Skip to content
JudgmentLucy Wanjiku Gitonga VS George Gitonga Waruru25 min read

Lucy Wanjiku Gitonga VS George Gitonga Waruru

High Court at Nyeri High Court · · Maureen Odero


HIGH COURT CIVIL CASE NO. E008 OF 2021

LUCY WANJIKU GITONGA……………………………….…….PLAINTIFF

VERSUS

GEORGE GITONGA WARURU…………..………………….DEFENDANT

JUDGEMENT

1.  The Plaintiff LUCY WANJIKU GITONGA filed in the High Court the

Originating Summons dated 3rd August 2021 seeking for orders:-

1. THAT a declaration do issue that the properties listed herein constitute matrimonial property and are held by the Respondent in trust for the Applicant namely:-

  (i) Land Parcel no. AGUTHI/GATITU/2430;

  (ii) Permanent House erected on land parcel no.

AGUTHI/GATITU/2430;

  (iii) Motor vehicle registration number KBN 844Q.

  (iv) Proceeds from the sale of the non-permanent house

                          built on their ancestral land at Gititu

                (v)  Proceeds from the sale of motor vehicle Registration

     number KBL 263P;

2. THAT a declaration do issue that the Applicant is entitled to a 80% share of the suit properties and an order for the settlement of the said share by registration or vesting of the same in favour of the Applicant.

3. THAT a specific order do issue that one of the suit properties Land Parcel no. AGUTHI/GATITU/2430 on which the matrimonial home is situated be registered in the name of the Applicant.

4. THAT the Respondent be ordered to deliver accounts in respect to proceeds of sale collected from the sale of motor vehicle registration number KBL 263P sold during subsistence of marriage in the year 2017 and further pay to the half share of the proceeds therefrom, in default thereof the said share be compensated with part of the Respondent’s share of the rest of the suit properties.

5. THAT the Respondent be ordered to deliver accounts in respect to proceeds from the sale of their non-permanent house situated at their ancestral home in Gichira sold during subsistence of the marriage around 2009 to the Respondent’s brother without the Applicant’s knowledge and consent and further pay to the Applicant half share of the proceeds therefrom, in default thereof the said share be compensated with part of the Respondent’s share of the rest of the suit properties.

             6. THAT a specific order do issue for the Respondent to make a reasonable provision of Kenya Shillings Sixty Thousand (Kshs. 60,000/-) monthly for the maintenance of the Applicant herein following the dissolution of their marriage.

             7. THAT a specific order to issue for the Respondent to compensate the Applicant for the damages caused due his acts of cruelty and adultery which caused the Applicant psychological torture.

             8. THAT an order do issue declaring that 100% or such other higher proportion of the property afore stated is held by the Respondent in trust for the beneficial interest of the Applicant.

            9.  THAT the Respondent meets the costs of this suit and

                  incidentals thereto.

2.  The Summons was premised upon order 37 of the Civil Procedure

     Rules 2010, Section 7 of the Matrimonial Property Act, and all

    other enabling provisions of the law and was supported by the Affidavit

    of even date and the Supplementary Affidavit dated 26th April 2022 both

    sworn by the Plaintiff.

3.  The Respondent GEORGE GITONGA WARURU opposed the Summons

    and filed a Replying Affidavit dated 2nd September 2021 as well as the

    Further Replying Affidavit dated 14th December 2022.

4. The Summons was canvassed by way of Vive Voce evidence.  The hearing commenced before the High Court at Nyeri on 20th May 2024.  Each side called one (1) witness, in support of their case.

BACKGROUND

5.    The Plaintiff and the Respondent were a married couple.  They initially

       got married under Kikuyu customary law in the year 1992 and 

       later solemnized their union through a Civil marriage in the year 2021.

      Their union was blessed with two (2) sons both of whom are now

      adults and are self-reliant.

6.    The couple later began to experience problems in their marriage and

       the Plaintiff filed Divorce Cause No. E1 of 2020.  Their marriage was

       then dissolved and a Decree Nisi was issued on 3rd August 2021.

7.    The Plaintiff then filed their suit seeking division of matrimonial property. 

      The matter was initially referred to Court Annexed Mediation but no

      settlement agreement was reached.  As such the matter was listed for

      hearing.

