A. INTRODUCTION 1. By an Originating Summons dated 18th April 2024 and filed in this Court, brought under Order 37 Rule 11 of the Civil Procedure Rules, 2010 and Sections 2, 6, 7, 9, 12, 14 and 17 of the Matrimonial Property Act, 2013 the Applicant, Linet Ayuma Majani, moved this Court for the following orders: a) THAT this Honourable Court do declare that the Applicant is entitled to 50% or such other or higher proportion as this Court may deem fit to the following properties: i) Land Parcel NYANG'ORI/HAMISI/'B'1176; ii) Motor Vehicle Registration Number KAM 458F. b) THAT costs be provided for. 2. The Originating Summons is supported by the Affidavit of the Applicant sworn on 17th April 2024, together with the annextures thereto, and by her Witness Statement dated 6th December 2024 and filed on 6th February 2025, together with the Applicant's List and Bundle of Documents of even date. 1 HCCC E001 OF 2024 3. The Respondent, Gilbert Luvayo, opposed the application by way of a document entitled "Response to the Application in the Matter of Matrimonial Property" filed on 30th May 2024. The Respondent did not file a replying affidavit, a witness statement, or a list or bundle of documents, and did not, at the hearing, tender any oral or documentary evidence. He elected to rely upon his said Response both as his pleading and as his submissions. 4. This judgment therefore falls to be delivered upon the Applicant's evidence, the Respondent's Response, the Applicant's Written Submissions filed on 7th May 2026, and the authorities cited. B. THE APPLICANT'S CASE 5. The Applicant's case, as deposed in her Supporting Affidavit and elaborated in her Witness Statement (which she adopted at the hearing as her evidence in chief), may be summarised as follows. 6. She and the Respondent were married in the year 2005 in a traditional/customary ceremony, which union was later solemnized through a church wedding in 2019. She produced a Marriage Certificate at page 1 of her bundle. The marriage therefore subsisted for a period of approximately nineteen (19) years. 7. The marriage was blessed with three children, namely Flavian Jumba, Grecy Jegugu and Iymara Vulemi, whose Birth Certificates appear at pages 2–4 of the bundle, and whom the parties, in her words, took care of "with no reservation." 8. Following a protracted period of misunderstandings, disagreements and disputes, the parties petitioned for divorce. A Decree Nisi was granted on 30th January 2024 by the Senior Principal Magistrate's Court at Hamisi (page 5 of the bundle), and the said Decree was subsequently made Absolute (page 6 of the bundle). On the state of the record, the Decree Absolute issued on 9th April 2024. 9. During the subsistence of the marriage, the Applicant avers, the parties acquired Land Parcel NYANG'ORI/HAMISI/'B'1176, upon which they 2 HCCC E001 OF 2024 constructed their matrimonial home, together with Motor Vehicle Registration Number KAM 458F. A copy of the title document and photographs of a motor vehicle bearing the said registration mark appear at pages 7–9 of the bundle. 10. The Applicant's central averment on contribution is contained at paragraph 6 of her Witness Statement. She states that, the parties being a couple, arrangements were made whereby she secured several loans from IG Sacco Limited towards the purchase of the said property, which was then registered in the Respondent's sole name upon the understanding that he was to hold the same in trust for herself and the children. Copies of her IG Sacco member loan statements appear at pages 10–18 of the bundle. 11. Beyond the said Sacco borrowings, she deposes that she took further credit from Kenya Credit Traders and from her bank in order to support the Respondent in meeting other financial obligations, and she relies on her payslips at pages 19–23 as evidence of the corresponding deductions. 12. She further deposes to: a) Regular repairs and maintenance of the matrimonial house, evidenced by receipts at pages 24–27; b) Payment of the children's school fees and household shopping, including in January of the year in which the suit was filed, when the Respondent declined to pay school fees for the two children Iymara Vulemi and Grecy Jegugu (pages 28–30); c) Sole financial maintenance of the family between 2016 and 2017, at a time when the Respondent had stood as guarantor for colleagues who defaulted, with the consequence that his entire salary was attached in recovery. She relies on a letter addressed to the Director of Public Prosecutions at page 31; d) Financial support of the family during the Respondent's interdiction by the Teachers Service Commission between 23rd August 2019 and 29th October 2020, when he was unable to cater for the family's needs; and she further states that during that interdiction she took a loan part of which she 3 HCCC E001 OF 2024 applied towards the Respondent's own school fees for his further education. The interdiction and reinstatement letters appear at pages 3233; e) Her role as a dedicated wife who supported the Respondent financially, emotionally and psychologically, and, as deposed at paragraph 9 of her Supporting Affidavit, her responsibility for looking after the home and the children, most of her free time having been spent as caregiver to the family. 