1. Vide the Originating Summons on 9th August, 2024, the Claimant sought the following orders:-
(1) That the Joint ownership in respect of the properties known as Mombasa/Block XVI/1425 and 92 47938, subdivision No. 17008, Original No 11745/14, section IMN be severed.
(2) That the Joint title deed in respect to the property, namely Mombasa/Block XVI/25, be severed and a new title be issued solely in the name of the applicant herein;
(3) That the Joint title deed in respect to the property namely CRNO 47938, subdivision No. 17008 Original Number 11745/K, section 1 Mainland North be severed and the same be held by the Applicant herein in trust for the issues of the marriage namely Salman said Mohamed Said and Salma Mohamed Said.
(4) That the Court be pleased to order that the Respondent retain the property in Bakarini.
(5) That the Deputy Registrar be empowered to execute any document that the Respondent may refuse/decline to execute in the process of severing the titles herein.
(6) That this honourable Court be pleased to make such further orders as the interest of justice may require.
(7) That the Respondent be condemned to pay the costs of this suit.
2. The Claimant averred that she got married to the respondent on 10th October, 2011. During the course of the marriage the parties acquired the suit properties with the contribution of both parties, both directly and indirectly. The parties are now divorced. The claimant has the custody of the children.
3. The parties have since divorced. The claimant is apprehensive that the respondent may sell the suit properties and, for that reason, desire to have the Court issue the orders sought.
4. To safeguard the interest of the minor children, the claimant proposed that CR NO 47938, subdivision No 17008, original No 11745/14, section 1, Mainland North be held in trust for the children, and she be allowed to develop the same for the benefit of the said issue.
5. In the affidavit in support of the Originating Summons, the claimant averred that she procured an Islamic marriage with the respondent on 10th October, 2011, which was dissolved under the Islamic law in June 2023. During the subsistence of the marriage, the parties got two issues, fraternal twins Salman Mohamed Said and Salmin Mohamed Said born on 6th April, 2013 whose birth certificates she exhibited. She also produced certificates of titles for the two properties whose details have been given enough showing that born are jointly owned. She deposed that the third property had not been given enough showing that both are jointly owned.
6. She deposed that the third property had not been transferred to them but was in the occupation of the respondent’s sister or cousin. She urged that the property be registered in the name of the respondent since his relatives were in occupation of it.
7. The Claimant averred that at the time the properties were acquired, both she and the respondent were in gainful employment. She was, therefore, able to contribute to her proposed mode of division of the matrimonial property. She urged that it was the fairest and that “none of the parties will suffer any prejudice in the event the application herein is granted”.
8. Even though the respondent was served with the Originating Summons, he failed to file a response to the same. The matter, therefore, proceeded as an undefended cause. Directions were issued to that effect on 25th November, 2024. On 27th January, 2025, the suit was heard. The Court notes that the Respondent was served as evidenced by the affidavit of service.
9. In her testimony, the claimant stated that she is a nurse assistant based in Oslo, Norway. She averred that her Islamic marriage to the deceased was dissolved in June 2023. It was her evidence that her attempt to have the properties divided amicably had failed as the respondent did not want to talk to her and had even blocked her. He had tried all means to procure an amicable resolution without success. She thus prayed that the Originating Summons be allowed.
10. Upon the conclusion of the hearing, the Court directed the Claimant’s counsel to file and serve Written Submissions. The claimant’s counsel duly complied by filing Written Submissions dated 12th February, 2025.
11. In the said submissions it was submitted that the issues for determination for determination was how the 3 matrimonial properties could be severed.
12. The claimant submitted that since the respondent pronounced the Islamic divorce, there was no marriage. Therefore, the union had been dissolved. It was, therefore, in the interest of justice that joint ownership in respect of the suit properties be severed.
13. Regarding Title No Mombasa/Block XVI/1425, it was urged that the same be in the claimant’s name as it would not be reasonable for them to own it jointly.
14. Counsel submitted that CR NO 47938 be secured for the children as originally intended. The children are under the care of the claimant. Accordingly, it was urged that the said property should be held in trust for them by the claimant. This, it was urged, would not cause the Respondent any prejudice.
15. On the roperty near Quabaa Mosque and school it was submitted that the same be registered in the name of the Respondent as it was occupied by his relatives.
16. Although the cause was undefended, I must nevertheless consider it on its merits.
17. 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.