THE EVIDENCE

8.   The Plaintiff Lucy Wanjiku Gitonga told the court that she is a teacher

      employed by the Teachers Service Commission (TSC).  She confirms

      that she was once married to the Respondent but that they later

      divorced.

9.   The Plaintiff told the court that during the subsistence of their marriage

      the couple acquired the following properties:-

“(i) Land Parcel No. AGUTHI/GATITU/2430

(ii) Permanent House erected on Land parcel No.

  AGUTHI/GATITU/2430.

(iii) Motor Vehicle Registration number KBN 844Q.

(iv) A non-permanent house built on the Respondent’s

  ancestral land.

(v) Motor Vehicle Registration number KBL 263 P.

10.    The Plaintiff avers that in the year 2002.  She took out a loan of Kshs.

220,000 from Mwalimu Co-operative Savings and Credit Society Limited which she paid as part of the purchase price for the property known as Aguthi/Gatitu/2430, (hereinafter referred to as the ‘Skuta Property’) which property was registered in the joint names of both the Plaintiff and the Respondent.

11.  That in the year 2003 the Plaintiff commenced construction of the

       matrimonial home on the Skuta property.  She alleges that she single-

       handedly put up the matrimonial home without any assistance from the

       Respondent.  As such the Plaintiff prays that the ‘Skuta Property’ be

       allocated entirely to herself.

12.  The Plaintiff also states that in the year 2016, the couple purchased a

       vehicle Registration KBN 844Q which vehicle was registered in

       the name of the Respondent and which vehicle the Respondent has   

      been using to the exclusion of the Plaintiff.

13. That in the year 2011 the couple purchased a motor vehicle Registration No. KBL 263P which vehicle was also registered in the name of the Respondent.

14. The plaintiff avers that despite her having contributed towards the purchase of both vehicles, the Respondent later sold the vehicle Registration KBL 263P without her knowledge and/or consent despite the same being matrimonial property.

15. The Plaintiff also states that in the year 1997 the couple jointly built a temporary home in the Respondents ancestral home in Gichira-Tetu Sub-County.  That the Respondent later sold the house to his brother without the plaintiff’s knowledge and/or consent and refused to share the proceeds of sale with her despite her having contributed towards the construction of that house.

16. The Plaintiff further avers that she has taken several loans, and has invested financially in the matrimonial properties, that she ran the home and catered for bills and basic needs of the family without the assistance of the Respondent.  She alleges that the Respondents never contributed towards the education of their last born son, that he subjected her to mental anguish, and failed to maintain her as his spouse.  She therefore prays for division of the matrimonial property.

17. The Respondent vehemently opposed the Summons.  He confirms that he was once married to the Plaintiff and confirms that they are now divorced.

18. The Respondent confirms that the couple acquired the property known as Aguthi/Gatitu/2430 during the subsistence of their marriage by pooling their resources.  However the Respondent avers that he contributed the larger share towards the purchase price.

19.   The Respondent states that he was in charge of the construction of the

       Matrimonial home and states that the plaintiff made minimal

       contribution.

20.  The Respondent denies that the two vehicles constitute matrimonial

       property and states he single handedly purchased the vehicle

       Registration No. KBN 844Q.  He states that he built the temporary

       house on his ancestral land in the year 1995 and 1996.  That during

       this period the plaintiff had been interdicted and was not receiving any

       salary, thus she was not in a position to make any financial contribution,

       towards the construction of the temporary house.

21.  The Respondent states that he has supported his family to the best of

       his ability and that even after the couple divorced he has continued

       to provide support.  That the suit has merely been filed by the plaintiff

       in an attempt to impoverish him.  He prays that the ‘Skuta Property’

       be divided equally between them and urges the court to dismiss the

       plaintiffs suit.

22. At the close of the oral evidence the parties were invited to file written submissions.  The Plaintiff filed the written submissions dated 9th September 2024, whilst the Respondent relied upon his written submissions dated 31st October 2024.

ANALYSIS AND DETERMINATION

23.   I have carefully considered the Summons before this Court, the reply

       filed thereto, the evidence on record as well as the written submissions

       filed by both parties.  The issues which arise for determination are:-

(i) Which properties constitute matrimonial property.

(ii) How should the matrimonial property be divided.

