1. This Judgment is in respect of the appeal against the Judgment and decree of Hon. Habib Salam Vumbi, Senior Principal Kadhi, dated 19th October 2023 in Kadhi’s Court Divorce Cause No. E130 of 2022.
2. Vide the Memorandum of Appeal dated 2nd November 2023, the Appellant, who was the Petitioner in the Kadhi’s Court, raised the following material grounds of appeal:
(a) The learned trial Kadhi erred in law and fact in considering irrelevant matters without proof, which led to a miscarriage of justice.
(b) The learned trial Kadhi erred in law and fact in declaring the house at Kadzandani erected on plot no. 259 Section I MN- Bamburi as matrimonial property despite overwhelming contrary evidence.
(c) The learned trial Kadhi erred in law and fact in failing to find that there was no contribution in respect of plot no. 259 Section I MN, Bamburi and 2 double plots at Bombolulu Estate.
(d) The learned trial Kadhi erred in law and fact in failing to conduct a pre-trial conference contrary to Rule 47 of the Kadhi’s Court (Procedure and Practice) Rules.
(e) The learned trial Kadhi erred in law and fact in exceeding jurisdiction by making pronouncements on matters of the custody of the children.
Pleadings
3. The Appellant instituted proceedings vide the Petition dated 25th May 2022 at the Kadhi’s Court in Mombasa. By the said Petition, the Appellant sought reliefs inter alia that:
(a) The marriage be dissolved, and the Petitioner be issued with a divorce certificate.
(b) The Respondent be condemned to bear the costs.
4. It was the case of the Appellant that she was married to the Respondent on 11th May 2012 and the marriage was blessed with two issues aged 8 and 5 years respectively.
5. It was also posited by the Appellant that the Respondent was guilty of cruelty and desertion and had served the Appellant with talaq on 12th May 2021 but declined to formally dissolve the marriage.
6. The Respondent entered appearance and filed his answer to the Petition and cross-petition dated 25th July 2022. It was pleaded that the Appellant did not oppose the divorce.
7. It was the stated case of the Respondent that during the marriage he had solely acquired a house at Kadzandani erected on Plot No. 259, Section I, MN-Bamburi, which is a 4-flat house where the Appellant stayed with the children, and regarded the same as the matrimonial home, as well as 2 double plots at Bombolulu Estate in Mombasa.
8. It was further the case of the Respondent that he worked in Juba and could send money to the Appellant’s bank accounts that he opened for her for the purpose of acquiring several properties.
9. It was further the case of the Respondent that the Kadzandani property yielded rent that the Appellant never disclosed to the Respondent.
10. The Respondent sought the following reliefs:
a) A declaration that the Respondent solely contributed to the acquisition of the properties and the Appellant is not entitled thereto.
b) An order for the Appellant to forthwith vacate the matrimonial house.
c) An order against the Appellant to cease and desist from collecting rent.
d) An order for the Appellant to pay the Respondent Kes. 1,500,000/-.
e) An order for the Appellant to hand over the child Hassan.
11. In her answer to the cross-petition, the Appellant averred in material as follows:
a) The properties in Bombolulu and Bamburi belonged to her, and her parents and the Appellant had no share or claim therefrom.
b) The Appellant never sent any monies to the Respondent.
12. The trial Kadhi considered the dispute and rendered the judgment dated 19.10.202 by which it was determined and decreed as follows:
a) The house at Kadzandani Area plot no. 259 section II MN (Lakeview Estate) phase 6 in Bamburi, which is a four-flat house, and the two plots of Bombolulu Estate, Mombasa County, are matrimonial property of the parties.
b) The Petitioner is entitled to a 20% share of the matrimonial property, whereas the Respondent owns 80%.
c) The Petitioner do vacate the house at Kadzandani within 60 days
d) The Petitioner do stop collecting rent from the house at Kadzandani.
e) The parties to appoint an agent for collecting rent at the Kadzandani property.
f) The actual and physical custody of the children to be vested in the Petitioner and the Respondent to have reasonable access.
g) The Respondent is directed to make monthly payments of Ksh. 30,000/= for the upkeep of the minors.
h) The Respondent to provide alternative shelter for the minors with their mother
i) The Respondent has an obligation for the education and medication of the children.
13. Aggrieved, the Appellant lodged this Appeal.
Evidence
14. It would appear that on 23rd January 2023, the court conducted a pre-trial conference in which the Appellant and the Respondent herein appeared. The court then granted the parties leave to file further documents and affidavits and set a mention date for 30th January 2023 to confirm compliance.
15. The court subsequently proceeded to render the impugned judgment though the record does not show that the oral testimonies of the parties were taken as per the affidavits and documents relied upon in support of their respective cases.