13. On that basis she prays for a declaration that she is entitled to 50% or such higher proportion of the two suit properties as the Court may deem just C. THE RESPONDENT'S CASE 14. The Respondent's Response is short and may be set out in substance. He pleads: a) THAT the matters before the Court are of great importance and call for critical, insightful and in-depth consideration so as to reach a just conclusion; b) THAT the listing of the land and the motor vehicle as property for consideration is erroneous and a misrepresentation of facts; c) THAT he has never owned a motor vehicle, whether personally, jointly with other persons, or with family, and that the Applicant ought to have conducted due diligence rather than annex photographs of property of no interest to the application and thereby occasion anxiety to persons who are not parties to the suit; d) THAT he is the absolute owner of Land Parcel NYANG'ORI/HAMISI/'B'1176, whose lost title deed is the subject of an active criminal investigation notwithstanding that a faint copy has been annexed to the application, and that the onus of rebuttal lies with the Applicant; e) THAT upon the issuance of the order absolute in the divorce cause, the Applicant lost any qualification to make a property claim under Section 2 of the Act; that one of the key grounds of the divorce was desertion; 4 HCCC E001 OF 2024 that on those grounds, contribution as contemplated by Section 2 of the Act is defeated; and that the Applicant did not successfully challenge that ground, the Court having affirmed it. 15. As already observed, the Respondent adduced no evidence in support of these assertions. He filed no affidavit, called no witness, and produced no document — not the record or decree of the divorce cause upon which his desertion argument depends, not the abstract of title, not any instrument of acquisition, and nothing touching upon the motor vehicle. D. SUBMISSIONS 16. Learned Counsel for the Applicant, M/s Wanyundi, Kuchio Tindi & Associates, filed comprehensive written submissions dated and filed on 7th May 2026. Counsel framed three issues: whether the suit properties constitute matrimonial property; whether the Applicant contributed to their acquisition; and whether she is entitled to 50% or a greater share. Counsel relied on Sections 6 and 7 of the Act and on a number of authorities, among them M W K v C W N [2014] KEHC 4739 (KLR), Kivuitu v Kivuitu (1991) 2 KAR 241, Kamore v Kamore (2000) 1 EA 81, Gathiya Essa v Mohamed Alibhai Essa, CA No. 141 of 1998, Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others [2023] KESC 106 (KLR), L W K v S K G [2024] KEHC 11212 (KLR), G C R v C O O [2025] KEHC 11953 (KLR), Joseph Ombogi Ogentoto v Martha Bosibori Ogentoto, SC Petition No. 11 of 2020, I C v S S [2024] KEHC 3316 (KLR), Federation of Women Lawyers Kenya (FIDA-Kenya) v Attorney General; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) [2025] KECA 1588 (KLR), and the English decisions in Miller v Miller [2006] UKHL 24 and White v White [2001] 1 AC 596. 17. Counsel further submitted that the Respondent had expressly admitted before this Court that the suit properties are held in trust for the Applicant and the children, that facts admitted need not be proved, and that such admission is dispositive of the question of beneficial ownership. By way of 5 HCCC E001 OF 2024 supplementary prayers, Counsel proposed a mode of distribution comprising a professional valuation of both assets followed by either physical subdivision or monetary conversion, with 50% to the Applicant and 30% held collectively for the three children, the shares to be allocated as the Court deems just. 18. The Respondent, as stated, relied on his Response as his submissions and filed nothing further. E. ISSUES FOR DETERMINATION 19. Having anxiously considered the pleadings, the evidence, the submissions and the authorities, I frame the following issues for determination: i. Whether the dissolution of the marriage, and in particular the ground of desertion, deprives the Applicant of the standing or the entitlement to seek relief under the Matrimonial Property Act, 2013; ii. iii. iv. v. vi. vii. viii. Whether Land Parcel NYANG'ORI/HAMISI/'B'1176 is matrimonial property within the meaning of Section 6 of the Act; Whether Motor Vehicle Registration Number KAM 458F has been proved to be matrimonial property; Whether the Applicant contributed, within the meaning of Section 2 of the Act, towards the acquisition and improvement of the suit property; Whether the Respondent made an admission of trust, and what the consequences of the statutory presumption under Section 14 of the Act are; Whether this Court may, in a cause under the Act, allot shares to the children of the marriage; What share, if any, the Applicant is entitled to, and by what mode it should be realized; Who should bear the costs of this cause. F. ANALYSIS AND DETERMINATION Issue i: The effect of dissolution and the desertion argument 6 HCCC E001 OF 2024 20. The Respondent's first and most fundamental objection is that upon the decree absolute the Applicant ceased to be a "spouse" within Section 2 of the Act and thereby "lost any qualification to make any property claim." With respect, the argument is untenable and betrays a misreading of the statute. 