  1. Matrimonial Property

24. It is common ground that the Plaintiff and the Respondent were once married to each other.  That they bore two sons together both of whom are now adults.  It is not in dispute that the couple are now divorced as evidenced by the Decree Nisi issued on 3rd August 2021 (see Annexture LWG ‘2’ to the Originating Summons).  Therefore the plaintiff and the Respondent were in a marital union from 1991 to August 2021 – a period of about twenty (20) years.

25.  Section 6(1) of the Matrimonial Properties Act 2013 defines

      ‘matrimonial property’ as follows:-

“6(1) For the purposes of this Act, Matrimonial

property Means -

  1. The matrimonial home or homes.
  2. Household goods and effects in the matrimonial

home or homes.

  1. Any other immovable and movable property jointly

owned and acquired during the subsistence of the

marriage.”

26. Regarding the property known as Aguthi/Gatitu/2340 (‘the Skuta property’) the evidence is that the same was purchased in the year 2002.  The Sale Agreement dated 18th November, 2002 (Annexture LWG 5 (b) to the Originating Summons) indicates that the Skuta Property was purchased from one Christina Kinyua.  The purchasers are named as George Gitonga Waruru and Lucy Wanjiku Nyawira i.e the plaintiff and the Respondent.

27.   The Title Document for the Skuta Property (Annexture LWG 6(b)’

        shows that the property is registered in the joint names of George

Gitonga Waruru and Lucy Wanjiku Nyawira.  Therefore it is quite

        clear that the property was jointly owned by the plaintiff and the

        Respondent.

28. Both the Plaintiff and the Respondent confirm that this was the matrimonial home where the couple lived together as man and wife and where they raised their children.  Therefore in terms of Section 6(1) (a) of the Matrimonial Property Act I find that this Skuta Property was matrimonial property.

29. Regarding the two motor vehicles Registration KBN 844Q and KBL 263P, these were acquired in the year 2016 and 2011 respectively.  Once again both vehicles were acquired during the subsistence of the marriage and both were registered in the name of the Respondent. 

30. Section 14 of the Matrimonial Property Act sets out two rebuttable presumptions in regard to property acquired during marriage as follows:-

“14. Where matrimonial property is acquired during the

marriage -

  1. In the name of one spouse, there shall be a

rebuttable presumption that the property is held in trust for the other spouse; and

  1. In the names of the spouses jointly, there shall be  

  a rebuttable presumption that their beneficial interests in the matrimonial property are equal.”

31. It is trite law that he who alleges must prove.  The Evidence Act places the burden of proof of any fact on the person who wishes to rely on the same section 107 of the Evidence Act Cap 80, Law of Kenya provides as follows:

“Burden of Proof

  1. Whoever desires any court to given judgment as to

any legal or liability dependent on the existence of facts which he asserts must prove that those facts exist.

  1. When a person is bound to prove the existence of

any fact it is said that the burden of proof lies on that person.”

32. In the case of NJOROGE VS NGARI [1985] KLR 480 the court stated that where a property is held in the name of one spouse, even if that property is registered in the name of one person but the other spouse made contributions towards its acquisition, then each spouse has a proprietary interest in said property.  The Court in that case held thus -

“Where a property is registered in the name of one spouse only the other spouse is required to prove contribution towards the acquisition of said property in order to establish beneficial interest thereto.”

        By this holding, the court gave effect to section 14 of the

Matrimonial Property Act.

33.  In the case of PWK -vs- JKG [2015] eKLR the court stated as

      follows:-

“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 properties 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 [1070] 2ALL ER 780 Page 788” [own emphasis]

34.  Similarly ALM -VS- JNN 920220 eKLR the court held that:

“Further Section 14(a) of the Act provides that where matrimonial property is acquired during the marriage in the name of the one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse.  In the instant case, the suit properties being matrimonial property as it was acquired during the subsistence of the marriage and being registered in the name of the defendant it can only be said that the said was held in trust for the Applicant.”

