2021 to 30 th March 2026 or later date if the respondent does not leave the house
ii. Less 50 per cent of the valuers fee paid by the applicant.
iii. Outstanding land rate, utility bills and other statutory payments to be withheld by counsel of the applicant and paid to the respective agencies within 21 days of the receipt of the sale proceeds.
e. The respondent shall execute documents to facilitate transfer of the property within 14 days of delivery to him. In the event he fails or declines to execute the documents within the stipulated timelines the documents will be executed by the Deputy registrar, Family Division Milimani Law Courts.
18. On account of the relationship between the parties there shall be no order as to costs.
19. Parties are at liberty to exercise their right of appeal within 30 days
It is so ordered
Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 27 th day of February, 2026.