21. Section 7 of the Act 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." The Section is, on its face, addressed to the very event which the Respondent says extinguishes the claim. If the Respondent's construction were correct, Section 7 would be rendered wholly inoperative, for no division could ever follow a divorce. A construction which renders a statutory provision nugatory or absurd is one the Court must reject. 22. The point is put beyond argument by Section 17(1) of the Act, which provides that a person may apply to a Court for a declaration of rights to any property that is contested between that person "and a spouse or a former spouse" of that person. The legislature expressly conferred standing on former spouses. The Applicant is a former spouse. She has standing. That is the end of the matter. 23. The second limb of the objection, that desertion, having been a ground of the divorce, "defeats" contribution, is equally misconceived, and for three reasons. 24. First, it is unsupported by the text of the Act. Sections 2, 6, 7, 9 and 14 make the division of matrimonial property turn upon contribution, not upon conduct. Nowhere does the Act provide that a spouse against whom a matrimonial offence is proved forfeits a beneficial interest already acquired. Property rights, once earned by contribution, are not extinguished by the manner in which the marriage came to an end. To hold otherwise would be to import into a statute a forfeiture provision which Parliament did not enact. 25. Secondly, the proposition offends the principle of fairness which underlies the whole of this jurisdiction. In Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, relied upon by the Applicant as persuasive authority, the House of 7 HCCC E001 OF 2024 Lords emphasized that in seeking a fair outcome there is no place for discrimination between husband and wife and their respective roles, discrimination being the antithesis of fairness; and that in assessing the parties' contributions to the family there should be no bias in favour of the money-earner and against the home-maker. That principle, of universal application, cannot sit alongside a rule that a deserting spouse loses everything she has built. 26. Thirdly, and decisively on the evidence, the Respondent has proved nothing. He did not produce the pleadings, the judgment, or the decree in the divorce cause. There is therefore no material before me establishing that desertion was a ground upon which the marriage was dissolved, still less that any finding of fact was made against the Applicant in that regard. He who alleges must prove: Sections 107, 108 and 109 of the Evidence Act (Cap 80). The Respondent has not discharged that burden and his assertion remains a bare assertion from the bar. 27. I note in passing, and for the sake of the record, a discrepancy in the material dates. The Originating Summons pleads that the Decree Nisi of 30th January 2024 was made absolute on 9th April 2024. The Applicant's Witness Statement at paragraph 4 gives the date as "31st April 2024", a date which does not exist in the calendar. The Respondent, for his part, refers to "the order absolute in the petition for divorce on 30th January 2024," thereby conflating the Decree Nisi with the Decree Absolute. Having regard to the Decree Absolute produced at page 6 of the Applicant's bundle and to the pleaded date in the Originating Summons, I find as a fact that the Decree Nisi issued on 30th January 2024 and was made absolute on 9th April 2024. The reference to "31st April 2024" in the Witness Statement is a manifest typographical slip which does not go to the root of the Applicant's case and which I disregard. Issue (a) is accordingly answered in the negative. 28. The dissolution of the marriage neither deprives the Applicant of standing nor defeats her claim. On the contrary, it is the very event which triggers the division mandated by Section 7. 