35. Finally in the celebrated case of PETER MBURU ECHARIA VS PRISCLLA NJERI ECAHRIA [2007] eKLR it was held thus:-

“It is clear from those cases that when dealing with disputes between husband and wife over property the court applies the general principles of law applicable in property disputes in all courts between all parties irrespective of the fact that they are married. Those principles as Lord Diplock said in Petti are those of English law of trusts.  The House of Lords specifically decided so in Gissing vs. Gissing. According to the English law of trusts it is only through the wife’s financial contribution, direct or indirect towards the acquisition of the property registered in the name of her husband that entitles her to a beneficial interest in the property.”  [own emphasis]

36. It manifest that Section 14 of the Matrimonial Property Act creates a trust in favour of a spouse with respect to the properties acquired during the subsistence of the marriage in the name of one spouse only. It is not disputed that the vehicle Registration KBN 844Q though registered in the sole name of the Respondent was acquired during the period when the couple were in a marital union.  The said vehicle therefore constitutes matrimonial property.

37. Regarding the other vehicle Registration No. KBL 2630, the same was sold and is now registered to a third party.  A copy of the log book (Annexture ‘LWG 9(a)’) indicates that said vehicle is now registered to Eco Bank Ltd and one Paul Mwangi Thiong’o.  The plaintiff ought to have complained about the sale/transfer of this vehicle much sooner.  As such said vehicle no longer exists as an asset belonging to either party.  The current owner of said vehicle is not a party to this matrimonial cause.  As such I find that the vehicle KBL 2630 does not constitute matrimonial property.

38.  Regarding the non-permanent house constructed on the Respondent

      ancestral land in GICHIRA the plaintiff has conceded that the land, in

      question does not belong to either herself or the Respondent.  That the

      said land is the Respondents family (ancestral) land and the same is

      registered in the name of the Respondents Grand-mother.

39. The Plaintiff however alleges that in the year 1997, she and the Respondent jointly put up a temporary house on the said land.  That the Respondent later sold this temporary structure to his brother and did not share the proceeds of sale with the plaintiff.

40. This house is not registered in the name of either the plaintiff nor the Respondent.  The same now belongs to the Respondents brother who is not a party to this suit.  The court will not make any orders regarding property belonging to a third party.  I find and hold that this temporary house does not constitute matrimonial property.

(ii) DIVISION OF MATRIMONIAL PROPERTY

41. The plaintiff claims a share in all the above properties which the court has identified as matrimonial property.  In order for the plaintiff to merit a share in the abovementioned properties she is under an obligation to prove her contribution towards the acquisition and/or development of the said property.

42.  Contribution by a spouse for purposes of sharing matrimonial property

      may be monetary or non-monetary or both.  According to section 2 of

      the Matrimonial Property Act;

“contribution” means monetary and non-monetary

             contribution and includes -

  1. Domestic work and management of the matrimonial

home;

          (b)   Child care;

          (c)  Companionship

(d)  Management of family business or property; and

          (e)  Farm work; [own emphasis]

43.  Non-monetary contribution is defined in the Act to include Domestic

      work, management of the matrimonial home, child care, management  

      of family business farm work and companionship.

44.  Section 7 of the Act provides that:-

“Subject to section 6(3), ownership of matrimonial property vests in the spouse 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.”

45.  In Federation of Women Lawyers Kenya (FIDA) -vs- Attorney

       General & another [2018] eKLR the court stated that:-

“The law recognizes equal worth and equal importance of the

        parties in marriage.  Thus the beneficial share of each spouse

       as the on the division of matrimonial property stands in Kenya

       ultimately depends on the parties proven respective

       proportions of financial contribution either direct or indirect

       towards the acquisition of the property.  First, the Act

      recognizes monetary and non-monetary contribution which is

      clearly defined.  By providing that a party walks out with his or

      her entitlement based on his or her contribution, the section

      entrenches the principle of equality in marriage.”  [Own

     emphasis]

46.  In UMM -vs- IMM [2014] eKLR the court was of the view that:

“As far as I can see it is the provisions of Sections 2, 6 and 7 of the Matrimonial property Act, 2013 fleshes out the right provided by Article 45(3).  By recognizing that both monetary and non-monetary contribution must be taken into account, it is congruent with the Constitutional provisions of Article 45 (3) of the Constitution that 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.  I take the view that at the dissolution of the marriage each partner should walk away with what he/she deserves.  What one deserves must be arrived at by considering her/his respective contribution whether it be monetary or non-monetary.  The bigger the contribution the bigger the entitlement.  Where there is evidence that a non-monetary contribution entitles a spouse to half of the marital property then the Courts should give it effect.  But to hold that Article 45(3) decrees an automatic 50:50 sharing could imperil the marriage institution.  It would give opportunity to a fortune seeker to contract a marriage, sit back without making any monetary or non-monetary contribution, distress the union and wait to reap half the marital property.  That surely is oppressive to the spouse who makes the bigger contribution.  That cannot be the sense of equality contemplated by Article 45(3).”  [own emphasis]

