1. The Claimant herein moved this honourable court vide the Originating Summons dated 27th September 2016 seeking the following orders:-
a) That the honourable court be pleased to declare and issue a declaration that all that house and land under Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022, registered in the name of the Respondent, is a joint property of the Applicant and Respondent and, therefore, matrimonial property within the meaning of the Matrimonial Properties Act, 2013.
b) That the honourable court do order that the Respondent does provide and disclose a comprehensive list of all moveable and immoveable properties, shares and bank accounts he holds and owns and that upon the said disclosure of the properties, accounts and shares, the same be shared equally between the Applicant and the respondent;
c) That the Respondent by himself his agents and/or servants and/or employees and/or anybody acting through him be restrained from alienating, disposing, transferring, selling and /or dealing with the said properties in any manner prejudicial to the Applicant’s interest;
d) That where the Respondent has alienated, encumbered, disposed of or dealt with in any of the properties in a manner prejudicial to the Applicant’s rights, then he be ordered to compensate the Applicant her share at market rate as at the time of the hearing of this suit;
e) That the honourable court be pleased to order that the said Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022, be awarded to the applicant for her benefit and that of their three children, all minors and consequently the respondent be ordered to vacate the said premises for the benefit of the Applicant and the children;
f) That should this honourable court not deem fit to grant order 5 above, in the alternative it be pleased to order the division and sale of the said Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022, and the proceeds and shared equally between the Applicant and Respondent;
g) That this honourable court be pleased to grant such further or other reliefs as may be just in the circumstance; and
h) That the Respondent be ordered to pay the costs of this application and the incidentals as thereto.
2. The Originating Summons is premised on the grounds stated in the body of the said Summons and also on the supporting affidavit of Hellen Kathure M’Tuamwari, the Claimant herein, sworn on 27th September 2017. She stated that she got married to the Respondent on 21st August 1999, and their marriage was blessed with three issues, namely Magdalene Mwende, born in 2000; Grace Mumo, born in 2007; and Angela Kendi, born in 2009.
3. She averred that they invested jointly as a couple in a number of ventures, one being Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022, a three-bedroomed house located in Kiembeni Green Estate, which they purchased in 2008 and have lived in together with their three children. In September 2015, the respondent unlawfully and forcefully evicted her from the matrimonial home and brought in another woman by the name of Linet Mueni, denying her access to the property and to the children. As a result, she was forced to look for accommodation elsewhere, resulting in her renting a bedsitter in Utange.
4. She stated that the property was acquired during the subsistence of marriage and that she contributed both directly and indirectly towards the same and thus has rights and interest in the said property. She then urged the court to allow the application as prayed.
5. In response the Respondent filed a replying affidavit sworn on 18th November 2016. He stated that the Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022 was charged with NIC Bank Limited. He averred that the Claimant consented to the charge being created. When he defaulted on loan repayment, the bank notified them of the same and its intention to exercise its statutory power of sale.
6. He averred that the Claimant did not make any contribution towards the acquisition of the said property as he was the one paying for all school and household expenditures as well as developing the property. He stated that he took the Claimant to the Mombasa Technical Training Institute for a catering course. He also opened an account for her account and various businesses, which the Claimant could not account for.
7. He further stated that he has a debt of Kes.12,000,000/- which he accrued on behalf of the family and that he is the one living with the issues of the marriage. He urged the court to dismiss the application.
8. The Claimant filed a supplementary affidavit sworn on 23rd January 2017. She reiterated her position in the supporting affidavit and stated that she was running her own business of baking and selling cakes and also engaged as a co-proprietor of various family businesses, which included; a charcoal business and a vegetable and a retail shop at Mtopanga, which was opened in 2002 and generated proceeds of Kes.5000-6000/- per day which would go to the Respondent. She deposed that they bought a Canter to assist in the charcoal business and got a plot in Mtopanga where they were running the charcoal business.
9. She averred that the proceeds from the various businesses she was running on behalf of the family were used to grow the business and acquire more property. Out of the said proceeds, she made substantial financial contributions towards household expenses and the well-being and progression of the family by taking care of expenses like food and children's clothes. She was the one paying for the house help as well as taking care of the Respondent’s grooming so that he would look presentable to the public. She further deposed that she was the overall manager of the house.