Submissions
The Appellant’s Submissions
16. The Appellant filed submissions dated 8th October 2024.
17. It was submitted in relation to grounds 1,2,3 and 4 of the memorandum of appeal that the Honorable Kadhi erred in law and in fact in finding for the Respondent with regard to declaring the house at Kadzandani erected on Plot No. 259 section I MN - Bamburi as matrimonial property despite overwhelming evidence produced by the Appellant, and in failing to find that there was no contribution on the part of the Respondent in respect to Plot No. 259 section I MN - Bamburi and 2 double plots at Bombolulu estate- Mombasa.
18. She relied on Sections 6 and 14 of the Matrimonial Property Act, 2013 as follows:
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. 2. Despite subsection (1), trust property, including property held in trust under customary law, does not form part of matrimonial property. 3. Despite subsection (1), the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights. 4. A party to an agreement made under subsection (3) may apply to the Court to set aside the agreement and the Court may set aside the agreement if it determines that the agreement was influenced by fraud, coercion or is manifestly unjust.
19. Further reliance was placed on Section 9 of the Matrimonial Property Act as follows:
“Where one spouse acquires property before or during the marriage and the property acquired during the marriage does not become matrimonial property, but the other spouse makes a contribution towards the improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made.”
20. Based on the above sections of the law, it was submitted that that there was no evidence to show that the properties in bamburi and Bombolulu are matrimonial properties and that the Respondent contributed towards their acquisition or improvement. Thus, the said properties cannot be said to be matrimonial properties. The Matrimonial Property Act Section 2 defines "contribution" to mean 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.
21. Reliance was placed on the case of Njoroge v Ngari [1985] KLR, 480, where the court held that if a matrimonial property is being held in the name of one person, even if that property is registered in the name of that one person but the other spouse made contribution towards its acquisition, then each spouse has proprietary interests in that property.
22. The Appellant also cited Falconer v Falconer [1970] 3 All ER where Justices of Appeal held that: ‘‘And the principles applicable to whether a matrimonial home standing in the name of the husband belonged to them both jointly (in equal or unequal shares) were that the law imputed to the husband and the wife an intention to create a trust for each other by way of inference from their conduct and the surrounding circumstances; an inference of trust would be readily drawn when each had made a substantial financial contribution to the contribution was stated to be such or indirectly as where both parties went out to work and one paid the housekeeping and the other paid the mortgage instruments; but whether the parties held in equal shares would depend on their respective contributions.
23. It was further submitted while anchoring grounds 6 and 7 that the learned Kadhi erred in law and in fact in delving into matters which were outside his jurisdiction, in making a determination pertaining the custody of the children, and in delivering an ambiguous Judgment based on evidence provided by the Respondent, which Judgment is unenforceable on the face of it.
24. Reliance placed on Article 170(5) of the Constitution which provides: “The jurisdiction of a Kadhi’s Court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts”
25. Further reliance was placed on section 5 of the Kadhi’s Courts Act as follows; A Kadhis court shall have and exercise the following jurisdiction, namely the Determination of questions of Muslim law relating to personal status, marriage, divorce Or inheritance in proceedings in which all the parties profess the Muslim religion; but Nothing in this section shall limit the Jurisdiction of the High Court or of any subordinate Court in any proceeding which comes before it.
The Respondent’s Submissions
26. The Respondent filed submissions dated 23.10.2024. It was submitted in relation to grounds 1 to 5 that division of matrimonial property must be based on the parties' contributions. The Respondent cited section 7 of the Matrimonial Property Act. He cited the case of EMK V SSS (2020)e KLR to submit that each spouse is entitled to his property and also relied on the Supreme Court Decision in JOO v MBO (2023)e KLR to submit that a spouse could not acquire an interest in matrimonial property by virtue of being married only.
27. The Respondent submitted that the Appellant never produced any proof of her contribution as required under section 108 of the Evidence Act.
28. It was further submitted that the 20% share awarded by the Kadhi’s court was a fair share of the indirect contribution of the Appellant. Reliance was placed on MNH v FHM (2018)e KLR.
29. On jurisdiction, while advancing grounds 6 and 7, it was submitted that the Kadhi had jurisdiction on children matters under Article 170(5) of the Constitution. Reliance was also placed, inter alia, on TSJ v SHSR (2019)e KLR and AYM v HIK (2023)e KLR.
30. It was further submitted in relation to grounds 8 and 9 that the judgment of the Kadhi was not ambiguous and was enforceable.
Analysis and determination
31. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first-hand.
32. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
33. The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the law looks in their usual gusto, held by as follows;-
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
34. The Court is to bear in mind that it had neither seen nor heard the witnesses. The trial court observed the demeanour and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as in the lower court, as parties cannot read into those documents matters extrinsic to them.