8 HCCC E001 OF 2024 29. The core legal principles now settled by Kenyan Courts on distribution of matrimonial property include inter alia the following: No Automatic 50:50 Split: Marriage itself does not give a spouse an automatic half-share of joint or individual property upon divorce. The Contribution Rule: Property division is strictly tied to the proven direct or indirect contribution of each spouse toward acquiring the asset. Recognition of Non-Monetary Contributions: Homemaking, child care, and domestic services are recognized as valid contributions, evaluated and factored in by looking at equivalent market values. Exclusion of Pre-Marriage Assets: Assets owned separately by a partner prior to the union generally do not form part of joint matrimonial property unless explicitly integrated or developed together during the marriage. Issue ii: Whether the land is matrimonial property 29. Section 6(1) of the Act defines matrimonial property to mean (a) the matrimonial home or homes; (b) household goods and effects in the matrimonial home or homes; or (c) any other immovable and movable property jointly owned and acquired during the subsistence of the marriage. Section 6(2) excludes trust property, including ancestral land and land which for the time being is held by a community as ancestral land. 30. It is important to appreciate the structure of Section 6(1). The requirement of joint ownership and acquisition during the marriage appears in limb (c) only. Limb (a) — the matrimonial home — is not so qualified. Property which constitutes the matrimonial home is matrimonial property whether it stands registered in the name of the husband, the wife, or both. Any other reading would allow the spouse in whose name the home happens to be registered to defeat the statute by the simple expedient of registration, which is precisely the mischief Section 14 was enacted to address. 31. On the evidence before me: 9 HCCC E001 OF 2024 a) The Applicant deposes, at paragraph 5 of her Witness Statement, that the parcel was acquired during the subsistence of the marriage and that the parties constructed their matrimonial home upon it together. b) The Respondent, in his Response, does not deny that the parcel is the site of the matrimonial home. He does not deny that the parties resided there as husband and wife. He does not plead when he acquired the parcel, from whom, or by what means. He does not plead that it was acquired before the marriage, nor that it came to him by inheritance, gift or succession, nor that it is ancestral or trust land within Section 6(2). His entire plea is the bare assertion of absolute ownership, coupled with an objection to the legibility and provenance of the copy title. c) Crucially, he admits that he is the registered proprietor. The fact of registration in his sole name is therefore not in issue between the parties. 32. Registration is, of course, the beginning and not the end of the inquiry. The Court of Appeal and the Supreme Court have repeatedly affirmed that a registered title may be subjected to a trust. In M W K v C W N [2014] KEHC 4739 (KLR) it was held that the registration of property in the name of one spouse does not extinguish the beneficial interest of the other. In Kivuitu v Kivuitu (1991) 2 KAR 241 the Court observed that where property is conveyed to spouses there is a presumption as to their intention that the matrimonial home be held jointly; and in Kamore v Kamore (2000) 1 EA 81 it was held that where property is acquired in the course of coverture and registered in the joint names of both spouses, the Court must in normal circumstances take it that such property, being a family asset, is acquired in equal shares. To like effect is Gathiya Essa v Mohamed Alibhai Essa, CA No. 141 of 1998. 33. More directly in point, the Supreme Court in Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others [2023] KESC 106 (KLR) affirmed that 10 HCCC E001 OF 2024 where the evidence is that the matter was not expressly discussed, the Court may nonetheless infer from the conduct of the parties a common intention that property be shared beneficially, and that direct contributions to the purchase price by the party who is not the legal owner, whether initially or by way of loan or mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust. That reasoning was applied in the matrimonial context in I C v S S [2024] KEHC 3316 (KLR), where it was held that a constructive trust may be imported to defeat a claim of sole ownership founded upon registration. 34. Above all, this Court is bound by Section 14(a) of the Act (Matrimonial Property Act), which provides that where matrimonial property is acquired during marriage in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse. The presumption operates by force of Statute. Once the foundational facts are established- acquisition during marriage, registration in the sole name of one spouse-the evidential burden shifts to the registered proprietor to rebut it. 35. The Respondent has not begun to rebut it. He led no evidence at all. He did not tell the Court when or how he came by the parcel, what he paid for it, or from what source. He did not produce a sale agreement, a transfer instrument, a green card or an abstract of title. His complaint that the copy title annexed by the Applicant is "faint" and the subject of a criminal investigation is, with respect, beside the point: the Applicant does not need the original title to establish a beneficial interest, and the Respondent's own pleading admits his proprietorship. A party who admits the very fact upon which the statutory presumption bites, and then leads no evidence to displace the presumption, cannot succeed. 