1. The claimant filed the Originating Summons dated 17th October 2023 vide which she sought the following orders:-
a. That this honourable court be pleased to declare that the house situated at Miritini in Mombasa county to be a matrimonial property;
b. That this honourable court be pleased to declare that the plaintiff made a contribution, monetary and or non-monetary, to the building of the house situated in Miritini, Mombasa county, and thus she is entitled to an equal share of the said property;
c. That the said property be valued and settled for the benefit of the plaintiff in such an equal manner and proportions
d. That the costs be borne by the defendant.
2. In the affidavit in support of the originating summons, the claimant stated that she got married to the respondent in 2015 under customary law and that upon getting married, they cohabitated together as husband and wife at their matrimonial home in Miritini, Mombasa. The marriage was blessed with one issue, Jayden Lukundo, a boy aged 13 when the originating summons was filed.
3. The claimant stated that during the subsistence of the marriage, the respondent acquired a parcel of land located in the Kitui area of Miritini, Mombasa. He, however, failed to disclose the registration details of the said property. Thereafter, they put up a matrimonial home together; she averred that she had the capacity to contribute, as she worked in a container freight station and earned a good salary. Her contribution to the said property was both monetary and non-monetary. The non-monetary contribution was by way of companionship, caregiving, homemaking and care of their sole issue.
4. The claimant averred that their marriage was riddled with problems leading to its collapse in 2017. There was an agreement at first for her to receive rent proceeds, but the respondent resiled from what had been agreed and collected rent for his own use to her exclusion.
5. The claimant stated that since the house was built during coverture, she is entitled to it due to the substantial contribution that she made.
6. Although the respondent was served with the originating summons, he never entered an appearance nor filed a response. This court notes that service was effected on him through his email address, mwatati84@gmail.com, on 22nd October 2024 as stated in the affidavit of service sworn by the court process server, Kennedy M Wawire.
7. Despite not appearing or filing any response the respondent was served with the subsequent mention and hearing notices, the last of which was for the hearing on 6th February 2025.
8. The matter thus proceeded as an undefended cause. The originating summons was heard on 6th February 2025. The claimant relied on her supporting affidavit, which was adopted as her evidence in chief. She testified that she married the respondent under the Taita/Kamba customary law. The respondent kicked her out of their house. She testified that she needed the court's help to get her just entailment.
9. Upon the conclusion of the hearing the claimant was ordered to file written submissions.
10. The submissions of the claimant’s counsel are dated 13th February 2025. In the said submissions, Ms Midikila, learned counsel for the claimant, stated the respondent, despite being served, did not appear, and hence, the evidence of the claimant was uncontroverted. She urged that the claimant had proved her case on a balance of probability as her evidence was not challenged.
11. Counsel urged that Section 6 of the Matrimonial Properties Act defines matrimonial property as including a matrimonial home or houses. The house was built in the Kitui area of Miritini and was a matrimonial home as she contributed to its acquisition and construction.
12. On whether the claimant contributed it was urged based on the provision of Section 2 of the said Act that her contribution was both monetary and non-monetary and included domestic work, companionship and child care.
13. Counsel submitted that matrimonial property, pursuant to section 7 of the Act, vests in the spouse on the basis of contribution. Noting the difficulty of ascertaining actual contribution given that parties rarely keep records of contribution during the time of marriage is hale and hearty, Ms Midikila, relying on the decision of the court in M G N K v A M G [2016] KECA 638 (KLR) submitted that the claimant should be apportioned her share.
14. I have considered the originating summons, the supporting affidavit and the evidence adduced. Although the case was not opposed, I must examine it on its merit and determine if the orders sought should be issued.
15. It is necessary that I set out some statutory underpinnings of my decision below. The quest will begin from the Constitution, which in our legal set-up is the grund norm, our true North.
16. Article 45 (3) of the Constitution states that:-
“(3) Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.”
17. Section 7 of the Matrimonial Property Act states:-
“Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved. ”.
18. Section 6 of the Matrimonial Property Act states:-
“(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. Section 2 of the Matrimonial Property Act states;
“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;
“family business” means any business which—
(a) is run for the benefit of the family by both spouses or either spouse; and
(b) generates income or other resources wholly or part of which are for the benefit of the family;
“matrimonial home” means any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home and includes any other attached property.”
20. Applying the above provisions of the law to the instant matter leads me to the ineluctable conclusion that this matter has merits.