35. Further, in the case of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
36. The issues before me for determination are as follows:
a) Whether the Kadhi’s court had jurisdiction to declare custody and maintenance of the children.
b) Whether the court erred in its finding on matrimonial property rights of the parties.
37. On the preliminary issue as to whether the Kadhi’s Court had jurisdiction to hear and determine children matters, my view is that it does.
38. On the issue of jurisdiction, it was stated in the case Owners of Motor Vessel “Lillian S” –vs- Caltex Oil (K) Ltd [1989] KLR 1 that:
“Jurisdiction is everything. Without it a Court has no power to take one more step, where a Court has no jurisdiction there would be no basis for a continuation of proceedings pending the evidence. A Court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”
Further in n Samuel Kamau Macharia & another –vs- Kenya Commercial Bank Ltd & 2 others [2012] eKLR, the Supreme Court of Kenya rendered itself in part;“…a court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law…”
39. The Kadhis Court is a creature of the Constitution ( Article 169 of the 2010 Constitution. The jurisdiction of the Kadhi’s Court is specifically defined under Article 170(5) of the Constitution and Section 5 of the Kadhi’s Court Act as-
“determination of questions of Muslim Law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s Court.”
40. Thus, the jurisdiction of the Kadhi's Court is determined by the existence of three factors:
(i) the subject matter of the claim or dispute;
(ii)the party’s Muslim faith; and
(iii)the party’s submission to the jurisdiction of the Kadhis Court.
41. The case of Republic v Kadhis Court Nairobi & 2 others Ex- parte T L [2018] eKLR the court stated as follows:
3.In the instant case, all the parties are Muslims and profess the Islamic faith. The exparte applicant and the interested party were married under the Islamic law. Their marriage seems to be on the verge of collapse and there is a dispute as to whether custody and guardianship of the child, issue of their marriage is a question of Muslim law of personal status within the meaning of Article 170 (5) of the Constitution and section 5 of the Kadhis Courts Act; or is an issue that falls within the jurisdiction of the Children’s courts established under the Children’s Act,2001.
194.In my humble view, there is no dispute that courts which are specialized in Islamic law in other jurisdictions have the jurisdiction to hear and determine disputes relating to custody, guardianship and control of children. There is also no dispute that from a plethora of useful persuasive authorities and scholarly articles from journals and elsewhere relied on by the 1st respondent, in countries where Islam is the state religion, the applicable law to Muslims is Sharia law and therefore there is no way a dispute such as the one before us would be handled in a different court than a religious court.
42. I am persuaded that the Kadhi’s court has jurisdiction to deal with children's matters. Having so found, by the time the impugned judgment was delivered, there was a matter pending in the Children Court; the Children Court, being a specialized court to adjudicate children's matters, is better placed to hear and determine such matters and to avoid conflicting decisions; the learned Kadhi ought to have delved into issues of maintenance. To that extent, the learned Kadhi erred.
43. On the second issue as to the shares of the matrimonial property, Section 6(1)(c) of the Matrimonial Property Act, 2013 defines matrimonial property to include: any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.
44. From the evidence available in court, although the Kadhi established that the sale agreement was in the name of both parties, at the time the properties were purchased, the Appellant was in Kenya while the Respondent was in Juba.
45. The court also notes the evidence that the Respondent made monetary contributions, but the Kadhi appears not to have given due regard to the non-monetary contribution by the Appellant.
46. In my view, marriage is anchored, inter alia, on love, affection and sympathy and exists like a rolling wheel gathering property rights traceable to the spouses individually or collegially, after a stall. This view was also contextualized in the thoughts of Margaret Puxon, in her Article Ownership of the Matrimonial Home (1963), 107 Sol. J. 204, thus:
Marriage is a partnership of love, affection and sympathy which should come to an end when these perish. When the parties wed, the husband and wife vow in the wedding ceremony, "with all the worldly goods I thee endow," and the joint ownership should be jealously guarded both by written law and by popular sentiments. Consequently, when the husband and wife part, there should be a separation not only of heart and hand, but of goods as well, and unless there is such a separation, there should be no divorce.
47. The court is alive to the fact that each case must be determined based on its own peculiar circumstances. Indeed, the Court of Appeal had this in mind in TKM v SMW [2020] eKLR where it is stated as follows:
“We bear in mind the edict in Muthembwa v. Muthembwa (2002) 1 EA 186, and many other decisions reminding the courts that 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.”
48. Contribution towards the acquisition of matrimonial property is defined under Section 2 of the Matrimonial Property Act, 2013 in the following terms:
In this Act, unless the context otherwise requires—
“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.