10. It was her further contention that in 2009/2010, she was a member of Safranka, a women’s saving group whereby she saved up to Kes.20,000/- which was used to pay school fees for their daughter Grace Mumo. She also took a loan of Kes.10,000 for the Respondent from the said group to fix his car, which she was forced to pay back after the Respondent failed to do so.
11. She stated that they used to farm oranges, maize and cassava on their ten-acre farm in Kwale County, where she would spend at least two weeks on the farm supervising the workers. They would sell the yields to a Mr Jackson and at Kongowea Market.
12. She further stated that she also provided a happy and homely home and companionship to the Respondent for 16 years of their marriage.
13. She stated that the respondent did not notify her of the loan Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022 that she is not aware of any outstanding debt of Kes.12,000,000/- owed by the Respondent to anyone or any institution. During the subsistence of their marriage, the Respondent would take numerous loans for his personal use without her consent, and thus, he ought to bear the burden of repaying alone. She thus urged the court to allow the summons as prayed.
14. The matter was canvassed by way of viva voce. Each party called one witness.
15. In support of her case the Claimant reiterated the contents of her affidavits and stated that she did not keep records of her financial contribution as she did not anticipate their separation. She left her matrimonial home with her clothes, only leaving behind everything, including the businesses with the Respondent. She prayed that the Originating Summons be allowed as prayed.
16. For his part, the Respondent reiterated the position in his replying affidavit and stated that Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022 was the only property acquired during the subsistence of marriage. He stated that the applicant never contributed anything, nor did she support him in paying school fees.
17. Parties filed written submissions. I shall summarise the submissions of the parties below.
18. The Claimant, through her advocates, Aroka & Company Advocates, filed her written submissions dated 24th January 2024. Counsel submitted on three issues.
19. On whether the suit properties constitute matrimonial property, counsel submitted the marriage between the Claimant and the Respondent was dissolved when the decree absolute was issued. Counsel relied on Section 6(1) of the Matrimonial Property Act on the meaning of matrimonial property and reiterated the position held by the Claimant on the acquisition of Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022 and Title No. Kwale/Diani/S.S/1299. It was averred that other properties were jointly acquired by the parties and registered in the name of the Respondent, who refused to give the Claimant details of the same. Counsel relied on Section 14(a) of the Matrimonial Property Act for the proposition that there was a rebuttable presumption that properties in the sole name of the Respondent belonged to both of them in equal shares. Further, the dispute herein is within the framework of the Matrimonial Property Act, as the two properties were acquired during the subsistence of marriage.
20. On the Claimant’s contribution towards the acquisition and development of the subject properties, the counsel reiterated the Claimant’s position and submitted that she contributed directly and indirectly.
21. On whether she is entitled to an equal share of the subject properties, counsel relied on Section 7 of the Matrimonial Property Act and submitted that the Claimant made both monetary and non-monetary contributions. Thus, she has equal rights to the same.
22. In conclusion, counsel urged the court to divide the properties equally amongst the parties.
23. The respondent, on the other hand, through his advocates, Omondi Waweru & Company Advocates, filed his written submissions dated 23rd February 2023. Counsel relied on Article 45(3) of the Constitution, Section 7 of the Matrimonial Property Act and submitted that a 50-50 split would be a starting presumption capable of being rebutted by evidence showing contribution by either party and urged the court to consider each party’s contribution.
24. It was submitted that the Claimant made no contribution towards the acquisition, development and improvement of Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022. The counsel for the Respondent urged that it was the Respondent who took care of the Claimant, enrolled her in school, and opened her businesses that were unsuccessful.
25. It was denied that the Shimba Hills land was a matrimonial property. Counsel for the Respondent contended that it was ancestral land. Regarding other properties, it was urged that the Claimant had not proved contribution.
26. In the circumstances, it was urged that the Originating Summons be dismissed.
27. I have read the Originating Summons, the responses thereto and the written submissions of the parties. I have also considered the oral testimonies of the Claimant and the Respondent for and against the case. I must now determine the matter based on the evidence and the law.
28. Parties hereto agree that they got married on 21st August 1999. Their union was dissolved in 2023 upon the issuance of the certificate making decree nisi absolute. The Claimant and the Respondent had three issues together, namely Magdalene Mwende, Grace Mumo, and Angela Kendi, born in 2009.
