MATRIMONIAL E001 OF 2024
JUDGMENT
1. The Applicant in this case G.G.N.N filed the Originating Summons (OS) dated 31 st July 2024 for the following declarations;
(i) THAT a declaration be issued that the properties listed herein with improvements and the buildings thereon were acquired, improved, developed and maintained by the parties jointly and the said properties are held by the Respondent in trust for the Applicant being:
(a) Land Title Number: Taita Taveta/Lake Jipe Scheme/285
(b) Land Title Number: Taita Taveta Scheme Phase I/1165.
(c) Land Title Number: Voi Municipality Block I/1348.
(d) Land Title Number: Voi/Ndara ‘A’/3380.
(e) Land Title Number: Voi/Ndara ‘’A/3514.
(f) Land Title Number: Mbololo/Mraru/4019.
(g) Land Title Number: Mbololo/Tausa/5178 – 5209
(h) Land Title Number: NEW TAVETA TOWN/;2894.
(i) Motor vehicle KDD 434K.
(j) Shares and business goodwill held by the Respondent at Utamaduni Pharmaceuticals Limited (CPR//2015/303462)
(ii) THAT a declaration be made that the Applicant is the legal and beneficial owner of and or with entitlement of fifty (50%) per cent interest or equal share in the matrimonial properties known as:
(a) Land Title Number: Taita Taveta/Lake Jipe Scheme/285
(b) Land Title Number: Taita Taveta Shceme Phase I/1165.
(c) Land Title Number: Voi Municipality Block I/1348.
(d) Land Title Number: Voi/Ndara ‘A’/3380.
(e) Land Title Number: Voi/Ndara ‘’A/3514.
(f) Land Title Number: Mbololo/Mraru/4019.
(g) Land Title Number: Mbololo/Tausa/5178 – 5209
(h) Land Title Number: NEW TAVETA TOWN/;2894.
(i) Motor vehicle KDD 434K.
(j) Shares and business goodwill held by the Respondent at Utamaduni Pharmaceuticals Limited (CPR//2015/303462)
(iii) THAT this Honourable Court be pleased to order that the matrimonial properties listed above be settled in proportions aforesaid or as the Court may order.
(iv) THAT the Respondent to settle the costs of the summons.
2. The Originating Summons is supported by the affidavit of the Applicant in which she deposed as follows:-
(i) I am a female adult of sound mind and the Applicant herein well conversant with the facts as they relate to the matters before this Honorable Court and I wish to state as follows.
(ii) I have read, understood and have had the tenor and meaning of the application before this court (herein referred to as “the Application”) explained to me by my Advocates on record and wish to assert as follows in support of the same. My averments herein are based on my own knowledge and information, and I have also disclosed the sources of information where applicable.
(iii) I and the Respondent met in the United Kingdom and began courting and cohabiting as husband and wife in the year 2013. Immediately thereafter, we solemnized our traditional/customary marriage on or about 22 nd August 2015 through the Kikuyu customary rites.
(iv) During the subsistence of our marriage, I was working for gain as in the United Kingdom as a medical officer and the Respondent is equally a medical officer at the County Government of Taita Taveta. I was however domiciled in the Republic of Kenya and would occasionally visit the Respondent at our then matrimonial home in Mombasa.
(v) However, due to the Respondent’s cruelty, ill-treatment towards me and irreconcilable marital differences, I and the Respondent separated sometime in 2019 and eventually formalized our divorce vide Divorce Cause No. E1385 of 2021 on 29 th November 2023.
(vi) On various occasions as shall be demonstrated at the hearing, the Respondent requested from me colossal financial support which he intimated to me that he would use to invest in various projects in the Republic of Kenya and which support I frequently sent to the Respondent.
(vii) Through the aforementioned support and contribution, the Respondent and I acquired the following matrimonial properties and the same were/are registered in the Respondent’s names:-
(a) Land Title Number: Taita Taveta/Lake Jipe Scheme/285
(b) Land Title Number: Taita Taveta Shceme Phase I/1165.
(c) Land Title Number: Voi Municipality Block I/1348.
(d) Land Title Number: Voi/Ndara ‘A’/3380.
(e) Land Title Number: Voi/Ndara ‘’A/3514.
(f) Land Title Number: Mbololo/Mraru/4019.
(g) Land Title Number: Mbololo/Tausa/5178 – 5209
(h) Land Title Number: NEW TAVETA TOWN/;2894.
(i) Motor vehicle KDD 434K.
(j) Shares and business goodwill held by the Respondent at Utamaduni Pharmaceuticals Limited (CPR//2015/303462)
(viii) The Respondent through material misrepresentation and unknown to me registered all the above matrimonial property in his sole names which I only discovered after our marriage hit rock bottom.
(ix) I immediately lodged cautions on the aforementioned matrimonial properties to safeguard my spousal rights after the Respondent threatened to dispose of all the properties together with concealing material facts associated with some of the properties to my detriment.
(x) I would like to have the court declare that I am entitled to the properties and all income received from the same as well as proceeds in any of the above accounts on the basis of my financial and non-financial contribution as follows:-
(a) That I and the Respondent are both medical officers by profession and were working for gain during the subsistence of our marriage.
(b) That when the Respondent and I got married in 2015, I was working in the United Kingdom whereas the Respondent was working at the County Government of Taita Taveta.
(c) That we were both starting up financially and we applied our pay into our expenses and savings. We equally rented a house in Mombasa which at the time was our matrimonial home where I would frequently visit on during my work recess.
(d) That as evidenced from the above mentioned remittances and many more that I could not gather to produce before this court, I regularly sent my savings and part of my pay to the Respondent who was at the time in Kenya and intimated that he would wisely invest the same in various projects, properties as well as start a pharmaceutical business.
(e) That I would frequently travel to and from Kenya to furnish our matrimonial home and oversee operations at the pharmacy businesses within Mombasa.
(f) That I have provided love, companionship and support to the Respondent during the subsistence of our marriage.
(g) That I also managed our home and all domestic requirements to a very high degree.