47.  This issue of how matrimonial properties should be divided was

       conclusively settled by the Supreme Court of Kenya in the case of

JOSEPH OMBOGI ONGENTOTO -VS- MARTHA BOSIBORI

      OGENTOTO Petition No. 11 of 2020 where it was held as follows:

“…….we also find that Article 45(3) acts as a means of providing for equality as at the time of dissolution of marriage but such equality can only mean that each party is entitled to their fair share of matrimonial property and no more.  Nowhere in the constitution do we find any suggestion that a marriage between parties automatically results in common ownership or co-ownership of property (hence vesting of property rights) and Article 45(3) was not designed of the purpose of enabling this court to pass property rights from one spouse to another by fact of marriage only….

……our view is that, while Article 45(3) deals with equality of the fundamental rights of spouses during and after dissolution of marriage, we must reiterate that equality does not mean the re-distribution of proprietary rights at the dissolution of a marriage.  Neither does our reading of this provision lead to the assumption that spouses are automatically entitled to a 50% share by fact of being married…

…….it is our finding that the stated quality under Article 45(3) means that the courts are to ensure that at the dissolution of a marriage, each party to a marriage gets a fair share of the matrimonial property based on their contribution.  This is best done by considering the respective contribution of each party to ensure no party is unfairly denied what they deserve as well as ensuring that no party is unfairly given more than what he or she contributed…

….Therefore, in the event that a marriage breaks down, the function of any court is to make a fair and equitable division of the acquired matrimonial property guided by the provisions of Article 45(3) of the Constitution.  To hold that Article 45(3) has the meaning of declaring that property should be automatically shared at the ratio of 50:50 would bring huge difficulties within marriages and Tuiyot, J (as he then was) has explained why above.  Noting the changing times and the norms in our society now, such a finding would encourage some parties to only enter into marriages, comfortably subsist in the marriage without making any monetary or non-monetary contribution, proceed to have the marriage dissolved then wait to be automatically given 50% of the marital property.  That could not have been the intention of our law on the subject.”  [own emphasis]

48.  Based on the above legal provisions and a plethora of other decided

     cases it is clear that despite the constitutional requirement that parties

     to a marital union shall have equal rights, each party must be able to

     prove either monetary or non-monetary contribution in order to merit

     entitlement to a share of the matrimonial property.

     (a)  Matrimonial Home

49.  It is conceded by both parties that they purchased the land known as

LR No AGUTHI/GATITU/2430 in the year 2002 during the

       subsistence of the marriage.  The couple thereafter constructed a home

       on said property which became the matrimonial home where both lived

       and raised their children.  The Plaintiff told the Court that their eldest

       son has also constructed a house on the said property.

50.  The plaintiff asks that she be allocated the entire ‘Skuta’ property

       which she alleges she took out a loan to purchase.  The plaintiff also

       claims that she single handedly financed the construction of the

       matrimonial home on that land without any assistance from the

       Respondent.

51.  The Title Document for this Skuta Property indicates that the same is

       registered in the joint names of the plaintiff and the Respondent

      (Annexture ‘’WG 6(b)’ to the Originating Summons.)

52.    An agreement for sale dated 18th November, 2002 names both the

Plaintiff and the Respondent as the Purchasers of the said property (Annexture ‘LWG 5(b)’).  A certificate of official search dated 6th January 2020 confirms that the Skuta Property is registered in the joint names of the plaintiff and the Respondent.

53.  The Plaintiff claims that it was she who paid the purchase price.  If the

       plaintiff purchased this property singlehandedly then why was the

       Respondent named as a joint purchaser and why was he registered as

       a joint owner of the property?