49. It is clear to this court that the Matrimonial Property Act of 2013 recognizes and formalizes both the monetary and non-monetary contribution of parties in a marriage. Also clear is that while the Respondent was away working in Juba, the Appellant was home in charge of their family property and possessions. In NWM v KNM (2014) eKLR, the court stated that the court must give effect to both monetary and non-monetary contributions that both the Applicant and the Respondent made during the currency of the marriage to acquire the matrimonial property. Similarly, the House of Lords in White vs White (200) UKHL 54 underscored the greater awareness of the value of non-financial contributions to the welfare of the family.
50. It is my considered view that the non-monetary contribution often-times cannot be quantified. It is my finding therefore, that the Respondent made monetary and non-monetary contribution towards acquiring the subject motor vehicle. I am fortified by Section 14 of the Matrimonial Property Act as follows: -
Presumptions as to property acquired during marriage 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 rebuttable presumption that their beneficial interests in the matrimonial property are equal.
51. The award to the Appellant of 20% share in the matrimonial property was inadequate and unjustified. I set it aside and substitute it with an award of 50:50 for the Appellant and the Respondent. The learned Kadhi ought to have applied the maxim equality is equity to divide the matrimonial property equally. In Peter Mburu Echaria v Priscilla Njeri Echaria [2007] eKLR, a five-judge bench of the Court of Appeal held that where the property in dispute is registered in the name of one spouse, the beneficial interest of each spouse would depend on the financial contribution by each spouse, either directly or indirectly. The court held:
“Where the disputed property is not so registered in the joint names of the spouses but is registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective proportions of financial contribution either direct or indirect towards the acquisition of the property. However, in cases where each spouse has made a substantial but unascertainable contribution, it may be equitable to apply the maxim “Equality is equity” while heeding the caution by Lord Pearson in Gissing v Gissing (supra) at page 788 paragraph c that:“No doubt it is reasonable to apply the maxim in a case where there has been very substantial contributions (otherwise than by way of advancement) by one spouse to the purchase of property in the name of the other spouse but the portion borne by the contributions to the total purchase price or cost is difficult to fix. But if it is plain, that the contributing spouse has contributed about one-quarter, I do not think it is helpful or right for the court to feel obliged to award either one-half or nothing”
52. Furthermore, in Hardwood v Thomas [1981] 4167 (NS CA), the Canadian Court also acknowledged that equality is encouraged in division of property by stating:
“Equal division of the matrimonial assets, an entitlement proclaimed by the preamble to the act and prescribed by section 12 should normally be refused only where the spouse claiming a larger share produces strong evidence showing that in all the circumstances equal division would be clearly unfair and unconscionable on a broad view of all relevant factors. That initial decision is whether, broadly speaking, equality would be clearly unfair - not whether on a precise balancing of credits and debits of factors largely imponderable some unequal division of assets could be justified. Only when the judge in his discretion concludes that equal division would be unfair is he called upon to determine exactly what unequal division might be made.”
53. I therefore find and hold that having been acquired during the subsistence of the marriage between the Appellant and the Respondent, the determination by the learned Kadhi was in error for failure to take into regard both monetary and nonmonetary contributions. I am also fortified by the reasoning in the case of PWK vs JKG 2015 eKLR where the Court stated as follows:
“Where the disputed property is not so registered in the joint names of the spouses but is registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective proportions of financial contribution either direct or indirect towards the acquisition of the property. However, in cases where each spouse has made a substantial but unascertainable contribution, it may be equitable to apply the maxim Equality is equity while heeding the caution of Lord Pearson in Gissing vs Gissing [1970] 2All ER 780 Page 788.”
54. For the foregoing reasons, the appeal is merited, and I allow it. Consequently, the judgment of the Kadhi’s Court delivered on 19th October 2023 is hereby set aside.
Final Orders
55. The upshot of the foregoing is that I make the following Orders:
i. A Declaration is hereby issued that the house at Kadzandani Area on Plot No. 259 Section II MN (Lakeview Estate) Phase 6 in Bamburi, which is a four-flat house, and the two plots of Bombolulu Estate, Mombasa County are matrimonial property of the parties;
ii. A Declaration is hereby issued that both properties are owned by the Appellant and the Respondent on a 50:50 basis;
iii. An order is hereby issued that the said properties be valued within 60 days of the date hereof and sold within 90 days by way of public auction;
iv. Pending the sale of the said house, rent shall be collected by an agent agreed upon by the parties, provided that if the parties fail to agree, rent will be collected by an agent appointed by the court;
v. The Orders on maintenance of the children are set aside as there are similar orders in place issued by the Children’s Court; and
vi. Given the nature of the matter, each party shall bear their own costs of the Appeal.
