REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
MATRIMONIAL PROPERTY CAUSE NO. E001 OF 2024
EVERLYNE NASAMBU MAMAI--------------------------------------------------APPLICANT
-VERSUS-
PATRICK LUSENAKA LUKA---------------------------------------------------RESPONDENT
-AND-
VINCENT WEKESA MUKWANA--------------1 ST PROPOSED INTERESTED PARTY
LUCAS SIMIYU MANG’ENI--------------------2 ND PROPOSED INTERESTED PARTY
RULING
1. The applicant’s Notice of Motion dated 7 th April 2025, is brought under section 8 (1) (a) of the Matrimonial Property Act. It seeks the following prayers:
(1) THAT the intended interested parties/respondents be and are hereby enjoined to this suit as interested parties;
(2) THAT entries dated 12.03.2025 and 24.03.2025 over land parcel no. BOKOLI/CHWELE/3867 be cancelled for the title to revert to the names of the respondent namely PATRICK LUSENAKA LUKA;
(3) THAT entries dated 12.03.2025 and 24.03.2025 over land parcel no. BOKOLI/CHWELE/3238 be cancelled for the title to revert to the names of the respondent namely PATRICK LUSENAKA LUKA;
(4) THAT costs of this application be provided for and be borne by the respondent.
2. The application is supported by the grounds on the face of the Motion, together with the supporting affidavit and further affidavit of the applicant, sworn on 7th April 2025 and 27th September 2025, respectively. According to the applicant, she filed the matrimonial cause herein by way of an Originating Summons dated 27th May 2024, seeking the distribution of several assets, including land parcels no. BOKOLI/CHWELE/3238 and BOKOLI/CHWELE/3867. The Summons, however, has yet to be heard, as the file mysteriously disappeared. This prompted the court to order its reconstruction. During the pendency, it came to the applicant's attention that the respondent had proceeded to mischievously transfer those two parcels of land to third parties.
3. The applicant accuses the respondent of lacking respect for the court and the judicial process, as he was hell-bent on doing whatever it took to frustrate the matrimonial cause by ensuring that no assets are shared between the parties. In the applicant’s opinion, the respondent’s actions amounted to circumventing, pre-empting and scuttling this court’s decision on the distribution of the matrimonial properties. Finally, she stated that she responded, by way of objection, to the notice of intention to remove the caution, through her counsel’s letter dated 16th January 2025. She urged this court to allow the application, as no prejudice would be occasioned to the other parties.
4. The respondent filed his replying affidavit and supplementary affidavits, sworn on 30th June 2025 and 15th July 2025, respectively. He contended that on 11th May 2020, he disposed of land parcel no. BOKOLI/CHWELE/3867 to the proposed 1st interested party, having duly executed a sale agreement. He communicated this transaction to the applicant, then the respondent’s wife, who consented. On 5th January 2023, he obtained consent from the Nalondo Land Control Board to transfer land parcels no. BOKOLI/CHWELE/3867 and BOKOLI/CHWELE/3238 to the 1st and 2nd interested parties, respectively. He further stated that although the applicant placed cautions on the two parcels of land on 13th January 2023, pending the determination of Bungoma Divorce Cause No. 8 of 2022, those cautions were removed after the divorce cause was determined on 2nd May 2024.
5. The respondent recalled that, prior to removal of those cautions, he notified the applicant of his intention to do so on 17th December 2024. However, she did not respond to that notice. Be that as it may, at the time the applicant filed the present cause, the respondent had already executed the transfer forms and obtained the relevant consents from the Land Control Board.
6. The respondent averred that during the subsistence of their holy matrimony, the applicant never made any financial or material contributions towards the acquisition of the suit parcels of land. She was therefore not entitled to claim from them. In any event, the applicant had not demonstrated that the properties are matrimonial in nature. He further stated that the orders for cancellation were not plausible, as the Land Registrar was not enjoined in these proceedings. For those reasons, the respondent urged this court to dismiss the application.
7. At his party, the proposed 1st interested party filed his replying affidavit, sworn on 17th August 2025. He deposed that land parcel no. BOKOLI/CHWELE/3867 was sold to him on 11th May 2020 for Kshs. 3,700,000.00. He prayed that the application be dismissed.