18. 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.
19. 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.”
20. 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. ”.
21. 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.”
22. 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.”
23. Applying the above provisions of the law to the instant matter leads me to the ineluctable conclusion that this matter has merits.
24. 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 Islamic law. It is evident that under the said law all the respondent was required to do was to pronounce the talak three times, something that he apparently did.
25. There is no dispute that all the three properties, 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.
26. Given that the claimant was in employment as a nursing assistant in Norway and earned, going by what she stated, a good salary, it is my view that she had the means to contribute towards the purchase and the development of the matrimonial properties. 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 that she took care of the issue of the marriage as the primary care giver.
27. 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.”
28. 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’.”
29. 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.”
30. 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.
31. 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.
32. In the circumstance, I find and hold that Title Mombasa/Block XVI/1425, CR No 47938, subdivision No. 17008, Original No 11745/14, Section I MN and the houses in Mvita near Qubaa School and Mosque are matrimonial properties. I declare that these properties are jointly owned by the parties hereto equally on a 50:50 basis.
33. Since it isn’t possible for these properties to be shared I am inclined to accept the mode of division proposed by the Claimant as it is unopposed and also for being fair.
34. In the circumstances I find and hold that the Originating Summons as merits. I allow the same on the terms below.
35. The orders that comment themselves to me are that:-
1. Title No. Mombasa/Block XVI/1425 be transferred to the Claimant absolutely;
2. Title No. CR NO 47938 be registered in the name of the claimant and the Respondent jointly as trustees for their children. Since the children are minors, it is necessary that there be two trustees for the property; and
3. The Mvita property near the Quabaa school and Mosque is hereby declared as belonging to the Respondent absolutely.
36. I direct that the respondent signs documents of transfer within 30 days of the date hereof. In the event he is unable to do so that the Deputy Registrar of this Court or the Land Registrar, Mombasa shall do so on his behalf.
37. Since this is a dispute between former spouses, I do not think that it would be prudent to issue orders as to costs. In the circumstances, each party shall bear her/his own costs of the suit.
38. Orders accordingly
Dated and signed at Mombasa this 28th day of March 2025. Delivered virtually through Microsoft TEAMS.
(1) That the Joint ownership in respect of the properties known as Mombasa/Block XVI/1425 and 92 47938, subdivision No. 17008, Original No 11745/14, section IMN be severed.
(2) That the Joint title deed in respect to the property, namely Mombasa/Block XVI/25, be severed and a new title be issued solely in the name of the applicant herein;
(3) That the Joint title deed in respect to the property namely CRNO 47938, subdivision No. 17008 Original Number 11745/K, section 1 Mainland North be severed and the same be held by the Applicant herein in trust for the issues of the marriage namely Salman said Mohamed Said and Salma Mohamed Said.
(4) That the Court be pleased to order that the Respondent retain the property in Bakarini.
(5) That the Deputy Registrar be empowered to execute any document that the Respondent may refuse/decline to execute in the process of severing the titles herein.
(6) That this honourable Court be pleased to make such further orders as the interest of justice may require.
(7) That the Respondent be condemned to pay the costs of this suit.
2. The Claimant averred that she got married to the respondent on 10th October, 2011. During the course of the marriage the parties acquired the suit properties with the contribution of both parties, both directly and indirectly. The parties are now divorced. The claimant has the custody of the children.
3. The parties have since divorced. The claimant is apprehensive that the respondent may sell the suit properties and, for that reason, desire to have the Court issue the orders sought.
4. To safeguard the interest of the minor children, the claimant proposed that CR NO 47938, subdivision No 17008, original No 11745/14, section 1, Mainland North be held in trust for the children, and she be allowed to develop the same for the benefit of the said issue.
5. In the affidavit in support of the Originating Summons, the claimant averred that she procured an Islamic marriage with the respondent on 10th October, 2011, which was dissolved under the Islamic law in June 2023. During the subsistence of the marriage, the parties got two issues, fraternal twins Salman Mohamed Said and Salmin Mohamed Said born on 6th April, 2013 whose birth certificates she exhibited. She also produced certificates of titles for the two properties whose details have been given enough showing that born are jointly owned. She deposed that the third property had not been given enough showing that both are jointly owned.