21. It hasn’t been controverted that the claimant was married to the respondent. From the birth certificate of the issue of their union, I am persuaded on a balance of probability that there was indeed a marriage. I am also persuaded for want of evidence to the contrary that the said marriage was dissolved under the law that birthed the marriage.
22. There is no dispute that the property, the subject matter of this summons, was acquired during coverture. That being the case, the same is a matrimonial property under the laws of Kenya.
23. Given that the claimant was in employment and earned, going by what she stated, to be a good salary, it is my view that she had the means to contribute towards the purchase and the development of the matrimonial home. Her contribution would necessarily have been monetary and non-monetary, as she provided the husband with companionship, love and affection that enabled him to thrive and took care of the issue of the marriage as the primary care giver.
24. The principles used by the courts in determining the division of matrimonial property were settled by the Supreme Court in the case of Joseph Ombogi Ogentoto Vs Martha Bosibori Ogentoto [2023]eKLR, where it was stated inter alia as follows:-
“In the event that a marriage breaks down, the function of any court is to make a fair and equitable division of the acquired matrimonial property guided by the provisions of Article 45(3) of the Constitution. To hold that Article 45(3) has the meaning of declaring that property should be automatically shared at the ratio of 50:50 would bring huge difficulties within marriages and Tuiyott, J (as he then was) has explained why above. Noting the changing times and the norms in our society now, such a finding would encourage some parties to only enter into marriages, comfortably subsist in the marriage without making any monetary or non- monetary contribution, proceed to have the marriage dissolved then wait to be automatically given 50% of the marital property. That could not have been the intention of our law on the subject.”
25. I agree with the holding of the court in the case of P N N v Z W N [2017] eKLR, in particular the holding by Kiage, JA that:-
“The reality remains that when the ship of marriage hits the rocks, flounders and sinks, the sad, awful business of division and distribution of matrimonial property must be proceeded with on the basis of fairness and conscience, not a romantic clutching on to the 50:50 mantra. It is not a matter of mathematics merely as in the splitting of an orange in two for, as biblical Solomon of old found, justice does not get to be served by simply cutting up a contested object of love, ambition or desire into two equal parts. I would repeat what we said in Francis Njoroge vs. Virginia Wanjiku Njoroge, Nairobi Civil Appeal No. 179 of 2009;
“ … a division of the property must be decided after weighing the peculiar circumstances of each case. As was stated by the Court of Appeal of Singapore in LOCK YENG FUN v CHUA HOCK CHYE [2007] SGCA 33;
‘It is axiomatic that the division of matrimonial property under Section 112 of the Act is not – and, by its very nature cannot be – e precise mathematical exercise’.”
26. It would appear that marriage is contracted by two people deeply in love and with a positive attitude towards the future. As long as the marriage is healthy, record keeping is frowned upon as it suggests a lack of trust. I therefore agree with the observations the Court made in ENK vs JNK [2015]eKLR and, in particular, to the holding that:-
“When parties get into marriage, they usually intend the arrangement to be for life. Divorce is not in their minds. This is the position regardless of the system of law under which the parties contract the marriage. Indeed, that is the conception of marriage in Hyde vs Hyde and Woodmanse (1866) 1 LRIP & D 1230. The parties to the marriage thereafter live their lives according to the concept of permanence of their marriage. This then creates the presumption that whatever property is acquired must have been intended to be for the benefit of the family.”
27. What flows from the above is that it is difficult to ascertain contribution with certainty. Division of matrimonial property therefore isn’t an exercise in mathematics, but rather a delicate balancing act governed by tenets of justice and common sense.
28. Since it isn’t possible to determine contribution with precision am inclined to make a presumption that the matrimonial property is owned by the parties hereto equally. Guided by the equitable maxim that equality is equity I find and hold that they are entitled to the matrimonial property equally.
29. In the circumstance, I find and hold that the hose in Miritini is a matrimonial property. I declare that it is jointly owned by the parties hereto equally on a 50:50 basis.
30. The orders that therefore commend themselves to me are:-
a. The matrimonial house in Kitui area of Miritini in Mombasa is hereby declared as a matrimonial property;
b. The said house and land on which it stands are owned by the claimant and the respondent on a 50:50 basis;
c. The said property be valued within 60 days of the date hereof by a valuer jointly appointed by the parties hereto and sold within 90 days of the date hereof, and the proceeds shared equally between the claimant and the respondent;
d. Each party shall bear its own costs as this is a matrimonial property dispute between former spouses.