(xi) From the above, I verily believe that I have contributed directly and indirectly towards the acquisition, development and maintenance of the matrimonial properties.
(xii) I am equally aware that the Respondent has sold some of the properties that would comprise of matrimonial property without my consent as dictated by law and I shall adduce such material evidence before this Honourable Court.
(xiii) I verily believe that I am entitled to 50% of the income and the proceeds from the matrimonial properties.
3. The Respondent F.W.K filed a Replying Affidavit sworn on 20 th May 2025 opposing the OS in which he deposed as follows:-
(i) THAT I am the Respondent herein and therefore competent to swear this affidavit.
(ii) THAT I have read the Originating Summons dated 31.7.2024 and I do oppose it strongly.
(iii) THAT the divorce court did say that there was no marriage between the parties herein but a presumption of one.
(iv) THAT the applicant was not living with the respondent continuously but occasionally as she was solely based in UK and the respondent based in Kenya.
(v) THAT the Applicant despite being married to the Respondent never behaved like a married woman as she would come stay with the respondent for a few weeks and leave him to stay alone in their house.
(vi) THAT the respondent clearly stated in the divorce proceedings clearly showing that she was unfaithful in their union and therefore made things very difficult for the respondent.
(vii) THAT the applicant did not meet with the respondent in UK as she alleges as the respondent has never studied in the UK.
(viii) THAT the respondent was previously married and their union blessed with a baby girl “Hope”.
(ix) THAT by the time the applicant was entering into a marriage in August 2015, the respondent had clearly accumulated wealth from his previous union.
(x) THAT even as we speak the respondent is currently married to another lady who they have a child and living together.
(xi) THAT the applicant is not being honest as some properties she has listed were acquired by the respondent before he met the applicant back in 2012, 2013, 2014 and the applicant was not in the respondent’s life.
(xii) THAT the applicant has listed properties that don’t belong to the applicant and we shall put the applicant to strict proof thereof.
(xiii) THAT the applicant had medical issues which are her fallopian tubes were blocked and couldn’t sire a child and therefore the respondent used to take care of her medical bills and when the bills became too high, the applicant would chip in and sent him money through M-pesa and electronic transfers these are the M-pesa and electronic transfers sent to the applicant that the applicant alleges she was making contribution.
(xiv) THAT the applicant also used to educate her niece in an international school and she would tell the respondent in order not to raise suspicious on her end to avoid tax. She would send the respondent money through M-pesa and the respondent would withdraw the money and give it to her.
(xv) THAT all the money sent to the respondent by the applicant was later given.
(xvi) THAT it is not possible that properties were only put in the respondent’s name as the respondent used to even educate the applicant since before they met the applicant did not have any education past form four. It is the respondent who helped her get her college certificates.
(xvii) THAT the applicant has crippled down the respondent by cautioning all his properties and interfering with his place of work, all in the aim to get him fired and jobless.
(xviii) THAT the applicant wanted the respondent to sell all his properties, quit job and follow her in the UK but when he refused, the applicant has vowed to destroy him completely.
(xix) THAT the applicant is not being genuine as she is not answering why the properties she is listing, she is not listed in any of them yet she was sending money, it doesn’t make sense for someone who is highly educated.
(xx) THAT there so many things the respondent did to the applicant that are greater than even the properties listed and for instance educating her, giving her a baby through I.V.F (artificial insemination) and taking care of all her medical bills that cannot be measured by using money and the respondent is not seeking for a refund.
(xxi) THAT the applicant is a dishonest person and gives false information even to authorities, such as using two different dates of birth and sets names. For instance, her Kenyan national documents identify her as born in 1982 and her names appear as Gladys Nungally Ndungu, while her Irish National documents identify her as Gladys Wairimu Gathera born in 1987 and the respondent is wiling to bring documents to proof the same.
(xxii) THAT the respondent in helping the applicant seeks medical treatment for her infertility problems, undertook expensive trips to Germany in 2016 and UK in 2018 at the respondent’s costs which the applicant had promised to refund, but upon refunding some of it to the respondent the applicant is now claiming to be a contribution to the respondent’s properties.
(xxiii) THAT the respondent solely paid for their joint flat in Mombasa County for the 3 years they were together including rent, electricity bills and all household bills, where the applicant promised to refund, but upon sending some of it she is now claiming to be a contribution to the respondent’s owned properties.
(xxiv) THAT the respondent helped the applicant acquire properties in Ongata Rongai and Mai Mahiu during their time together which she concealed and failed to disclose.
(xxv) THAT the respondent helped bail the applicant when she was in tax evasion problems and/or arrears with the UK authorities with her company namely GWCARE LTD in 2017, where the applicant was the director of the said company which she had promised to refund him, but upon sending some of the monies she is now twisting it and claiming it was to be a contribution to the respondent’s owned properties.
(xxvi) THAT the applicant always insisted that she be given all monies in cash because she had TAX issues in the UK and didn’t want to deal with bank accounts so she mostly would send the applicant money through mpesa or bank transfer then would insist on the respondent giving her back in cash so that the respondent would not have a trace back that she had received. The applicant was so deceitful and dishonest in their relationship had the respondent known it would turn out or through electronic transfers as she used to do to him so he can have evidence as well.
(xxvii) THAT from the onset the applicant was interested in conning the respondent and taking away his properties and that is why she skimmed all this deceitful plans and now she is trying to cripple the respondent down and take away his hard earned properties.
(xxviii) THAT the applicant has not shown any contribution to warrant her get the order sought.
(xxix) THAT it is the best interest of justice to have the Originating Summons dismissed with costs as it is brought in bad faith.
4. The case proceeded by viva voce evidence. The Applicant testified as PW1. She adopted her witness statement as her evidence in chief.
5. In the statement, the applicant, a female medical officer working in the United Kingdom, stated that she was of sound mind and familiar with the facts of the case.
6. She explained that she met the respondent, F W K, while they were both students in the United Kingdom in 2013 and they began a romantic relationship. Their customary marriage under Kikuyu rites was solemnized on 22nd August 2015.