54.  The argument may be made that being in a lawful marital union with

       the Respondent which marriage the couple undoubtedly hoped would   

       endure forever, the Plaintiff purchased the ‘skuta property’ and then

       decided to have the same registered in the name of both herself and

       her husband.  The court must then determine whether the plaintiffs

       claim that she single handedly purchased this property has been

       proved. 

55.  The plaintiff states that in the year 2002 she took a loan of

Kshs. 213,000 from Mwalimu SACCO.  She availed a copy of the

      loan application form dated (Annexure ‘LWG 4(c)’).  The loan was

      duly disbursed (Annexture ‘LWG 4 ‘b’) and on 18th November 2002,

the Plaintiff withdrew a sum of Kshs. 213,000 from her KCB Account

      (See Annexture LWG 5(a)’)

56.  The purchase price for the skuta property was Kshs. 370,000.  The

       terms of payment were a deposit of Kshs. 230,000 to be paid on

       execution of the Agreement and the balance of Kshs. 145,000 to be

       paid at the time of transfer.  Since the property was eventually

       transferred to the purchasers it is quite safe to assume that the

       purchase price was paid in full.

57.  The Plaintiffs bank statement indicates that on 18th November 2002

       she withdrew an amount of Kshs. 213,000/= (see Annexture ‘LWG

       5(a)’) and on the same date the deposit of Kshs. 230,000 was paid

       for the purchase of the ‘Skuta Property’  Therefore one can take it

       that the loan secured was utilized to pay the deposit for the purchase

       of said property.

58.  Annexture ‘LWG 6(a)’ is an acknowledgement by the Seller that the

      balance of Kshs. 145,000 was paid pursuant to the sale Agreement. 

      This acknowledgement is not dated.  The purchaser Chistina Wakiuru

Kinyua confirms having received from both the plaintiff and the

      Respondent the sum of Kshs. 145,000 as full and final payment for the

     suit land.

59.  There is no evidence to show the source of this amount of Kshs.  

145,000.  More pertinently there is no evidence adduced by the plaintiff

      to show that the said funds originated from herself.  The seller

      acknowledges receipt of the final payment from both purchasers.  The

      seller was not called as a witness to confirm who out of the two paid

      this amount of Kshs. 145,000 to her.

60.  The court has no reason to dismiss the Respondents contention that he

       paid part of the purchase price.  The Respondent was at the material

       time a teacher employed by the Teachers Service Commission.  He

       was earning a salary as evidenced by the pay slips he has annexed. 

       Annexture ‘GWW2’ to the Replying Affidavit dated 21st September

2021.  Equally just like the plaintiff the Respondent undoubtedly had access to various loan and credit facilities.  As such the Respondent had the financial capacity to pay pay/contribute towards the purchase price for this property.

61.  Indeed under cross-examination the plaintiff says

“I spent more on the purchase of the land.  This is not reflected in the Agreement I paid a bigger portion of the purchase price……..”

62.  This statement amounts to a tacit admission that contrary to what the   

       plaintiff wants the court to believe the Respondent did make some

      financial contribution towards the purchase of the land in question. 

      Certainly the evidence does not show that the plaintiff single handly paid

      the entire purchase price as she has alleged.

63.  In the year 2003 the parties commenced construction of their

      matrimonial home on the skuta property.  The plaintiff claims that she

      single handedly financed the construction of the matrimonial home by

      utilizing various loan facilities and through her savings.  That she

      withdrew funds from her bank account which funds she gave to the

      Respondent to purchase materials and pay labour for the construction. 

      The plaintiff relies on a handwritten note book as well as copies of her

      bank statements as proof of the above Annextures ‘LW 67(a) (b) and

      (c).

64.  The hand written notes ‘LWG 7(b)’ are merely a list of the various

       payments made in respect of the construction.  There is no indication

       of who or from where those funds came from.  There is no clear

       notation that these funds were given by the plaintiff to the Respondent. 

       The notes are merely on record of funds utilized in construction which

       I believe the couple made in order to track their expenses.

65.  The Plaintiff claims that the Respondent did not make any non-monetary    

      contribution towards the matrimonial home.  She claims that she single

      handedly paid fees for their children purchased food and basically ran

      the home.  I find this claim hard to believe.

66.  According to the Respondent the couple pooled their resources to buy

      and develop the skuta property.  The Respondent told the court that

      he supervised the construction of the said property – such supervision

      amounts to non-monetary contribution towards the construction of the

      matrimonial home.