29. The properties, the subject of this Originating Summons, were acquired during the subsistence of the marriage. The Claimant and the Respondent disagree as to whether they are matrimonial properties. To answer this question, I will look at the Constitutional and statutory provisions.
30. Article 45(3) of the Constitution of Kenya, 2010 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.”
31. Section 6(1) of the Matrimonial Properties Act, 2013 defines matrimonial property as being:-
“(a) Matrimonial home or homes
(a) Household goods and effects in the matrimonial home or homes; or any other immovable and movable property jointly owned and acquired during the subsistence of the marriage”
32. The mere fact that a property is matrimonial does not mean that is owned by the spouses equally. Section 7 of the Act provides that matrimonial properties are, subject to subsection 6(3), owned by the spouses in accordance with the contribution of each party towards its acquisition and that upon divorce or dissolution of the marriage, it shall be divided among them in the proportions consistent with their contribution.
33. Section 14(a) of the said Act provides that:
“Where matrimonial property is acquired during marriage—
(a) in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse; and
(b) in the names of the spouses jointly, there shall be a rebuttable presumption that their beneficial interests in the matrimonial property are equal.”
34. As already stated during the subsistence of the marriage the following two properties were acquired, Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022 (acquired in 2008) and Title No. Kwale /Diani/55/1299 was purchased on 11th March 2011. Both these properties are in the name of the Respondent.
35. From the evidence adduced, it is clear that Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022 was the couple’s matrimonial home. Although the Claimant did not provide evidence of direct contribution, it was acknowledged that she engaged in businesses which generated income that she said was banked in the husband’s account.
36. The court notes that recording of financial dealings by spouses is almost always frowned upon. Most of the money matters are conducted on the basis of trust. The marriage between the two parties herein does not appear to have been different. The Claimant asserted that she made a monetary contribution towards the purchase of the suit property. Although the Respondent vehemently denied that that was the case, I am inclined to believe her. The couple stayed together for an extended period of time. It would be unreasonable to assume that during the entire period, she made no contribution whatsoever.
37. In addition, she was a homemaker who took care of the children, ensured that the husband was happy and provided him with a suitable home environment for him to thrive. Section 2 of the Matrimonial Property Act, 2013, in the following terms:-
In this Act, unless the context otherwise requires—
“Contribution” means monetary and non-monetary contribution and includes—
a) Domestic work and management of the matrimonial home;
(b) Child care;
(c) Companionship;
(d) Management of family business or property; and
(e) Farm work.
38. Further Section 7 of the Matrimonial Property Act is clear in its terms that:
“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.”
39. The court in the case of AWM v JGK [2021] KEHC 4780 (KLR) in dealing with non-monetary contribution stated,
“It is my considered view that the non-monetary contribution often-times cannot be quantified. If that contribution were to be reduced to monetary terms I am sure that a woman’s non-monetary contribution in the home would amount to a higher amount compared to that of the man. It is my finding therefore that the Applicant made monetary and non-monetary contribution towards acquiring the matrimonial property and that her non-monetary contribution is higher than that of the Respondent.”
40. Given that I cannot tell with mathematical certainty what contribution each party made the best I can do is to rely on the persuasive authority of PWK vs JKG 2015 eKLR the Court said;
“Where the disputed property is not so registered in the joint names of the spouses but is registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective proportions of financial contribution either direct or indirect towards the acquisition of the property. However, in cases where each spouse has made a substantial but unascertainable contribution, it may be equitable to apply the maxim Equality is equity while heeding the caution of Lord Pearson in Gissing vs Gissing [1970] 2All ER 780 Page 788.”
41. In the circumstances I find and hold that both Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022 and Title No. Kwale/Diani/SS/1299 are matrimonial properties, and the Respondent holds them in trust for himself and the Claimant on a 50:50 basis.
42. I order that the properties be valued within 60 days and sold by public auction. The proceeds should be first utilised to pay any outstanding debts. Whatever is left shall be shared equally by the Claimant and the Respondent.