7. She further stated that during the marriage, she contributed both financially and non-financially to the acquisition, development, and maintenance of their property.
8. As both were at the start of their medical careers, they pooled their resources. The applicant regularly sent substantial funds from the UK to the respondent via WorldRemit, with his assurance that the money was being invested in properties and businesses in Kenya for their mutual benefit.
9. She specified that some of these funds were used to establish Utamaduni Pharmaceuticals Limited, a company in which the respondent holds shares and which she believed now operated three branches.
10. Despite her contributions, she discovered after the marriage breakdown that several properties and assets were registered solely in the respondent's name.
11. These included eight separate land titles in Taita Taveta and Voi, a motor vehicle, and the shares and business goodwill of Utamaduni Pharmaceuticals Limited.
12. Upon confronting the respondent, he became hostile and threatened to dispose of the properties, leading her to lodge cautions against them to protect her interests.
13. The applicant stated that the marriage deteriorated due to the respondent's cruelty and irreconcilable differences, resulting in a separation in 2019 and a formal divorce on 29th November 2023. Following the divorce, she realized he had already begun disposing of some properties without her knowledge.
14. She believed she was entitled to a 70% share of all matrimonial property and any income derived from it, based on her direct financial support for investments, her management of the home, her oversight of business operations, and her provision of companionship. She cited Sections 7 and 9 of the Matrimonial Property Act, 2013 as the basis for her claim.
15. Consequently, she sought several reliefs from the court: a declaration that the listed assets were matrimonial property; a declaration of her 70% entitlement; an order for the transfer of that share; an order for the respondent to account for and compensate her for any properties already sold; and any other relief the court deemed fit.
16. She indicated her intention to present further evidence at the hearing.
17. In cross-examination PW1 said she was married to the Respondent from 2015 August to 2023.
18. She said they divorced in 2023. She said before the divorce they were separated between 2019 and 2020.
19. She said she used to work in UK and she would come to Kenya to invest the money.
20. The Respondent testified as DW1. He adopted his witness statement dated 27 th June 2025 as his evidence in chief.
21. In the said statement, F W K, a registered pharmacist, vehemently opposed the applicant's claims as based on misrepresentations.
22. He states he was trained in India and began his career in Kenya in 2008, becoming fully registered by 2010, and provides employment documents from 2013 to refute the applicant's claim that he was a student in the UK that year.
23. He categorically denies ever studying or residing in the United Kingdom and asserts that the applicant is fabricating the timeline of their relationship.
24. He states they first met in 2009 in Nairobi, had sporadic contact until reconnecting in 2015, followed by a customary introduction in August 2015 and cohabitation until late 2018.
25. He raises serious concerns about the applicant's identity, citing discrepancies between her Kenyan ID and Irish passport.
26. Regarding the nature of their relationship, he states the applicant was permanently based in the UK with only intermittent visits to Kenya and did not continuously cohabit as a wife.
27. He emphasizes that a Divorce Court has already found there was no valid marriage between them, only a presumption of one, which was subsequently dissolved.
28. He further cites the applicant's unfaithful conduct as having made the relationship difficult.
29. On the subject of property and business, he states he independently founded Utamaduni Pharmaceuticals in April 2014, acquiring it with a loan and personal savings, and incorporated it in August 2015, all before cohabitation began.
30. He asserts the applicant made no contribution to this business. He details that he acquired several properties solely through his own means before their cohabitation commenced in August 2015.
31. These properties include: Title no. VOI/NDARA "A"/3514, registered on 12th December 2013 for Ksh 400,000; Title No. VOI/NDARA "A"/3380, registered on 22nd July 2013 for Ksh 200,000; and Title No. VOI MUNISIPALITY BLOCK 1/1348, registered on 20th October 2013 for Ksh 200,000, on which he later secured a mortgage loan of Ksh 9,500,000 from his employer to build a house.
32. He concluded that the applicant's claims of joint investments are unsubstantiated and that any funds she sent were for specific purposes, not investments in his assets.
33. In cross-examination, DW1 said he started cohabiting with the Applicant in August 2015.
34. He said prior to 2015, he knew the Applicant as a patient who used to order medicine from his pharmacy.
35. The Respondent (DW1) agreed the divorce was granted on 29 th November 2023.
36. He also agreed that the Applicant used to send him money from 2015 to 2019.
37. He said that money was a loan the Applicant was refunding. He said she did not contribute to the acquisition of any of the properties.
38. He said he bought some of the properties through Afya Sacco.
39. The parties filed written submissions as follows; The Applicant, G G N N, submitted that she seeks a fair division of assets acquired during her marriage to the Respondent, F W K, which lasted from approximately 2014/2015 until their divorce on 29 November 2023.
40. The Applicant argues that the properties in question, including several parcels of land, a motor vehicle, and a pharmaceutical business, constitute matrimonial property.
41. She asserts her entitlement to a beneficial interest based on her substantial contributions, both financial and non-financial, throughout the marriage.
42. The Applicant's case is grounded in the Matrimonial Property Act, 2013, which operationalizes the constitutional principle of equality in marriage.
43. The law requires that property division be based on proven contribution, not on an automatic presumption of equal sharing.
44. The Applicant has provided evidence, notably through World Remit transfer records, demonstrating regular and sizeable monetary remittances from her to the Respondent that coincide with the acquisition and development of the disputed assets.
45. She contends the Respondent's claim that these funds were loans is unsupported by any documentary evidence such as agreements or repayment records.
46. Furthermore, the Applicant highlights her significant non-monetary contributions in managing the household, supporting the family business, and providing care, which enabled the Respondent to pursue economic activities.
47. As most assets are registered solely in the Respondent's name, the Applicant invokes the statutory presumption of a trust in her favour, which the Respondent has failed to rebut with convincing proof of exclusive financing.
48. The Applicant respectfully urges the Court to examine each asset individually, considering the chronology of acquisition and her documented inputs.
49. She does not seek a mechanical 50% division but rather an equitable apportionment reflecting her proven contributions.
50. Specifically, she submits that she is entitled to a beneficial share of not less than 60% across the properties, and an equal 50% share in the matrimonial home and the family pharmacy business.