31. Orders accordingly.
Dated and signed at Mombasa this 19th day of March 2025. Delivered virtually via Microsoft TEAMS.
a. That this honourable court be pleased to declare that the house situated at Miritini in Mombasa county to be a matrimonial property;
b. That this honourable court be pleased to declare that the plaintiff made a contribution, monetary and or non-monetary, to the building of the house situated in Miritini, Mombasa county, and thus she is entitled to an equal share of the said property;
c. That the said property be valued and settled for the benefit of the plaintiff in such an equal manner and proportions
d. That the costs be borne by the defendant.
2. In the affidavit in support of the originating summons, the claimant stated that she got married to the respondent in 2015 under customary law and that upon getting married, they cohabitated together as husband and wife at their matrimonial home in Miritini, Mombasa. The marriage was blessed with one issue, Jayden Lukundo, a boy aged 13 when the originating summons was filed.
3. The claimant stated that during the subsistence of the marriage, the respondent acquired a parcel of land located in the Kitui area of Miritini, Mombasa. He, however, failed to disclose the registration details of the said property. Thereafter, they put up a matrimonial home together; she averred that she had the capacity to contribute, as she worked in a container freight station and earned a good salary. Her contribution to the said property was both monetary and non-monetary. The non-monetary contribution was by way of companionship, caregiving, homemaking and care of their sole issue.
4. The claimant averred that their marriage was riddled with problems leading to its collapse in 2017. There was an agreement at first for her to receive rent proceeds, but the respondent resiled from what had been agreed and collected rent for his own use to her exclusion.
5. The claimant stated that since the house was built during coverture, she is entitled to it due to the substantial contribution that she made.
6. Although the respondent was served with the originating summons, he never entered an appearance nor filed a response. This court notes that service was effected on him through his email address, mwatati84@gmail.com, on 22nd October 2024 as stated in the affidavit of service sworn by the court process server, Kennedy M Wawire.
7. Despite not appearing or filing any response the respondent was served with the subsequent mention and hearing notices, the last of which was for the hearing on 6th February 2025.
8. The matter thus proceeded as an undefended cause. The originating summons was heard on 6th February 2025. The claimant relied on her supporting affidavit, which was adopted as her evidence in chief. She testified that she married the respondent under the Taita/Kamba customary law. The respondent kicked her out of their house. She testified that she needed the court's help to get her just entailment.
9. Upon the conclusion of the hearing the claimant was ordered to file written submissions.
10. The submissions of the claimant’s counsel are dated 13th February 2025. In the said submissions, Ms Midikila, learned counsel for the claimant, stated the respondent, despite being served, did not appear, and hence, the evidence of the claimant was uncontroverted. She urged that the claimant had proved her case on a balance of probability as her evidence was not challenged.
11. Counsel urged that Section 6 of the Matrimonial Properties Act defines matrimonial property as including a matrimonial home or houses. The house was built in the Kitui area of Miritini and was a matrimonial home as she contributed to its acquisition and construction.
12. On whether the claimant contributed it was urged based on the provision of Section 2 of the said Act that her contribution was both monetary and non-monetary and included domestic work, companionship and child care.
13. Counsel submitted that matrimonial property, pursuant to section 7 of the Act, vests in the spouse on the basis of contribution. Noting the difficulty of ascertaining actual contribution given that parties rarely keep records of contribution during the time of marriage is hale and hearty, Ms Midikila, relying on the decision of the court in M G N K v A M G [2016] KECA 638 (KLR) submitted that the claimant should be apportioned her share.
14. I have considered the originating summons, the supporting affidavit and the evidence adduced. Although the case was not opposed, I must examine it on its merit and determine if the orders sought should be issued.
15. It is necessary that I set out some statutory underpinnings of my decision below. The quest will begin from the Constitution, which in our legal set-up is the grund norm, our true North.
16. Article 45 (3) of the Constitution states that:-
“(3) Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.”
17. Section 7 of the Matrimonial Property Act states:-
“Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved. ”.
18. Section 6 of the Matrimonial Property Act states:-
“(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. Section 2 of the Matrimonial Property Act states;
“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;
“family business” means any business which—
(a) is run for the benefit of the family by both spouses or either spouse; and
(b) generates income or other resources wholly or part of which are for the benefit of the family;
“matrimonial home” means any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home and includes any other attached property.”
20. Applying the above provisions of the law to the instant matter leads me to the ineluctable conclusion that this matter has merits.
21. It hasn’t been controverted that the claimant was married to the respondent. From the birth certificate of the issue of their union, I am persuaded on a balance of probability that there was indeed a marriage. I am also persuaded for want of evidence to the contrary that the said marriage was dissolved under the law that birthed the marriage.