43. I make no orders to costs as this is a matrimonial dispute between former spouses.
44. Orders accordingly.
Dated and signed in Mombasa this 10th day of June 2024. Delivered virtually via Microsoft TEAMS.
a) That the honourable court be pleased to declare and issue a declaration that all that house and land under Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022, registered in the name of the Respondent, is a joint property of the Applicant and Respondent and, therefore, matrimonial property within the meaning of the Matrimonial Properties Act, 2013.
b) That the honourable court do order that the Respondent does provide and disclose a comprehensive list of all moveable and immoveable properties, shares and bank accounts he holds and owns and that upon the said disclosure of the properties, accounts and shares, the same be shared equally between the Applicant and the respondent;
c) That the Respondent by himself his agents and/or servants and/or employees and/or anybody acting through him be restrained from alienating, disposing, transferring, selling and /or dealing with the said properties in any manner prejudicial to the Applicant’s interest;
d) That where the Respondent has alienated, encumbered, disposed of or dealt with in any of the properties in a manner prejudicial to the Applicant’s rights, then he be ordered to compensate the Applicant her share at market rate as at the time of the hearing of this suit;
e) That the honourable court be pleased to order that the said Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022, be awarded to the applicant for her benefit and that of their three children, all minors and consequently the respondent be ordered to vacate the said premises for the benefit of the Applicant and the children;
f) That should this honourable court not deem fit to grant order 5 above, in the alternative it be pleased to order the division and sale of the said Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022, and the proceeds and shared equally between the Applicant and Respondent;
g) That this honourable court be pleased to grant such further or other reliefs as may be just in the circumstance; and
h) That the Respondent be ordered to pay the costs of this application and the incidentals as thereto.
2. The Originating Summons is premised on the grounds stated in the body of the said Summons and also on the supporting affidavit of Hellen Kathure M’Tuamwari, the Claimant herein, sworn on 27th September 2017. She stated that she got married to the Respondent on 21st August 1999, and their marriage was blessed with three issues, namely Magdalene Mwende, born in 2000; Grace Mumo, born in 2007; and Angela Kendi, born in 2009.
3. She averred that they invested jointly as a couple in a number of ventures, one being Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022, a three-bedroomed house located in Kiembeni Green Estate, which they purchased in 2008 and have lived in together with their three children. In September 2015, the respondent unlawfully and forcefully evicted her from the matrimonial home and brought in another woman by the name of Linet Mueni, denying her access to the property and to the children. As a result, she was forced to look for accommodation elsewhere, resulting in her renting a bedsitter in Utange.
4. She stated that the property was acquired during the subsistence of marriage and that she contributed both directly and indirectly towards the same and thus has rights and interest in the said property. She then urged the court to allow the application as prayed.
5. In response the Respondent filed a replying affidavit sworn on 18th November 2016. He stated that the Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022 was charged with NIC Bank Limited. He averred that the Claimant consented to the charge being created. When he defaulted on loan repayment, the bank notified them of the same and its intention to exercise its statutory power of sale.
6. He averred that the Claimant did not make any contribution towards the acquisition of the said property as he was the one paying for all school and household expenditures as well as developing the property. He stated that he took the Claimant to the Mombasa Technical Training Institute for a catering course. He also opened an account for her account and various businesses, which the Claimant could not account for.
7. He further stated that he has a debt of Kes.12,000,000/- which he accrued on behalf of the family and that he is the one living with the issues of the marriage. He urged the court to dismiss the application.
8. The Claimant filed a supplementary affidavit sworn on 23rd January 2017. She reiterated her position in the supporting affidavit and stated that she was running her own business of baking and selling cakes and also engaged as a co-proprietor of various family businesses, which included; a charcoal business and a vegetable and a retail shop at Mtopanga, which was opened in 2002 and generated proceeds of Kes.5000-6000/- per day which would go to the Respondent. She deposed that they bought a Canter to assist in the charcoal business and got a plot in Mtopanga where they were running the charcoal business.
9. She averred that the proceeds from the various businesses she was running on behalf of the family were used to grow the business and acquire more property. Out of the said proceeds, she made substantial financial contributions towards household expenses and the well-being and progression of the family by taking care of expenses like food and children's clothes. She was the one paying for the house help as well as taking care of the Respondent’s grooming so that he would look presentable to the public. She further deposed that she was the overall manager of the house.