51. She also requests that the Respondent provide accounts for any assets he may have disposed of unilaterally and that he bear the costs of the suit.
52. In conclusion, the Applicant prays for declarations and orders that recognize her contributions, affirm the assets as matrimonial property, and award her a corresponding share, thereby giving practical effect to the constitutional guarantee of equality at the dissolution of marriage
53. The Respondent submitted that the court should reject the Applicant's claim for a share of the listed properties.
54. The Respondent's position is that the Applicant is entitled to nothing, and the Originating Summons should be dismissed.
55. That the case is built on several interconnected premises. Firstly, the Respondent challenges the very existence of a formal marriage, noting the union was a presumed customary marriage that lasted only from August 2015 to 2017, approximately three years, during which they cohabitated for merely three months before the Applicant relocated to the United Kingdom.
56. Consequently, any property acquired by the Respondent outside this narrow window, whether before August 2015 or after 2017, cannot be considered matrimonial property subject to division.
57. Secondly, the Respondent disputes the Applicant's contribution to the acquisition of any assets. He asserted that the money sent by the Applicant was not for property investment but for specific personal purposes: to manage her tax affairs, cover her medical expenses and trips for IVF treatment, pay rent, and fund school fees for her relatives.
58. The Respondent provided financial records to substantiate that he alone acquired the properties through loans and personal funds.
59. Furthermore, the Respondent highlights that the Applicant purchased properties in her own name without his knowledge, undermining her claim of joint enterprise.
60. Thirdly, the Respondent systematically addresses each listed asset, arguing many should be excluded. Properties like Voi Municipality Block 1/1348, Mbololo/Muraru/4019, and Voi/Ndara "A"/3380 were purchased before the union began.
61. The motor vehicle KDD 434K was bought in 2021, after the relationship had ended and divorce proceedings were underway, and has since been sold.
62. The business, Utamaduni Pharmaceuticals Ltd, was registered and incorporated before the presumed marriage. For other properties, like Mbololo/Tausa/5178-5209, the Applicant allegedly provided no proof of ownership or title documents.
63. Finally, the Respondent attacks the Applicant's character and motives, alleging she entered the relationship with a hidden agenda to swindle him, used multiple identities, and has been ungrateful and dishonest.
64. Citing legal principles, the Respondent argues that equity requires clean hands and that a 50/50 division is not automatic but must reflect actual contribution and the circumstances of the marriage, which here was brief, distant, and devoid of genuine financial or domestic partnership from the Applicant.
65. In conclusion, the Respondent prays for the dismissal of the application with costs.
66. I have carefully considered the pleadings, the viva voce evidence adduced by both parties, the documentary exhibits, and the written submissions filed herein.
67. The main issue for determination in this case is whether the properties listed by the Applicant constitute matrimonial property in which she holds a beneficial interest by virtue of her contribution, either financial or non-financial, during the subsistence of her relationship with the Respondent.
68. The legal framework governing this dispute is the Matrimonial Property Act, No. 49 of 2013. Section 2 of the Act defines "matrimonial property" as the matrimonial home or homes and household goods and effects, and any other immovable and movable property jointly owned and acquired during the marriage.
69. Section 7 provides that 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.
70. Contribution is expansively defined under Section 2 to include monetary and non-monetary contributions, such as domestic work and management of the matrimonial home.
71. A preliminary issue raised by the Respondent concerns the nature of the union. He relies on the judgment in the divorce cause to argue that there was no valid customary marriage but merely a presumption of one.
72. However, for the purposes of the Matrimonial Property Act, the definition of "spouse" in Section 2 includes a man and a woman who are married to each other.
73. The decree of divorce issued on 29th November 2023 dissolved whatever union existed between the parties.
74. The Matrimonial Property Act applies to the division of property upon the dissolution of a marriage, and the fact of dissolution is not in dispute in this case.
75. Consequently, this Court’s mandate is to determine the beneficial interests in the property acquired during the period of the presumed marriage, which both parties agree commenced in August 2015 and ended with their separation in 2019.
76. The central principle in the division of matrimonial property is contribution, not automatic equality.
77. Article 45(3) of the Constitution, which guarantees the equal rights of spouses at the time of marriage, during the marriage, and at its dissolution, does not prescribe a 50/50 division but mandates a fair and equitable distribution based on proved contribution.
78. The burden of proving contribution lies with the spouse asserting it.
79. The Applicant, PW1, testified that from 2015 to 2019, she regularly remitted substantial funds from the United Kingdom to the Respondent in Kenya. She produced World Remit transfer records as evidence.
80. Her case is that these funds were pooled with the Respondent’s income for joint investment in property and business, as per their mutual understanding.
81. She also asserted non-financial contributions in managing the home and supporting the Respondent.
82. The Respondent, DW1, counters that these funds were not contributions but were for specific purposes such as reimbursements for her medical bills (including IVF treatment), rent for their flat, bailout for her tax issues in the UK, and money for her niece’s school fees which she allegedly channeled through him to avoid tax implications.
83. He contends that all monies sent were ultimately returned to her in cash.
84. Upon evaluation of the evidence, the Court finds the Respondent’s explanation for the financial transfers lacking in credibility and corroboration.
85. His claim that he received large sums only to physically hand back the cash to the Applicant, with no independent evidence of such repayments, is unconvincing.
86. A party’s mere denial of contribution is insufficient; they must provide evidence to rebut the claim.
87. The Respondent has not provided any loan agreements, records of cash withdrawals corresponding to the alleged repayments, or consistent documentation to support his narrative.
88. Conversely, the Applicant’s remittance records are contemporaneous and concrete.
89. In the context of a spousal relationship where parties are building a life together, the Court is inclined to accept that these regular transfers were indeed contributions towards their joint welfare and acquisitions, as alleged by the Applicant.
90. Financial contribution need not be directly tied to a specific asset but can be towards the general welfare of the family, freeing up the other spouse’s resources for investment.