SUBMISSIONS
8. At the hearing of the application on 29 th September 2025, Mr. Were Advocate appeared for the applicant while Miss. Nekesa Advocate held Mr. Otsiula’s brief, for the respondent. The proposed 1 st interested party appeared in person. The parties orally relied on their respective pleadings, in their entirety, urging this court to find in their favour.
Determination
9. I have considered the application and the responses and analysed the law. The applicant seeks to enjoin the two proposed interested parties to these proceedings. A perusal of her application reveals that the grounds in support of that prayer were not expressly articulated. However, it is inferred that the intention of the joinder of the two parties is premised upon her prayers to order for cancellation of the entries made in favour of the interested parties in respect to the suit parcels of land, namely BOKOLI/CHWELE/3867 and BOKOLI/CHWELE/3238.
10. According to the green cards produced in her affidavit, the restrictions on the two parcels of land, arising from the proceedings in Bungoma Divorce Cause No. 8 of 2022, were lifted on 27th February 2025. On 12th March 2025, the respective properties were registered in the names of the proposed interested parties, and title deeds were issued on 24th March 2025. Thereafter, on 1st April 2025, a restriction was placed on both properties on the strength of the pendency of the present proceedings.
11. From the pleadings herein, it is disputed by the respondent that the property is matrimonial in its nature on account of the fact that the applicant has not demonstrated contribution to its acquisition. Interestingly, at clause 9 of the sale agreement dated 11 th May 2020, annexed to the respondent’s and the 1 st proposed interested party’s affidavits, between them, shows that the respondent sought for spousal consent prior to the sale of the suit land. In my view, these averments cannot determine the issues at this stage as they call for evidence that needs interrogation. These issues are best determined when the substantive matrimonial cause is heard by the trial court.
12. It is therefore my view that the orders sought by the applicant shall seek a declaration that the two parcels of land are matrimonial property. That would be a drastic decision made at an interlocutory stage when it has not yet been determined whether the two parcels of land are matrimonial property by dint of section 2, as read with section 7 of the Matrimonial Property Act. In my view, those orders sought cannot be granted at this stage
13. Regarding the joinder of the proposed interested parties, under rule 4 of the Matrimonial Property Rules, any person may institute civil proceedings claiming any right or relief in relation to matrimonial property. From the wording of that provision, if any person may institute proceedings in relation to matrimonial property, then a person may be joined as a necessary party in relation to the same.
14. Under order 1, rule 6 of the Civil Procedure Rules, which rules apply to matrimonial causes, a plaintiff may join any party he or she so deems fit at any stage of the proceedings. Further, under order 1, rule 9, no such suit shall be defeated by the misjoinder or non-joinder of such party. It is only in certain instances that joinder will be refused as was stated by the court in Lucy Nungari Ngigi & 128 others vs. National Bank of Kenya Limited & another [2015] KEHC 6117 (KLR) as follows:
“But, joinder of parties may be refused where such joinder: will lead into practical problems of handling the existing cause of action together with the one of the party being joined; is unnecessary; or will just occasion unnecessary delay or costs on the parties in the suit. In other word, joinder of parties will be declined where the cause of action being proposed or the relief sought is incompatible to or totally different from existing cause of action or the relief. The determining factor in joinder of parties is that a common question of fact or law would arise between the existing and the intended parties. This is the test I shall apply in this case.”
15. In this case, it is not disputed that the proposed interested parties purchased the suit properties from the respondents. They are currently registered in their names. The applicant seeks to claim that the said properties are matrimonial properties in the substantive matter. In my view, that sufficiently establishes that they are necessary parties on account of their proprietary interests as registered proprietors.
16. I therefore find that the Notice of Motion dated 7th April 2025 is hereby allowed in terms of prayer (1). The orders in prayers (2) and (3) are dismissed for the reasons stated above. Costs shall abide the outcome of the cause.