10. It was her further contention that in 2009/2010, she was a member of Safranka, a women’s saving group whereby she saved up to Kes.20,000/- which was used to pay school fees for their daughter Grace Mumo. She also took a loan of Kes.10,000 for the Respondent from the said group to fix his car, which she was forced to pay back after the Respondent failed to do so.
11. She stated that they used to farm oranges, maize and cassava on their ten-acre farm in Kwale County, where she would spend at least two weeks on the farm supervising the workers. They would sell the yields to a Mr Jackson and at Kongowea Market.
12. She further stated that she also provided a happy and homely home and companionship to the Respondent for 16 years of their marriage.
13. She stated that the respondent did not notify her of the loan Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022 that she is not aware of any outstanding debt of Kes.12,000,000/- owed by the Respondent to anyone or any institution. During the subsistence of their marriage, the Respondent would take numerous loans for his personal use without her consent, and thus, he ought to bear the burden of repaying alone. She thus urged the court to allow the summons as prayed.
14. The matter was canvassed by way of viva voce. Each party called one witness.
15. In support of her case the Claimant reiterated the contents of her affidavits and stated that she did not keep records of her financial contribution as she did not anticipate their separation. She left her matrimonial home with her clothes, only leaving behind everything, including the businesses with the Respondent. She prayed that the Originating Summons be allowed as prayed.
16. For his part, the Respondent reiterated the position in his replying affidavit and stated that Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022 was the only property acquired during the subsistence of marriage. He stated that the applicant never contributed anything, nor did she support him in paying school fees.
17. Parties filed written submissions. I shall summarise the submissions of the parties below.
18. The Claimant, through her advocates, Aroka & Company Advocates, filed her written submissions dated 24th January 2024. Counsel submitted on three issues.
19. On whether the suit properties constitute matrimonial property, counsel submitted the marriage between the Claimant and the Respondent was dissolved when the decree absolute was issued. Counsel relied on Section 6(1) of the Matrimonial Property Act on the meaning of matrimonial property and reiterated the position held by the Claimant on the acquisition of Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022 and Title No. Kwale/Diani/S.S/1299. It was averred that other properties were jointly acquired by the parties and registered in the name of the Respondent, who refused to give the Claimant details of the same. Counsel relied on Section 14(a) of the Matrimonial Property Act for the proposition that there was a rebuttable presumption that properties in the sole name of the Respondent belonged to both of them in equal shares. Further, the dispute herein is within the framework of the Matrimonial Property Act, as the two properties were acquired during the subsistence of marriage.
20. On the Claimant’s contribution towards the acquisition and development of the subject properties, the counsel reiterated the Claimant’s position and submitted that she contributed directly and indirectly.
21. On whether she is entitled to an equal share of the subject properties, counsel relied on Section 7 of the Matrimonial Property Act and submitted that the Claimant made both monetary and non-monetary contributions. Thus, she has equal rights to the same.
22. In conclusion, counsel urged the court to divide the properties equally amongst the parties.
23. The respondent, on the other hand, through his advocates, Omondi Waweru & Company Advocates, filed his written submissions dated 23rd February 2023. Counsel relied on Article 45(3) of the Constitution, Section 7 of the Matrimonial Property Act and submitted that a 50-50 split would be a starting presumption capable of being rebutted by evidence showing contribution by either party and urged the court to consider each party’s contribution.
24. It was submitted that the Claimant made no contribution towards the acquisition, development and improvement of Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022. The counsel for the Respondent urged that it was the Respondent who took care of the Claimant, enrolled her in school, and opened her businesses that were unsuccessful.
25. It was denied that the Shimba Hills land was a matrimonial property. Counsel for the Respondent contended that it was ancestral land. Regarding other properties, it was urged that the Claimant had not proved contribution.
26. In the circumstances, it was urged that the Originating Summons be dismissed.
27. I have read the Originating Summons, the responses thereto and the written submissions of the parties. I have also considered the oral testimonies of the Claimant and the Respondent for and against the case. I must now determine the matter based on the evidence and the law.
28. Parties hereto agree that they got married on 21st August 1999. Their union was dissolved in 2023 upon the issuance of the certificate making decree nisi absolute. The Claimant and the Respondent had three issues together, namely Magdalene Mwende, Grace Mumo, and Angela Kendi, born in 2009.