91. Regarding the specific properties, the Court will apply the chronology established. The Respondent has provided credible documentary evidenc
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JUDGMENT
1. The Applicant in this case G.G.N.N filed the Originating Summons (OS) dated 31 st July 2024 for the following declarations;
(i) THAT a declaration be issued that the properties listed herein with improvements and the buildings thereon were acquired, improved, developed and maintained by the parties jointly and the said properties are held by the Respondent in trust for the Applicant being:
(a) Land Title Number: Taita Taveta/Lake Jipe Scheme/285
(b) Land Title Number: Taita Taveta Scheme Phase I/1165.
(c) Land Title Number: Voi Municipality Block I/1348.
(d) Land Title Number: Voi/Ndara ‘A’/3380.
(e) Land Title Number: Voi/Ndara ‘’A/3514.
(f) Land Title Number: Mbololo/Mraru/4019.
(g) Land Title Number: Mbololo/Tausa/5178 – 5209
(h) Land Title Number: NEW TAVETA TOWN/;2894.
(i) Motor vehicle KDD 434K.
(j) Shares and business goodwill held by the Respondent at Utamaduni Pharmaceuticals Limited (CPR//2015/303462)
(ii) THAT a declaration be made that the Applicant is the legal and beneficial owner of and or with entitlement of fifty (50%) per cent interest or equal share in the matrimonial properties known as:
(a) Land Title Number: Taita Taveta/Lake Jipe Scheme/285
(b) Land Title Number: Taita Taveta Shceme Phase I/1165.
(c) Land Title Number: Voi Municipality Block I/1348.
(d) Land Title Number: Voi/Ndara ‘A’/3380.
(e) Land Title Number: Voi/Ndara ‘’A/3514.
(f) Land Title Number: Mbololo/Mraru/4019.
(g) Land Title Number: Mbololo/Tausa/5178 – 5209
(h) Land Title Number: NEW TAVETA TOWN/;2894.
(i) Motor vehicle KDD 434K.
(j) Shares and business goodwill held by the Respondent at Utamaduni Pharmaceuticals Limited (CPR//2015/303462)
(iii) THAT this Honourable Court be pleased to order that the matrimonial properties listed above be settled in proportions aforesaid or as the Court may order.
(iv) THAT the Respondent to settle the costs of the summons.
2. The Originating Summons is supported by the affidavit of the Applicant in which she deposed as follows:-
(i) I am a female adult of sound mind and the Applicant herein well conversant with the facts as they relate to the matters before this Honorable Court and I wish to state as follows.
(ii) I have read, understood and have had the tenor and meaning of the application before this court (herein referred to as “the Application”) explained to me by my Advocates on record and wish to assert as follows in support of the same. My averments herein are based on my own knowledge and information, and I have also disclosed the sources of information where applicable.
(iii) I and the Respondent met in the United Kingdom and began courting and cohabiting as husband and wife in the year 2013. Immediately thereafter, we solemnized our traditional/customary marriage on or about 22 nd August 2015 through the Kikuyu customary rites.
(iv) During the subsistence of our marriage, I was working for gain as in the United Kingdom as a medical officer and the Respondent is equally a medical officer at the County Government of Taita Taveta. I was however domiciled in the Republic of Kenya and would occasionally visit the Respondent at our then matrimonial home in Mombasa.
(v) However, due to the Respondent’s cruelty, ill-treatment towards me and irreconcilable marital differences, I and the Respondent separated sometime in 2019 and eventually formalized our divorce vide Divorce Cause No. E1385 of 2021 on 29 th November 2023.
(vi) On various occasions as shall be demonstrated at the hearing, the Respondent requested from me colossal financial support which he intimated to me that he would use to invest in various projects in the Republic of Kenya and which support I frequently sent to the Respondent.
(vii) Through the aforementioned support and contribution, the Respondent and I acquired the following matrimonial properties and the same were/are registered in the Respondent’s names:-
(a) Land Title Number: Taita Taveta/Lake Jipe Scheme/285
(b) Land Title Number: Taita Taveta Shceme Phase I/1165.
(c) Land Title Number: Voi Municipality Block I/1348.
(d) Land Title Number: Voi/Ndara ‘A’/3380.
(e) Land Title Number: Voi/Ndara ‘’A/3514.
(f) Land Title Number: Mbololo/Mraru/4019.
(g) Land Title Number: Mbololo/Tausa/5178 – 5209
(h) Land Title Number: NEW TAVETA TOWN/;2894.
(i) Motor vehicle KDD 434K.
(j) Shares and business goodwill held by the Respondent at Utamaduni Pharmaceuticals Limited (CPR//2015/303462)
(viii) The Respondent through material misrepresentation and unknown to me registered all the above matrimonial property in his sole names which I only discovered after our marriage hit rock bottom.
(ix) I immediately lodged cautions on the aforementioned matrimonial properties to safeguard my spousal rights after the Respondent threatened to dispose of all the properties together with concealing material facts associated with some of the properties to my detriment.
(x) I would like to have the court declare that I am entitled to the properties and all income received from the same as well as proceeds in any of the above accounts on the basis of my financial and non-financial contribution as follows:-
(a) That I and the Respondent are both medical officers by profession and were working for gain during the subsistence of our marriage.
(b) That when the Respondent and I got married in 2015, I was working in the United Kingdom whereas the Respondent was working at the County Government of Taita Taveta.
(c) That we were both starting up financially and we applied our pay into our expenses and savings. We equally rented a house in Mombasa which at the time was our matrimonial home where I would frequently visit on during my work recess.
(d) That as evidenced from the above mentioned remittances and many more that I could not gather to produce before this court, I regularly sent my savings and part of my pay to the Respondent who was at the time in Kenya and intimated that he would wisely invest the same in various projects, properties as well as start a pharmaceutical business.
(e) That I would frequently travel to and from Kenya to furnish our matrimonial home and oversee operations at the pharmacy businesses within Mombasa.
(f) That I have provided love, companionship and support to the Respondent during the subsistence of our marriage.
(g) That I also managed our home and all domestic requirements to a very high degree.