56. Orders accordingly.
Dated and signed in Mombasa this 27th day of August 2025. Delivered virtually through Microsoft TEAMS.
2. Vide the Memorandum of Appeal dated 2nd November 2023, the Appellant, who was the Petitioner in the Kadhi’s Court, raised the following material grounds of appeal:
(a) The learned trial Kadhi erred in law and fact in considering irrelevant matters without proof, which led to a miscarriage of justice.
(b) The learned trial Kadhi erred in law and fact in declaring the house at Kadzandani erected on plot no. 259 Section I MN- Bamburi as matrimonial property despite overwhelming contrary evidence.
(c) The learned trial Kadhi erred in law and fact in failing to find that there was no contribution in respect of plot no. 259 Section I MN, Bamburi and 2 double plots at Bombolulu Estate.
(d) The learned trial Kadhi erred in law and fact in failing to conduct a pre-trial conference contrary to Rule 47 of the Kadhi’s Court (Procedure and Practice) Rules.
(e) The learned trial Kadhi erred in law and fact in exceeding jurisdiction by making pronouncements on matters of the custody of the children.
Pleadings
3. The Appellant instituted proceedings vide the Petition dated 25th May 2022 at the Kadhi’s Court in Mombasa. By the said Petition, the Appellant sought reliefs inter alia that:
(a) The marriage be dissolved, and the Petitioner be issued with a divorce certificate.
(b) The Respondent be condemned to bear the costs.
4. It was the case of the Appellant that she was married to the Respondent on 11th May 2012 and the marriage was blessed with two issues aged 8 and 5 years respectively.
5. It was also posited by the Appellant that the Respondent was guilty of cruelty and desertion and had served the Appellant with talaq on 12th May 2021 but declined to formally dissolve the marriage.
6. The Respondent entered appearance and filed his answer to the Petition and cross-petition dated 25th July 2022. It was pleaded that the Appellant did not oppose the divorce.
7. It was the stated case of the Respondent that during the marriage he had solely acquired a house at Kadzandani erected on Plot No. 259, Section I, MN-Bamburi, which is a 4-flat house where the Appellant stayed with the children, and regarded the same as the matrimonial home, as well as 2 double plots at Bombolulu Estate in Mombasa.
8. It was further the case of the Respondent that he worked in Juba and could send money to the Appellant’s bank accounts that he opened for her for the purpose of acquiring several properties.
9. It was further the case of the Respondent that the Kadzandani property yielded rent that the Appellant never disclosed to the Respondent.
10. The Respondent sought the following reliefs:
a) A declaration that the Respondent solely contributed to the acquisition of the properties and the Appellant is not entitled thereto.
b) An order for the Appellant to forthwith vacate the matrimonial house.
c) An order against the Appellant to cease and desist from collecting rent.
d) An order for the Appellant to pay the Respondent Kes. 1,500,000/-.
e) An order for the Appellant to hand over the child Hassan.
11. In her answer to the cross-petition, the Appellant averred in material as follows:
a) The properties in Bombolulu and Bamburi belonged to her, and her parents and the Appellant had no share or claim therefrom.
b) The Appellant never sent any monies to the Respondent.
12. The trial Kadhi considered the dispute and rendered the judgment dated 19.10.202 by which it was determined and decreed as follows:
a) The house at Kadzandani Area plot no. 259 section II MN (Lakeview Estate) phase 6 in Bamburi, which is a four-flat house, and the two plots of Bombolulu Estate, Mombasa County, are matrimonial property of the parties.
b) The Petitioner is entitled to a 20% share of the matrimonial property, whereas the Respondent owns 80%.
c) The Petitioner do vacate the house at Kadzandani within 60 days
d) The Petitioner do stop collecting rent from the house at Kadzandani.
e) The parties to appoint an agent for collecting rent at the Kadzandani property.
f) The actual and physical custody of the children to be vested in the Petitioner and the Respondent to have reasonable access.
g) The Respondent is directed to make monthly payments of Ksh. 30,000/= for the upkeep of the minors.
h) The Respondent to provide alternative shelter for the minors with their mother
i) The Respondent has an obligation for the education and medication of the children.
13. Aggrieved, the Appellant lodged this Appeal.
Evidence
14. It would appear that on 23rd January 2023, the court conducted a pre-trial conference in which the Appellant and the Respondent herein appeared. The court then granted the parties leave to file further documents and affidavits and set a mention date for 30th January 2023 to confirm compliance.
15. The court subsequently proceeded to render the impugned judgment though the record does not show that the oral testimonies of the parties were taken as per the affidavits and documents relied upon in support of their respective cases.