22. There is no dispute that the property, the subject matter of this summons, was acquired during coverture. That being the case, the same is a matrimonial property under the laws of Kenya.
23. Given that the claimant was in employment and earned, going by what she stated, to be a good salary, it is my view that she had the means to contribute towards the purchase and the development of the matrimonial home. Her contribution would necessarily have been monetary and non-monetary, as she provided the husband with companionship, love and affection that enabled him to thrive and took care of the issue of the marriage as the primary care giver.
24. The principles used by the courts in determining the division of matrimonial property were settled by the Supreme Court in the case of Joseph Ombogi Ogentoto Vs Martha Bosibori Ogentoto [2023]eKLR, where it was stated inter alia as follows:-
“In the event that a marriage breaks down, the function of any court is to make a fair and equitable division of the acquired matrimonial property guided by the provisions of Article 45(3) of the Constitution. To hold that Article 45(3) has the meaning of declaring that property should be automatically shared at the ratio of 50:50 would bring huge difficulties within marriages and Tuiyott, J (as he then was) has explained why above. Noting the changing times and the norms in our society now, such a finding would encourage some parties to only enter into marriages, comfortably subsist in the marriage without making any monetary or non- monetary contribution, proceed to have the marriage dissolved then wait to be automatically given 50% of the marital property. That could not have been the intention of our law on the subject.”
25. I agree with the holding of the court in the case of P N N v Z W N [2017] eKLR, in particular the holding by Kiage, JA that:-
“The reality remains that when the ship of marriage hits the rocks, flounders and sinks, the sad, awful business of division and distribution of matrimonial property must be proceeded with on the basis of fairness and conscience, not a romantic clutching on to the 50:50 mantra. It is not a matter of mathematics merely as in the splitting of an orange in two for, as biblical Solomon of old found, justice does not get to be served by simply cutting up a contested object of love, ambition or desire into two equal parts. I would repeat what we said in Francis Njoroge vs. Virginia Wanjiku Njoroge, Nairobi Civil Appeal No. 179 of 2009;
“ … a division of the property must be decided after weighing the peculiar circumstances of each case. As was stated by the Court of Appeal of Singapore in LOCK YENG FUN v CHUA HOCK CHYE [2007] SGCA 33;
‘It is axiomatic that the division of matrimonial property under Section 112 of the Act is not – and, by its very nature cannot be – e precise mathematical exercise’.”
26. It would appear that marriage is contracted by two people deeply in love and with a positive attitude towards the future. As long as the marriage is healthy, record keeping is frowned upon as it suggests a lack of trust. I therefore agree with the observations the Court made in ENK vs JNK [2015]eKLR and, in particular, to the holding that:-
“When parties get into marriage, they usually intend the arrangement to be for life. Divorce is not in their minds. This is the position regardless of the system of law under which the parties contract the marriage. Indeed, that is the conception of marriage in Hyde vs Hyde and Woodmanse (1866) 1 LRIP & D 1230. The parties to the marriage thereafter live their lives according to the concept of permanence of their marriage. This then creates the presumption that whatever property is acquired must have been intended to be for the benefit of the family.”
27. What flows from the above is that it is difficult to ascertain contribution with certainty. Division of matrimonial property therefore isn’t an exercise in mathematics, but rather a delicate balancing act governed by tenets of justice and common sense.
28. Since it isn’t possible to determine contribution with precision am inclined to make a presumption that the matrimonial property is owned by the parties hereto equally. Guided by the equitable maxim that equality is equity I find and hold that they are entitled to the matrimonial property equally.
29. In the circumstance, I find and hold that the hose in Miritini is a matrimonial property. I declare that it is jointly owned by the parties hereto equally on a 50:50 basis.
30. The orders that therefore commend themselves to me are:-
a. The matrimonial house in Kitui area of Miritini in Mombasa is hereby declared as a matrimonial property;
b. The said house and land on which it stands are owned by the claimant and the respondent on a 50:50 basis;
c. The said property be valued within 60 days of the date hereof by a valuer jointly appointed by the parties hereto and sold within 90 days of the date hereof, and the proceeds shared equally between the claimant and the respondent;
d. Each party shall bear its own costs as this is a matrimonial property dispute between former spouses.
31. Orders accordingly.
Dated and signed at Mombasa this 19th day of March 2025. Delivered virtually via Microsoft TEAMS.