(xi) From the above, I verily believe that I have contributed directly and indirectly towards the acquisition, development and maintenance of the matrimonial properties.
(xii) I am equally aware that the Respondent has sold some of the properties that would comprise of matrimonial property without my consent as dictated by law and I shall adduce such material evidence before this Honourable Court.
(xiii) I verily believe that I am entitled to 50% of the income and the proceeds from the matrimonial properties.
3. The Respondent F.W.K filed a Replying Affidavit sworn on 20 th May 2025 opposing the OS in which he deposed as follows:-
(i) THAT I am the Respondent herein and therefore competent to swear this affidavit.
(ii) THAT I have read the Originating Summons dated 31.7.2024 and I do oppose it strongly.
(iii) THAT the divorce court did say that there was no marriage between the parties herein but a presumption of one.
(iv) THAT the applicant was not living with the respondent continuously but occasionally as she was solely based in UK and the respondent based in Kenya.
(v) THAT the Applicant despite being married to the Respondent never behaved like a married woman as she would come stay with the respondent for a few weeks and leave him to stay alone in their house.
(vi) THAT the respondent clearly stated in the divorce proceedings clearly showing that she was unfaithful in their union and therefore made things very difficult for the respondent.
(vii) THAT the applicant did not meet with the respondent in UK as she alleges as the respondent has never studied in the UK.
(viii) THAT the respondent was previously married and their union blessed with a baby girl “Hope”.
(ix) THAT by the time the applicant was entering into a marriage in August 2015, the respondent had clearly accumulated wealth from his previous union.
(x) THAT even as we speak the respondent is currently married to another lady who they have a child and living together.
(xi) THAT the applicant is not being honest as some properties she has listed were acquired by the respondent before he met the applicant back in 2012, 2013, 2014 and the applicant was not in the respondent’s life.
(xii) THAT the applicant has listed properties that don’t belong to the applicant and we shall put the applicant to strict proof thereof.
(xiii) THAT the applicant had medical issues which are her fallopian tubes were blocked and couldn’t sire a child and therefore the respondent used to take care of her medical bills and when the bills became too high, the applicant would chip in and sent him money through M-pesa and electronic transfers these are the M-pesa and electronic transfers sent to the applicant that the applicant alleges she was making contribution.
(xiv) THAT the applicant also used to educate her niece in an international school and she would tell the respondent in order not to raise suspicious on her end to avoid tax. She would send the respondent money through M-pesa and the respondent would withdraw the money and give it to her.
(xv) THAT all the money sent to the respondent by the applicant was later given.
(xvi) THAT it is not possible that properties were only put in the respondent’s name as the respondent used to even educate the applicant since before they met the applicant did not have any education past form four. It is the respondent who helped her get her college certificates.
(xvii) THAT the applicant has crippled down the respondent by cautioning all his properties and interfering with his place of work, all in the aim to get him fired and jobless.
(xviii) THAT the applicant wanted the respondent to sell all his properties, quit job and follow her in the UK but when he refused, the applicant has vowed to destroy him completely.
(xix) THAT the applicant is not being genuine as she is not answering why the properties she is listing, she is not listed in any of them yet she was sending money, it doesn’t make sense for someone who is highly educated.
(xx) THAT there so many things the respondent did to the applicant that are greater than even the properties listed and for instance educating her, giving her a baby through I.V.F (artificial insemination) and taking care of all her medical bills that cannot be measured by using money and the respondent is not seeking for a refund.
(xxi) THAT the applicant is a dishonest person and gives false information even to authorities, such as using two different dates of birth and sets names. For instance, her Kenyan national documents identify her as born in 1982 and her names appear as Gladys Nungally Ndungu, while her Irish National documents identify her as Gladys Wairimu Gathera born in 1987 and the respondent is wiling to bring documents to proof the same.
(xxii) THAT the respondent in helping the applicant seeks medical treatment for her infertility problems, undertook expensive trips to Germany in 2016 and UK in 2018 at the respondent’s costs which the applicant had promised to refund, but upon refunding some of it to the respondent the applicant is now claiming to be a contribution to the respondent’s properties.
(xxiii) THAT the respondent solely paid for their joint flat in Mombasa County for the 3 years they were together including rent, electricity bills and all household bills, where the applicant promised to refund, but upon sending some of it she is now claiming to be a contribution to the respondent’s owned properties.
(xxiv) THAT the respondent helped the applicant acquire properties in Ongata Rongai and Mai Mahiu during their time together which she concealed and failed to disclose.
(xxv) THAT the respondent helped bail the applicant when she was in tax evasion problems and/or arrears with the UK authorities with her company namely GWCARE LTD in 2017, where the applicant was the director of the said company which she had promised to refund him, but upon sending some of the monies she is now twisting it and claiming it was to be a contribution to the respondent’s owned properties.
(xxvi) THAT the applicant always insisted that she be given all monies in cash because she had TAX issues in the UK and didn’t want to deal with bank accounts so she mostly would send the applicant money through mpesa or bank transfer then would insist on the respondent giving her back in cash so that the respondent would not have a trace back that she had received. The applicant was so deceitful and dishonest in their relationship had the respondent known it would turn out or through electronic transfers as she used to do to him so he can have evidence as well.
(xxvii) THAT from the onset the applicant was interested in conning the respondent and taking away his properties and that is why she skimmed all this deceitful plans and now she is trying to cripple the respondent down and take away his hard earned properties.
(xxviii) THAT the applicant has not shown any contribution to warrant her get the order sought.
(xxix) THAT it is the best interest of justice to have the Originating Summons dismissed with costs as it is brought in bad faith.
4. The case proceeded by viva voce evidence. The Applicant testified as PW1. She adopted her witness statement as her evidence in chief.
5. In the statement, the applicant, a female medical officer working in the United Kingdom, stated that she was of sound mind and familiar with the facts of the case.
6. She explained that she met the respondent, F W K, while they were both students in the United Kingdom in 2013 and they began a romantic relationship. Their customary marriage under Kikuyu rites was solemnized on 22nd August 2015.
7. She further stated that during the marriage, she contributed both financially and non-financially to the acquisition, development, and maintenance of their property.