Submissions
The Appellant’s Submissions
16. The Appellant filed submissions dated 8th October 2024.
17. It was submitted in relation to grounds 1,2,3 and 4 of the memorandum of appeal that the Honorable Kadhi erred in law and in fact in finding for the Respondent with regard to declaring the house at Kadzandani erected on Plot No. 259 section I MN - Bamburi as matrimonial property despite overwhelming evidence produced by the Appellant, and in failing to find that there was no contribution on the part of the Respondent in respect to Plot No. 259 section I MN - Bamburi and 2 double plots at Bombolulu estate- Mombasa.
18. She relied on Sections 6 and 14 of the Matrimonial Property Act, 2013 as follows:
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. 2. Despite subsection (1), trust property, including property held in trust under customary law, does not form part of matrimonial property. 3. Despite subsection (1), the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights. 4. A party to an agreement made under subsection (3) may apply to the Court to set aside the agreement and the Court may set aside the agreement if it determines that the agreement was influenced by fraud, coercion or is manifestly unjust.
19. Further reliance was placed on Section 9 of the Matrimonial Property Act as follows:
“Where one spouse acquires property before or during the marriage and the property acquired during the marriage does not become matrimonial property, but the other spouse makes a contribution towards the improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made.”
20. Based on the above sections of the law, it was submitted that that there was no evidence to show that the properties in bamburi and Bombolulu are matrimonial properties and that the Respondent contributed towards their acquisition or improvement. Thus, the said properties cannot be said to be matrimonial properties. The Matrimonial Property Act Section 2 defines "contribution" to mean 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.
21. Reliance was placed on the case of Njoroge v Ngari [1985] KLR, 480, where the court held that if a matrimonial property is being held in the name of one person, even if that property is registered in the name of that one person but the other spouse made contribution towards its acquisition, then each spouse has proprietary interests in that property.
22. The Appellant also cited Falconer v Falconer [1970] 3 All ER where Justices of Appeal held that: ‘‘And the principles applicable to whether a matrimonial home standing in the name of the husband belonged to them both jointly (in equal or unequal shares) were that the law imputed to the husband and the wife an intention to create a trust for each other by way of inference from their conduct and the surrounding circumstances; an inference of trust would be readily drawn when each had made a substantial financial contribution to the contribution was stated to be such or indirectly as where both parties went out to work and one paid the housekeeping and the other paid the mortgage instruments; but whether the parties held in equal shares would depend on their respective contributions.
23. It was further submitted while anchoring grounds 6 and 7 that the learned Kadhi erred in law and in fact in delving into matters which were outside his jurisdiction, in making a determination pertaining the custody of the children, and in delivering an ambiguous Judgment based on evidence provided by the Respondent, which Judgment is unenforceable on the face of it.
24. Reliance placed on Article 170(5) of the Constitution which provides: “The jurisdiction of a Kadhi’s Court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts”
25. Further reliance was placed on section 5 of the Kadhi’s Courts Act as follows; A Kadhis court shall have and exercise the following jurisdiction, namely the Determination of questions of Muslim law relating to personal status, marriage, divorce Or inheritance in proceedings in which all the parties profess the Muslim religion; but Nothing in this section shall limit the Jurisdiction of the High Court or of any subordinate Court in any proceeding which comes before it.
The Respondent’s Submissions
26. The Respondent filed submissions dated 23.10.2024. It was submitted in relation to grounds 1 to 5 that division of matrimonial property must be based on the parties' contributions. The Respondent cited section 7 of the Matrimonial Property Act. He cited the case of EMK V SSS (2020)e KLR to submit that each spouse is entitled to his property and also relied on the Supreme Court Decision in JOO v MBO (2023)e KLR to submit that a spouse could not acquire an interest in matrimonial property by virtue of being married only.
27. The Respondent submitted that the Appellant never produced any proof of her contribution as required under section 108 of the Evidence Act.
28. It was further submitted that the 20% share awarded by the Kadhi’s court was a fair share of the indirect contribution of the Appellant. Reliance was placed on MNH v FHM (2018)e KLR.
29. On jurisdiction, while advancing grounds 6 and 7, it was submitted that the Kadhi had jurisdiction on children matters under Article 170(5) of the Constitution. Reliance was also placed, inter alia, on TSJ v SHSR (2019)e KLR and AYM v HIK (2023)e KLR.
30. It was further submitted in relation to grounds 8 and 9 that the judgment of the Kadhi was not ambiguous and was enforceable.
Analysis and determination
31. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first-hand.
32. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
33. The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the law looks in their usual gusto, held by as follows;-
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
34. The Court is to bear in mind that it had neither seen nor heard the witnesses. The trial court observed the demeanour and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as in the lower court, as parties cannot read into those documents matters extrinsic to them.