36. It is trite that unchallenged and uncontroverted evidence, if not inherently improbable, may properly be acted upon by a Court. The Applicant's account of acquisition during the marriage and construction of the matrimonial home upon the parcel stands unchallenged on the record. 11 HCCC E001 OF 2024 37. I therefore find and hold that Land Parcel NYANG’ORI/HAMISI/B 1176 together with the developments thereon comprising the matrimonial home, is matrimonial property within the meaning of Section 6(1)(a) of the Matrimonial Property Act, 2013, and that the Respondent holds the same subject to the presumption of trust in Section 14(a) of the Act, which presumption he has failed to rebut. 38. In my considered view, in the legislative scheme under the Matrimonial Property Act during the survivorship of the marriage, that property acquired and developed for it to be called a home during distribution should be considered joint matrimonial property. However, the question of whether property should be divided equally on divorce or dissolution of the marriage depends in the individual circumstances of each case under adjudication by a Court of law. What is generally accepted and now trite is that it is not every case that the parties hold equal shares to the matrimonial property. It is the duty of the family courts to follow through the principles under the Matrimonial Property Act to determine a contributing spouse’s share in what has been identified as joint property acquired during the subsistence of the marriage. In the neighboring jurisdiction their jurisprudence is akin to our local trajectory in shaping the direction in which the distribution of matrimonial property should be sequenced bearing in mind the constitutional imperatives together with the letter and spirit of the Act. Without necessarily delving into the exact facts of the comparative persuasive dicta in the case of Kagga v Kagga Cause No. 11 of 2005 the Court observed as follows: Our courts have established a principle which recognizes each spouse's contribution to acquisition of property and this contribution may be direct, where the contribution is monetary or indirect where a spouse offers domestic services. «When distributing the property of a divorced couple, it is immaterial that one of the spouses was not as financially endowed as the other as this case clearly showed that while the first respondent was the financial muscle behind all the 12 HCCC E001 OF 2024 wealth they acquired, the contribution of the petitioner is no less important than that made be the respondent.´ 39. I find that in the recent past judicial decisions seems to have come up with difference interpretations of what constitutes matrimonial property including property held jointly between the married couples, property acquired prior to the marriage and later developed jointly, personal property acquired during the marriage and each separately registered without any common or joint tenancy which means that the marital relation is moving towards ensuring that marriage does not negate individual rights on acquisition and ownership of property. The are provisions of the Marriage Act which newly married couples should start exercising discretion by individualizing assets and properties within the dimension of prenuptial agreement and postnuptial agreements. Like in the case at hand, given the issues being raised by the Respondent, a postnuptial agreement touching on the welfare and the best interest of the children could have helped them facilitate the distribution of this marital estate. However, that is now water under the bridge as this family caught is ceased of jurisdiction to determine and establish the category of assets that belong to the entire marriage before dissolution and issuance of the decree absolute. 