Dated, signed and delivered virtually this 7 th May 2026
R.E. OUGO
JUDGE
In the presence of:
For the Applicant
For the Respondent
Wilkister - C/A
HCFOS NO. E001 OF 2024-RULING 2
IN THE HIGH COURT OF KENYA AT BUNGOMA
MATRIMONIAL PROPERTY CAUSE NO. E001 OF 2024
EVERLYNE NASAMBU MAMAI--------------------------------------------------APPLICANT
-VERSUS-
PATRICK LUSENAKA LUKA---------------------------------------------------RESPONDENT
-AND-
VINCENT WEKESA MUKWANA--------------1 ST PROPOSED INTERESTED PARTY
LUCAS SIMIYU MANG’ENI--------------------2 ND PROPOSED INTERESTED PARTY
RULING
1. The applicant’s Notice of Motion dated 7 th April 2025, is brought under section 8 (1) (a) of the Matrimonial Property Act. It seeks the following prayers:
(1) THAT the intended interested parties/respondents be and are hereby enjoined to this suit as interested parties;
(2) THAT entries dated 12.03.2025 and 24.03.2025 over land parcel no. BOKOLI/CHWELE/3867 be cancelled for the title to revert to the names of the respondent namely PATRICK LUSENAKA LUKA;
(3) THAT entries dated 12.03.2025 and 24.03.2025 over land parcel no. BOKOLI/CHWELE/3238 be cancelled for the title to revert to the names of the respondent namely PATRICK LUSENAKA LUKA;
(4) THAT costs of this application be provided for and be borne by the respondent.
2. The application is supported by the grounds on the face of the Motion, together with the supporting affidavit and further affidavit of the applicant, sworn on 7th April 2025 and 27th September 2025, respectively. According to the applicant, she filed the matrimonial cause herein by way of an Originating Summons dated 27th May 2024, seeking the distribution of several assets, including land parcels no. BOKOLI/CHWELE/3238 and BOKOLI/CHWELE/3867. The Summons, however, has yet to be heard, as the file mysteriously disappeared. This prompted the court to order its reconstruction. During the pendency, it came to the applicant's attention that the respondent had proceeded to mischievously transfer those two parcels of land to third parties.
3. The applicant accuses the respondent of lacking respect for the court and the judicial process, as he was hell-bent on doing whatever it took to frustrate the matrimonial cause by ensuring that no assets are shared between the parties. In the applicant’s opinion, the respondent’s actions amounted to circumventing, pre-empting and scuttling this court’s decision on the distribution of the matrimonial properties. Finally, she stated that she responded, by way of objection, to the notice of intention to remove the caution, through her counsel’s letter dated 16th January 2025. She urged this court to allow the application, as no prejudice would be occasioned to the other parties.
4. The respondent filed his replying affidavit and supplementary affidavits, sworn on 30th June 2025 and 15th July 2025, respectively. He contended that on 11th May 2020, he disposed of land parcel no. BOKOLI/CHWELE/3867 to the proposed 1st interested party, having duly executed a sale agreement. He communicated this transaction to the applicant, then the respondent’s wife, who consented. On 5th January 2023, he obtained consent from the Nalondo Land Control Board to transfer land parcels no. BOKOLI/CHWELE/3867 and BOKOLI/CHWELE/3238 to the 1st and 2nd interested parties, respectively. He further stated that although the applicant placed cautions on the two parcels of land on 13th January 2023, pending the determination of Bungoma Divorce Cause No. 8 of 2022, those cautions were removed after the divorce cause was determined on 2nd May 2024.
5. The respondent recalled that, prior to removal of those cautions, he notified the applicant of his intention to do so on 17th December 2024. However, she did not respond to that notice. Be that as it may, at the time the applicant filed the present cause, the respondent had already executed the transfer forms and obtained the relevant consents from the Land Control Board.
6. The respondent averred that during the subsistence of their holy matrimony, the applicant never made any financial or material contributions towards the acquisition of the suit parcels of land. She was therefore not entitled to claim from them. In any event, the applicant had not demonstrated that the properties are matrimonial in nature. He further stated that the orders for cancellation were not plausible, as the Land Registrar was not enjoined in these proceedings. For those reasons, the respondent urged this court to dismiss the application.
7. At his party, the proposed 1st interested party filed his replying affidavit, sworn on 17th August 2025. He deposed that land parcel no. BOKOLI/CHWELE/3867 was sold to him on 11th May 2020 for Kshs. 3,700,000.00. He prayed that the application be dismissed.