35. Further, in the case of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
36. The issues before me for determination are as follows:
a) Whether the Kadhi’s court had jurisdiction to declare custody and maintenance of the children.
b) Whether the court erred in its finding on matrimonial property rights of the parties.
37. On the preliminary issue as to whether the Kadhi’s Court had jurisdiction to hear and determine children matters, my view is that it does.
38. On the issue of jurisdiction, it was stated in the case Owners of Motor Vessel “Lillian S” –vs- Caltex Oil (K) Ltd [1989] KLR 1 that:
“Jurisdiction is everything. Without it a Court has no power to take one more step, where a Court has no jurisdiction there would be no basis for a continuation of proceedings pending the evidence. A Court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”
Further in n Samuel Kamau Macharia & another –vs- Kenya Commercial Bank Ltd & 2 others [2012] eKLR, the Supreme Court of Kenya rendered itself in part;“…a court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law…”
39. The Kadhis Court is a creature of the Constitution ( Article 169 of the 2010 Constitution. The jurisdiction of the Kadhi’s Court is specifically defined under Article 170(5) of the Constitution and Section 5 of the Kadhi’s Court Act as-
“determination of questions of Muslim Law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s Court.”
40. Thus, the jurisdiction of the Kadhi's Court is determined by the existence of three factors:
(i) the subject matter of the claim or dispute;
(ii)the party’s Muslim faith; and
(iii)the party’s submission to the jurisdiction of the Kadhis Court.
41. The case of Republic v Kadhis Court Nairobi & 2 others Ex- parte T L [2018] eKLR the court stated as follows:
3.In the instant case, all the parties are Muslims and profess the Islamic faith. The exparte applicant and the interested party were married under the Islamic law. Their marriage seems to be on the verge of collapse and there is a dispute as to whether custody and guardianship of the child, issue of their marriage is a question of Muslim law of personal status within the meaning of Article 170 (5) of the Constitution and section 5 of the Kadhis Courts Act; or is an issue that falls within the jurisdiction of the Children’s courts established under the Children’s Act,2001.
194.In my humble view, there is no dispute that courts which are specialized in Islamic law in other jurisdictions have the jurisdiction to hear and determine disputes relating to custody, guardianship and control of children. There is also no dispute that from a plethora of useful persuasive authorities and scholarly articles from journals and elsewhere relied on by the 1st respondent, in countries where Islam is the state religion, the applicable law to Muslims is Sharia law and therefore there is no way a dispute such as the one before us would be handled in a different court than a religious court.
42. I am persuaded that the Kadhi’s court has jurisdiction to deal with children's matters. Having so found, by the time the impugned judgment was delivered, there was a matter pending in the Children Court; the Children Court, being a specialized court to adjudicate children's matters, is better placed to hear and determine such matters and to avoid conflicting decisions; the learned Kadhi ought to have delved into issues of maintenance. To that extent, the learned Kadhi erred.
43. On the second issue as to the shares of the matrimonial property, Section 6(1)(c) of the Matrimonial Property Act, 2013 defines matrimonial property to include: any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.
44. From the evidence available in court, although the Kadhi established that the sale agreement was in the name of both parties, at the time the properties were purchased, the Appellant was in Kenya while the Respondent was in Juba.
45. The court also notes the evidence that the Respondent made monetary contributions, but the Kadhi appears not to have given due regard to the non-monetary contribution by the Appellant.
46. In my view, marriage is anchored, inter alia, on love, affection and sympathy and exists like a rolling wheel gathering property rights traceable to the spouses individually or collegially, after a stall. This view was also contextualized in the thoughts of Margaret Puxon, in her Article Ownership of the Matrimonial Home (1963), 107 Sol. J. 204, thus:
Marriage is a partnership of love, affection and sympathy which should come to an end when these perish. When the parties wed, the husband and wife vow in the wedding ceremony, "with all the worldly goods I thee endow," and the joint ownership should be jealously guarded both by written law and by popular sentiments. Consequently, when the husband and wife part, there should be a separation not only of heart and hand, but of goods as well, and unless there is such a separation, there should be no divorce.
47. The court is alive to the fact that each case must be determined based on its own peculiar circumstances. Indeed, the Court of Appeal had this in mind in TKM v SMW [2020] eKLR where it is stated as follows:
“We bear in mind the edict in Muthembwa v. Muthembwa (2002) 1 EA 186, and many other decisions reminding the courts that 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.”
48. Contribution towards the acquisition of matrimonial property is defined under Section 2 of the Matrimonial Property Act, 2013 in the following terms:
In this Act, unless the context otherwise requires—
“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.