40. In a nutshell, addressing the fundamental question to this cause and fostering equality and justice for the two spouses in my view it can never be reduced into a mathematical precision. For the concept of equal sharing of marital estate as envisioned in the law encourages transparency and accountability between spouses regardless of their contribution during the survivorship of the marriage but sometimes that might not be the reality on the ground for many practical reasons for marriage does not subordinate fundamental rights and freedoms of each individual. The other contentious issue is that dissolution of marriage between spouses always remains in the realm of the unknown and when it strikes is like thunderstorm and each individual might not be emotionally prepared to 13 HCCC E001 OF 2024 address the fair distribution of matrimonial property. This was the case in this matrimonial cause for none of the parties was willing to promote equity in the matrimonial assets. In terms of quantifying which of the factors under the Matrimonial Property Act carried more weight than the other so that to apportion percentages on distribution of matrimonial property based on the actual contributions made by either spouse whether direct or indirectly throughout the marriage remained a pull and push game plan without harmonizing the conflict underlining it with the provisions of the Matrimonial Property Act. In regard to this matter the marital property has been identified and the level of contribution drawn from both the Applicant and the Respondent has been crystalized based on the evidential material together with accompanying documentary instruments. Issue iii: Whether the motor vehicle has been proved to be matrimonial property 38. The position in respect of Motor Vehicle Registration Number KAM 458F is materially different, and I must approach it with the same rigor, notwithstanding the Respondent's failure to lead evidence. 39. The Respondent's denial here is unequivocal and specific: he has never owned any motor vehicle, whether personally, jointly, or with family. He goes further and complains that photographs of a vehicle belonging to a stranger to these proceedings have been annexed, thereby occasioning anxiety to a person not before the Court. That denial squarely puts the Applicant to strict proof. 40. The whole of the Applicant's evidence on this head consists of two photographs of a saloon motor vehicle bearing the registration mark KAM 458F, appearing at page 9 of her bundle. There is: a. no copy of a logbook or certificate of registration; b. no search or records extract from the National Transport and Safety Authority; c. no sale agreement, invoice, importation document or transfer form; d. no 14 HCCC E001 OF 2024 insurance certificate, inspection record or evidence of custody; e. no evidence whatsoever of the date of acquisition, and therefore no evidence that the vehicle was acquired during the subsistence of the marriage; and f. no evidence of any contribution by the Applicant, direct or indirect, towards its acquisition. Photographs of a motor vehicle establish that a motor vehicle bearing a particular registration mark exists. They do not establish who owns it, when it was acquired, or from what source it was paid for. Ownership of a motor vehicle in Kenya is ordinarily evidenced, at the least prima facie, by the records of the registering authority as reflected in the logbook. The Applicant produced neither the logbook nor a records search, either of which would have been readily obtainable and would have settled the question conclusively one way or the other. Her failure to produce evidence so obviously within reach invites the adverse inference permitted by Section 112 of the Evidence Act. 41. Section 107 of the Evidence Act places upon the Applicant the burden of proving the facts she asserts, and the standard, though only that of a balance of probabilities, is not displaced by the Respondent's silence. A Claimant does not succeed merely because the Defendant leads no evidence; she succeeds because she has established a prima facie case which the Defendant has failed to answer. On this head the Applicant has not crossed that threshold. There is nothing for the Respondent to answer. 42. I am fortified in this conclusion by the observation that a finding of ownership adverse to a third party who is not before the Court, made on the strength of photographs alone, would offend the rule of natural justice expressed in the maxim audi alteram partem. 43. The claim in respect of Motor Vehicle Registration Number KAM 458F therefore fails for want of proof and is dismissed. I make no finding as to who in fact owns that vehicle; the question does not arise for determination and is not determined. 15 HCCC E001 OF 2024 Issue iv: Contribution 45. Section 2 of the Act defines "contribution" to mean monetary and nonmonetary contribution, and expressly includes domestic work and management of the matrimonial home, child care, companionship, management of family business or property, and farm work. The definition is deliberately expansive. Parliament thereby resolved, in favour of the homemaker, the long-standing controversy which had bedevilled the jurisprudence under Section 17 of the repealed Married Women's Property Act, 1882. 46. In L W K v S K G [2024] KEHC 11212 (KLR), following J O O v M B O, the Court reasoned that Article 45(3) of the Constitution underscores equality and fairness between spouses; that each party's contribution to the acquisition of mat
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