8. As both were at the start of their medical careers, they pooled their resources. The applicant regularly sent substantial funds from the UK to the respondent via WorldRemit, with his assurance that the money was being invested in properties and businesses in Kenya for their mutual benefit.
9. She specified that some of these funds were used to establish Utamaduni Pharmaceuticals Limited, a company in which the respondent holds shares and which she believed now operated three branches.
10. Despite her contributions, she discovered after the marriage breakdown that several properties and assets were registered solely in the respondent's name.
11. These included eight separate land titles in Taita Taveta and Voi, a motor vehicle, and the shares and business goodwill of Utamaduni Pharmaceuticals Limited.
12. Upon confronting the respondent, he became hostile and threatened to dispose of the properties, leading her to lodge cautions against them to protect her interests.
13. The applicant stated that the marriage deteriorated due to the respondent's cruelty and irreconcilable differences, resulting in a separation in 2019 and a formal divorce on 29th November 2023. Following the divorce, she realized he had already begun disposing of some properties without her knowledge.
14. She believed she was entitled to a 70% share of all matrimonial property and any income derived from it, based on her direct financial support for investments, her management of the home, her oversight of business operations, and her provision of companionship. She cited Sections 7 and 9 of the Matrimonial Property Act, 2013 as the basis for her claim.
15. Consequently, she sought several reliefs from the court: a declaration that the listed assets were matrimonial property; a declaration of her 70% entitlement; an order for the transfer of that share; an order for the respondent to account for and compensate her for any properties already sold; and any other relief the court deemed fit.
16. She indicated her intention to present further evidence at the hearing.
17. In cross-examination PW1 said she was married to the Respondent from 2015 August to 2023.
18. She said they divorced in 2023. She said before the divorce they were separated between 2019 and 2020.
19. She said she used to work in UK and she would come to Kenya to invest the money.
20. The Respondent testified as DW1. He adopted his witness statement dated 27 th June 2025 as his evidence in chief.
21. In the said statement, F W K, a registered pharmacist, vehemently opposed the applicant's claims as based on misrepresentations.
22. He states he was trained in India and began his career in Kenya in 2008, becoming fully registered by 2010, and provides employment documents from 2013 to refute the applicant's claim that he was a student in the UK that year.
23. He categorically denies ever studying or residing in the United Kingdom and asserts that the applicant is fabricating the timeline of their relationship.
24. He states they first met in 2009 in Nairobi, had sporadic contact until reconnecting in 2015, followed by a customary introduction in August 2015 and cohabitation until late 2018.
25. He raises serious concerns about the applicant's identity, citing discrepancies between her Kenyan ID and Irish passport.
26. Regarding the nature of their relationship, he states the applicant was permanently based in the UK with only intermittent visits to Kenya and did not continuously cohabit as a wife.
27. He emphasizes that a Divorce Court has already found there was no valid marriage between them, only a presumption of one, which was subsequently dissolved.
28. He further cites the applicant's unfaithful conduct as having made the relationship difficult.
29. On the subject of property and business, he states he independently founded Utamaduni Pharmaceuticals in April 2014, acquiring it with a loan and personal savings, and incorporated it in August 2015, all before cohabitation began.
30. He asserts the applicant made no contribution to this business. He details that he acquired several properties solely through his own means before their cohabitation commenced in August 2015.
31. These properties include: Title no. VOI/NDARA "A"/3514, registered on 12th December 2013 for Ksh 400,000; Title No. VOI/NDARA "A"/3380, registered on 22nd July 2013 for Ksh 200,000; and Title No. VOI MUNISIPALITY BLOCK 1/1348, registered on 20th October 2013 for Ksh 200,000, on which he later secured a mortgage loan of Ksh 9,500,000 from his employer to build a house.
32. He concluded that the applicant's claims of joint investments are unsubstantiated and that any funds she sent were for specific purposes, not investments in his assets.
33. In cross-examination, DW1 said he started cohabiting with the Applicant in August 2015.
34. He said prior to 2015, he knew the Applicant as a patient who used to order medicine from his pharmacy.
35. The Respondent (DW1) agreed the divorce was granted on 29 th November 2023.
36. He also agreed that the Applicant used to send him money from 2015 to 2019.
37. He said that money was a loan the Applicant was refunding. He said she did not contribute to the acquisition of any of the properties.
38. He said he bought some of the properties through Afya Sacco.
39. The parties filed written submissions as follows; The Applicant, G G N N, submitted that she seeks a fair division of assets acquired during her marriage to the Respondent, F W K, which lasted from approximately 2014/2015 until their divorce on 29 November 2023.
40. The Applicant argues that the properties in question, including several parcels of land, a motor vehicle, and a pharmaceutical business, constitute matrimonial property.
41. She asserts her entitlement to a beneficial interest based on her substantial contributions, both financial and non-financial, throughout the marriage.
42. The Applicant's case is grounded in the Matrimonial Property Act, 2013, which operationalizes the constitutional principle of equality in marriage.
43. The law requires that property division be based on proven contribution, not on an automatic presumption of equal sharing.
44. The Applicant has provided evidence, notably through World Remit transfer records, demonstrating regular and sizeable monetary remittances from her to the Respondent that coincide with the acquisition and development of the disputed assets.
45. She contends the Respondent's claim that these funds were loans is unsupported by any documentary evidence such as agreements or repayment records.
46. Furthermore, the Applicant highlights her significant non-monetary contributions in managing the household, supporting the family business, and providing care, which enabled the Respondent to pursue economic activities.
47. As most assets are registered solely in the Respondent's name, the Applicant invokes the statutory presumption of a trust in her favour, which the Respondent has failed to rebut with convincing proof of exclusive financing.
48. The Applicant respectfully urges the Court to examine each asset individually, considering the chronology of acquisition and her documented inputs.
49. She does not seek a mechanical 50% division but rather an equitable apportionment reflecting her proven contributions.
50. Specifically, she submits that she is entitled to a beneficial share of not less than 60% across the properties, and an equal 50% share in the matrimonial home and the family pharmacy business.