49. It is clear to this court that the Matrimonial Property Act of 2013 recognizes and formalizes both the monetary and non-monetary contribution of parties in a marriage. Also clear is that while the Respondent was away working in Juba, the Appellant was home in charge of their family property and possessions. In NWM v KNM (2014) eKLR, the court stated that the court must give effect to both monetary and non-monetary contributions that both the Applicant and the Respondent made during the currency of the marriage to acquire the matrimonial property. Similarly, the House of Lords in White vs White (200) UKHL 54 underscored the greater awareness of the value of non-financial contributions to the welfare of the family.
50. It is my considered view that the non-monetary contribution often-times cannot be quantified. It is my finding therefore, that the Respondent made monetary and non-monetary contribution towards acquiring the subject motor vehicle. I am fortified by Section 14 of the Matrimonial Property Act as follows: -
Presumptions as to property acquired during marriage 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 rebuttable presumption that their beneficial interests in the matrimonial property are equal.
51. The award to the Appellant of 20% share in the matrimonial property was inadequate and unjustified. I set it aside and substitute it with an award of 50:50 for the Appellant and the Respondent. The learned Kadhi ought to have applied the maxim equality is equity to divide the matrimonial property equally. In Peter Mburu Echaria v Priscilla Njeri Echaria [2007] eKLR, a five-judge bench of the Court of Appeal held that where the property in dispute is registered in the name of one spouse, the beneficial interest of each spouse would depend on the financial contribution by each spouse, either directly or indirectly. The court held:
“Where the disputed property is not so registered in the joint names of the spouses but is registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective proportions of financial contribution either direct or indirect towards the acquisition of the property. However, in cases where each spouse has made a substantial but unascertainable contribution, it may be equitable to apply the maxim “Equality is equity” while heeding the caution by Lord Pearson in Gissing v Gissing (supra) at page 788 paragraph c that:“No doubt it is reasonable to apply the maxim in a case where there has been very substantial contributions (otherwise than by way of advancement) by one spouse to the purchase of property in the name of the other spouse but the portion borne by the contributions to the total purchase price or cost is difficult to fix. But if it is plain, that the contributing spouse has contributed about one-quarter, I do not think it is helpful or right for the court to feel obliged to award either one-half or nothing”
52. Furthermore, in Hardwood v Thomas [1981] 4167 (NS CA), the Canadian Court also acknowledged that equality is encouraged in division of property by stating:
“Equal division of the matrimonial assets, an entitlement proclaimed by the preamble to the act and prescribed by section 12 should normally be refused only where the spouse claiming a larger share produces strong evidence showing that in all the circumstances equal division would be clearly unfair and unconscionable on a broad view of all relevant factors. That initial decision is whether, broadly speaking, equality would be clearly unfair - not whether on a precise balancing of credits and debits of factors largely imponderable some unequal division of assets could be justified. Only when the judge in his discretion concludes that equal division would be unfair is he called upon to determine exactly what unequal division might be made.”
53. I therefore find and hold that having been acquired during the subsistence of the marriage between the Appellant and the Respondent, the determination by the learned Kadhi was in error for failure to take into regard both monetary and nonmonetary contributions. I am also fortified by the reasoning in the case of PWK vs JKG 2015 eKLR where the Court stated as follows:
“Where the disputed property is not so registered in the joint names of the spouses but is registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective proportions of financial contribution either direct or indirect towards the acquisition of the property. However, in cases where each spouse has made a substantial but unascertainable contribution, it may be equitable to apply the maxim Equality is equity while heeding the caution of Lord Pearson in Gissing vs Gissing [1970] 2All ER 780 Page 788.”
54. For the foregoing reasons, the appeal is merited, and I allow it. Consequently, the judgment of the Kadhi’s Court delivered on 19th October 2023 is hereby set aside.
Final Orders
55. The upshot of the foregoing is that I make the following Orders:
i. A Declaration is hereby issued that the house at Kadzandani Area on Plot No. 259 Section II MN (Lakeview Estate) Phase 6 in Bamburi, which is a four-flat house, and the two plots of Bombolulu Estate, Mombasa County are matrimonial property of the parties;
ii. A Declaration is hereby issued that both properties are owned by the Appellant and the Respondent on a 50:50 basis;
iii. An order is hereby issued that the said properties be valued within 60 days of the date hereof and sold within 90 days by way of public auction;
iv. Pending the sale of the said house, rent shall be collected by an agent agreed upon by the parties, provided that if the parties fail to agree, rent will be collected by an agent appointed by the court;
v. The Orders on maintenance of the children are set aside as there are similar orders in place issued by the Children’s Court; and
vi. Given the nature of the matter, each party shall bear their own costs of the Appeal.
56. Orders accordingly.
Dated and signed in Mombasa this 27th day of August 2025. Delivered virtually through Microsoft TEAMS.