29. The properties, the subject of this Originating Summons, were acquired during the subsistence of the marriage. The Claimant and the Respondent disagree as to whether they are matrimonial properties. To answer this question, I will look at the Constitutional and statutory provisions.
30. Article 45(3) of the Constitution of Kenya, 2010 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.”
31. Section 6(1) of the Matrimonial Properties Act, 2013 defines matrimonial property as being:-
“(a) Matrimonial home or homes
(a) Household goods and effects in the matrimonial home or homes; or any other immovable and movable property jointly owned and acquired during the subsistence of the marriage”
32. The mere fact that a property is matrimonial does not mean that is owned by the spouses equally. Section 7 of the Act provides that matrimonial properties are, subject to subsection 6(3), owned by the spouses in accordance with the contribution of each party towards its acquisition and that upon divorce or dissolution of the marriage, it shall be divided among them in the proportions consistent with their contribution.
33. Section 14(a) of the said Act provides that:
“Where matrimonial property is acquired during marriage—
(a) in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse; and
(b) in the names of the spouses jointly, there shall be a rebuttable presumption that their beneficial interests in the matrimonial property are equal.”
34. As already stated during the subsistence of the marriage the following two properties were acquired, Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022 (acquired in 2008) and Title No. Kwale /Diani/55/1299 was purchased on 11th March 2011. Both these properties are in the name of the Respondent.
35. From the evidence adduced, it is clear that Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022 was the couple’s matrimonial home. Although the Claimant did not provide evidence of direct contribution, it was acknowledged that she engaged in businesses which generated income that she said was banked in the husband’s account.
36. The court notes that recording of financial dealings by spouses is almost always frowned upon. Most of the money matters are conducted on the basis of trust. The marriage between the two parties herein does not appear to have been different. The Claimant asserted that she made a monetary contribution towards the purchase of the suit property. Although the Respondent vehemently denied that that was the case, I am inclined to believe her. The couple stayed together for an extended period of time. It would be unreasonable to assume that during the entire period, she made no contribution whatsoever.
37. In addition, she was a homemaker who took care of the children, ensured that the husband was happy and provided him with a suitable home environment for him to thrive. Section 2 of the Matrimonial Property Act, 2013, in the following terms:-
In this Act, unless the context otherwise requires—
“Contribution” means monetary and non-monetary contribution and includes—
a) Domestic work and management of the matrimonial home;
(b) Child care;
(c) Companionship;
(d) Management of family business or property; and
(e) Farm work.
38. Further Section 7 of the Matrimonial Property Act is clear in its terms that:
“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.”
39. The court in the case of AWM v JGK [2021] KEHC 4780 (KLR) in dealing with non-monetary contribution stated,
“It is my considered view that the non-monetary contribution often-times cannot be quantified. If that contribution were to be reduced to monetary terms I am sure that a woman’s non-monetary contribution in the home would amount to a higher amount compared to that of the man. It is my finding therefore that the Applicant made monetary and non-monetary contribution towards acquiring the matrimonial property and that her non-monetary contribution is higher than that of the Respondent.”
40. Given that I cannot tell with mathematical certainty what contribution each party made the best I can do is to rely on the persuasive authority of PWK vs JKG 2015 eKLR the Court said;
“Where the disputed property is not so registered in the joint names of the spouses but is registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective proportions of financial contribution either direct or indirect towards the acquisition of the property. However, in cases where each spouse has made a substantial but unascertainable contribution, it may be equitable to apply the maxim Equality is equity while heeding the caution of Lord Pearson in Gissing vs Gissing [1970] 2All ER 780 Page 788.”
41. In the circumstances I find and hold that both Property No. Title Sub Division No.10550 (Original No.936/2), Section II Mainland North-Mombasa, also referred to as No. MN/II/339 CR.44022 and Title No. Kwale/Diani/SS/1299 are matrimonial properties, and the Respondent holds them in trust for himself and the Claimant on a 50:50 basis.
42. I order that the properties be valued within 60 days and sold by public auction. The proceeds should be first utilised to pay any outstanding debts. Whatever is left shall be shared equally by the Claimant and the Respondent.
43. I make no orders to costs as this is a matrimonial dispute between former spouses.
44. Orders accordingly.
Dated and signed in Mombasa this 10th day of June 2024. Delivered virtually via Microsoft TEAMS.