6. She deposed that the third property had not been transferred to them but was in the occupation of the respondent’s sister or cousin. She urged that the property be registered in the name of the respondent since his relatives were in occupation of it.
7. The Claimant averred that at the time the properties were acquired, both she and the respondent were in gainful employment. She was, therefore, able to contribute to her proposed mode of division of the matrimonial property. She urged that it was the fairest and that “none of the parties will suffer any prejudice in the event the application herein is granted”.
8. Even though the respondent was served with the Originating Summons, he failed to file a response to the same. The matter, therefore, proceeded as an undefended cause. Directions were issued to that effect on 25th November, 2024. On 27th January, 2025, the suit was heard. The Court notes that the Respondent was served as evidenced by the affidavit of service.
9. In her testimony, the claimant stated that she is a nurse assistant based in Oslo, Norway. She averred that her Islamic marriage to the deceased was dissolved in June 2023. It was her evidence that her attempt to have the properties divided amicably had failed as the respondent did not want to talk to her and had even blocked her. He had tried all means to procure an amicable resolution without success. She thus prayed that the Originating Summons be allowed.
10. Upon the conclusion of the hearing, the Court directed the Claimant’s counsel to file and serve Written Submissions. The claimant’s counsel duly complied by filing Written Submissions dated 12th February, 2025.
11. In the said submissions it was submitted that the issues for determination for determination was how the 3 matrimonial properties could be severed.
12. The claimant submitted that since the respondent pronounced the Islamic divorce, there was no marriage. Therefore, the union had been dissolved. It was, therefore, in the interest of justice that joint ownership in respect of the suit properties be severed.
13. Regarding Title No Mombasa/Block XVI/1425, it was urged that the same be in the claimant’s name as it would not be reasonable for them to own it jointly.
14. Counsel submitted that CR NO 47938 be secured for the children as originally intended. The children are under the care of the claimant. Accordingly, it was urged that the said property should be held in trust for them by the claimant. This, it was urged, would not cause the Respondent any prejudice.
15. On the roperty near Quabaa Mosque and school it was submitted that the same be registered in the name of the Respondent as it was occupied by his relatives.
16. Although the cause was undefended, I must nevertheless consider it on its merits.
17. 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.
18. 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.
19. 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.”
20. 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. ”.
21. 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.”
22. 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.”
23. Applying the above provisions of the law to the instant matter leads me to the ineluctable conclusion that this matter has merits.
24. 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 Islamic law. It is evident that under the said law all the respondent was required to do was to pronounce the talak three times, something that he apparently did.
25. There is no dispute that all the three properties, 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.
26. Given that the claimant was in employment as a nursing assistant in Norway and earned, going by what she stated, a good salary, it is my view that she had the means to contribute towards the purchase and the development of the matrimonial properties. 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 that she took care of the issue of the marriage as the primary care giver.
27. 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.”
28. 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’.”
29. 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.”
30. 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.
31. 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.
32. In the circumstance, I find and hold that Title Mombasa/Block XVI/1425, CR No 47938, subdivision No. 17008, Original No 11745/14, Section I MN and the houses in Mvita near Qubaa School and Mosque are matrimonial properties. I declare that these properties are jointly owned by the parties hereto equally on a 50:50 basis.
33. Since it isn’t possible for these properties to be shared I am inclined to accept the mode of division proposed by the Claimant as it is unopposed and also for being fair.
34. In the circumstances I find and hold that the Originating Summons as merits. I allow the same on the terms below.
35. The orders that comment themselves to me are that:-
1. Title No. Mombasa/Block XVI/1425 be transferred to the Claimant absolutely;
2. Title No. CR NO 47938 be registered in the name of the claimant and the Respondent jointly as trustees for their children. Since the children are minors, it is necessary that there be two trustees for the property; and
3. The Mvita property near the Quabaa school and Mosque is hereby declared as belonging to the Respondent absolutely.
36. I direct that the respondent signs documents of transfer within 30 days of the date hereof. In the event he is unable to do so that the Deputy Registrar of this Court or the Land Registrar, Mombasa shall do so on his behalf.
37. Since this is a dispute between former spouses, I do not think that it would be prudent to issue orders as to costs. In the circumstances, each party shall bear her/his own costs of the suit.
38. Orders accordingly
Dated and signed at Mombasa this 28th day of March 2025. Delivered virtually through Microsoft TEAMS.