SUBMISSIONS
8. At the hearing of the application on 29 th September 2025, Mr. Were Advocate appeared for the applicant while Miss. Nekesa Advocate held Mr. Otsiula’s brief, for the respondent. The proposed 1 st interested party appeared in person. The parties orally relied on their respective pleadings, in their entirety, urging this court to find in their favour.
Determination
9. I have considered the application and the responses and analysed the law. The applicant seeks to enjoin the two proposed interested parties to these proceedings. A perusal of her application reveals that the grounds in support of that prayer were not expressly articulated. However, it is inferred that the intention of the joinder of the two parties is premised upon her prayers to order for cancellation of the entries made in favour of the interested parties in respect to the suit parcels of land, namely BOKOLI/CHWELE/3867 and BOKOLI/CHWELE/3238.
10. According to the green cards produced in her affidavit, the restrictions on the two parcels of land, arising from the proceedings in Bungoma Divorce Cause No. 8 of 2022, were lifted on 27th February 2025. On 12th March 2025, the respective properties were registered in the names of the proposed interested parties, and title deeds were issued on 24th March 2025. Thereafter, on 1st April 2025, a restriction was placed on both properties on the strength of the pendency of the present proceedings.
11. From the pleadings herein, it is disputed by the respondent that the property is matrimonial in its nature on account of the fact that the applicant has not demonstrated contribution to its acquisition. Interestingly, at clause 9 of the sale agreement dated 11 th May 2020, annexed to the respondent’s and the 1 st proposed interested party’s affidavits, between them, shows that the respondent sought for spousal consent prior to the sale of the suit land. In my view, these averments cannot determine the issues at this stage as they call for evidence that needs interrogation. These issues are best determined when the substantive matrimonial cause is heard by the trial court.
12. It is therefore my view that the orders sought by the applicant shall seek a declaration that the two parcels of land are matrimonial property. That would be a drastic decision made at an interlocutory stage when it has not yet been determined whether the two parcels of land are matrimonial property by dint of section 2, as read with section 7 of the Matrimonial Property Act. In my view, those orders sought cannot be granted at this stage
13. Regarding the joinder of the proposed interested parties, under rule 4 of the Matrimonial Property Rules, any person may institute civil proceedings claiming any right or relief in relation to matrimonial property. From the wording of that provision, if any person may institute proceedings in relation to matrimonial property, then a person may be joined as a necessary party in relation to the same.
14. Under order 1, rule 6 of the Civil Procedure Rules, which rules apply to matrimonial causes, a plaintiff may join any party he or she so deems fit at any stage of the proceedings. Further, under order 1, rule 9, no such suit shall be defeated by the misjoinder or non-joinder of such party. It is only in certain instances that joinder will be refused as was stated by the court in Lucy Nungari Ngigi & 128 others vs. National Bank of Kenya Limited & another [2015] KEHC 6117 (KLR) as follows:
“But, joinder of parties may be refused where such joinder: will lead into practical problems of handling the existing cause of action together with the one of the party being joined; is unnecessary; or will just occasion unnecessary delay or costs on the parties in the suit. In other word, joinder of parties will be declined where the cause of action being proposed or the relief sought is incompatible to or totally different from existing cause of action or the relief. The determining factor in joinder of parties is that a common question of fact or law would arise between the existing and the intended parties. This is the test I shall apply in this case.”
15. In this case, it is not disputed that the proposed interested parties purchased the suit properties from the respondents. They are currently registered in their names. The applicant seeks to claim that the said properties are matrimonial properties in the substantive matter. In my view, that sufficiently establishes that they are necessary parties on account of their proprietary interests as registered proprietors.
16. I therefore find that the Notice of Motion dated 7th April 2025 is hereby allowed in terms of prayer (1). The orders in prayers (2) and (3) are dismissed for the reasons stated above. Costs shall abide the outcome of the cause.
Dated, signed and delivered virtually this 7 th May 2026
R.E. OUGO
JUDGE
In the presence of:
For the Applicant
For the Respondent
Wilkister - C/A
HCFOS NO. E001 OF 2024-RULING 2