51. She also requests that the Respondent provide accounts for any assets he may have disposed of unilaterally and that he bear the costs of the suit.
52. In conclusion, the Applicant prays for declarations and orders that recognize her contributions, affirm the assets as matrimonial property, and award her a corresponding share, thereby giving practical effect to the constitutional guarantee of equality at the dissolution of marriage
53. The Respondent submitted that the court should reject the Applicant's claim for a share of the listed properties.
54. The Respondent's position is that the Applicant is entitled to nothing, and the Originating Summons should be dismissed.
55. That the case is built on several interconnected premises. Firstly, the Respondent challenges the very existence of a formal marriage, noting the union was a presumed customary marriage that lasted only from August 2015 to 2017, approximately three years, during which they cohabitated for merely three months before the Applicant relocated to the United Kingdom.
56. Consequently, any property acquired by the Respondent outside this narrow window, whether before August 2015 or after 2017, cannot be considered matrimonial property subject to division.
57. Secondly, the Respondent disputes the Applicant's contribution to the acquisition of any assets. He asserted that the money sent by the Applicant was not for property investment but for specific personal purposes: to manage her tax affairs, cover her medical expenses and trips for IVF treatment, pay rent, and fund school fees for her relatives.
58. The Respondent provided financial records to substantiate that he alone acquired the properties through loans and personal funds.
59. Furthermore, the Respondent highlights that the Applicant purchased properties in her own name without his knowledge, undermining her claim of joint enterprise.
60. Thirdly, the Respondent systematically addresses each listed asset, arguing many should be excluded. Properties like Voi Municipality Block 1/1348, Mbololo/Muraru/4019, and Voi/Ndara "A"/3380 were purchased before the union began.
61. The motor vehicle KDD 434K was bought in 2021, after the relationship had ended and divorce proceedings were underway, and has since been sold.
62. The business, Utamaduni Pharmaceuticals Ltd, was registered and incorporated before the presumed marriage. For other properties, like Mbololo/Tausa/5178-5209, the Applicant allegedly provided no proof of ownership or title documents.
63. Finally, the Respondent attacks the Applicant's character and motives, alleging she entered the relationship with a hidden agenda to swindle him, used multiple identities, and has been ungrateful and dishonest.
64. Citing legal principles, the Respondent argues that equity requires clean hands and that a 50/50 division is not automatic but must reflect actual contribution and the circumstances of the marriage, which here was brief, distant, and devoid of genuine financial or domestic partnership from the Applicant.
65. In conclusion, the Respondent prays for the dismissal of the application with costs.
66. I have carefully considered the pleadings, the viva voce evidence adduced by both parties, the documentary exhibits, and the written submissions filed herein.
67. The main issue for determination in this case is whether the properties listed by the Applicant constitute matrimonial property in which she holds a beneficial interest by virtue of her contribution, either financial or non-financial, during the subsistence of her relationship with the Respondent.
68. The legal framework governing this dispute is the Matrimonial Property Act, No. 49 of 2013. Section 2 of the Act defines "matrimonial property" as the matrimonial home or homes and household goods and effects, and any other immovable and movable property jointly owned and acquired during the marriage.
69. Section 7 provides that 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.
70. Contribution is expansively defined under Section 2 to include monetary and non-monetary contributions, such as domestic work and management of the matrimonial home.
71. A preliminary issue raised by the Respondent concerns the nature of the union. He relies on the judgment in the divorce cause to argue that there was no valid customary marriage but merely a presumption of one.
72. However, for the purposes of the Matrimonial Property Act, the definition of "spouse" in Section 2 includes a man and a woman who are married to each other.
73. The decree of divorce issued on 29th November 2023 dissolved whatever union existed between the parties.
74. The Matrimonial Property Act applies to the division of property upon the dissolution of a marriage, and the fact of dissolution is not in dispute in this case.
75. Consequently, this Court’s mandate is to determine the beneficial interests in the property acquired during the period of the presumed marriage, which both parties agree commenced in August 2015 and ended with their separation in 2019.
76. The central principle in the division of matrimonial property is contribution, not automatic equality.
77. Article 45(3) of the Constitution, which guarantees the equal rights of spouses at the time of marriage, during the marriage, and at its dissolution, does not prescribe a 50/50 division but mandates a fair and equitable distribution based on proved contribution.
78. The burden of proving contribution lies with the spouse asserting it.
79. The Applicant, PW1, testified that from 2015 to 2019, she regularly remitted substantial funds from the United Kingdom to the Respondent in Kenya. She produced World Remit transfer records as evidence.
80. Her case is that these funds were pooled with the Respondent’s income for joint investment in property and business, as per their mutual understanding.
81. She also asserted non-financial contributions in managing the home and supporting the Respondent.
82. The Respondent, DW1, counters that these funds were not contributions but were for specific purposes such as reimbursements for her medical bills (including IVF treatment), rent for their flat, bailout for her tax issues in the UK, and money for her niece’s school fees which she allegedly channeled through him to avoid tax implications.
83. He contends that all monies sent were ultimately returned to her in cash.
84. Upon evaluation of the evidence, the Court finds the Respondent’s explanation for the financial transfers lacking in credibility and corroboration.
85. His claim that he received large sums only to physically hand back the cash to the Applicant, with no independent evidence of such repayments, is unconvincing.
86. A party’s mere denial of contribution is insufficient; they must provide evidence to rebut the claim.
87. The Respondent has not provided any loan agreements, records of cash withdrawals corresponding to the alleged repayments, or consistent documentation to support his narrative.
88. Conversely, the Applicant’s remittance records are contemporaneous and concrete.
89. In the context of a spousal relationship where parties are building a life together, the Court is inclined to accept that these regular transfers were indeed contributions towards their joint welfare and acquisitions, as alleged by the Applicant.
90. Financial contribution need not be directly tied to a specific asset but can be towards the general welfare of the family, freeing up the other spouse’s resources for investment.
91. Regarding the specific properties, the Court will apply the chronology established. The Respondent has provided credible documentary evidenc
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