67.  The Plaintiff claimed that she single handedly paid school fees for the

       couple’s youngest son.  However she did not indicate who paid fees for

       the elder son – she did not state that she single handedly paid fees for

       both sons.  Indeed under cross-examination the plaintiff concedes that

“The Respondent was partly educating the children……”

68. The Respondent has annexed to his Replying Affidavit (Pages 187 to

195] proof of payment he made to JKUAT as fees for one of their sons.   

      The plaintiff goes on to admit that the Respondent participated in

      assisting financially to resolve an issue faced by their elder son at his

      work place.

69.  These are not the actions of a ‘dead-beat dad’.  It is quite evident that

       the Respondent participated in educating and raising the children. 

       The Respondent stated that for a period of time, the plaintiff

       had been interdicted and was not earning any salary.  The plaintiff

       admitted that she had for a period been suspended from work by the

TSC.  The Respondent has annexed at page 26 to his Replying Affidavit

      at the plaintiffs letter of interdiction which is dated 13th March

1995. 

70.  Indeed the Plaintiff under cross-examination admits that initially

       the couple lived in harmony with no major problems – much like any

      other married couple.  They shared duties and both contributed towards

      the maintenance of the home and the upkeep of their children.

71.  Obviously during the period the plaintiff was on suspension the

      Respondent had to have been providing for all the needs of the family.       

      Therefore the plaintiffs claim that she single handedly maintained

     and provided for the upkeep of the entire family throughout their

     marriage cannot be believed.

72.  Finally with regard to this Skuta Property I find that the parties jointly

      purchased the property and jointly constructed the matrimonial home. 

      The plaintiff has adduced evidence to show that he paid Kshs. 500,000

      towards the construction of a house for the couple’s son on this same

      property. 

73.  The plaintiff has not satisfied this Court that she is entitled to the entire

       property nor that she is entitled to a larger share in this Skuta

       Property than the Respondent.  The property was for several years

       from 2003 to 2018 the matrimonial home.  I find that each is entitled

       to a 50% (fifty percent) share of the property known as

Aguthi/Gatitu/2430 as well as all developments thereon.

(b)  Motor Vehicles

74.  The plaintiff claims a share of the motor vehicles Registration KBN 844

Q which was acquired during the subsistence of the marriage.  The

      plaintiff claims that she made direct financial contribution towards the

      purchase of the said motor vehicle.

75.  The said motor vehicle Registration KBN 844Q was purchased in the   

      year 2016.  A copy of the logbook and search (Annexture ‘LWG 8(a)’)

      indicate that said vehicle is registered to Platinum Credit Limited and  

George Gitonga Waruru (the Respondent).

76.  In his defence the Respondent stated that purchased this vehicle using

      a loan from Platinum Credit Society.  The Respondent has annexed   

      statements from Platinum Credit (Annexture ‘GGW3’ to the Replying

      Affidavit dated 21st September 2021).  The fact that the vehicle is

      registered in the joint names of both the Respondent and Platinum

Credit proves that indeed the purchase of the vehicle was financed by

Platinum Credit.

77.  On the other hand the plaintiff has not adduced any evidence to show

      that she made any contribution towards the purchase of said vehicle. 

      Accordingly I find that the plaintiff has not proved her claim to a share

      of this motor vehicle.

78.  The Plaintiff also prayed that the Respondent be ordered by court to

       pay her a monthly maintenance of Kshs. 60,000 (sixty thousand

       only).  In effect the plaintiff is praying that the court make an award of

       ‘alimony’ in her favour.

79.  The plaintiff also prayed to be awarded compensation for the

      Respondents alleged acts of cruelty against her.  These prayers

      cannot be canvassed in this suit which is a suit for division of matrimonial  

      property.  These are prayers which the plaintiff ought to have included

      in her Petition for Divorce which was already been heard and concluded. 

      I therefore dismiss prayers 6, 7 and 8 of this summons.

80.  Finally based on the foregoing this court makes the following orders.

(1)  THAT the following properties are declared by this court to

            constitute matrimonial properties

             (i)  Land Parcel No. AGUTHI/KATITU/2430.

             (ii) Permanent House erected on Land Parcel Number

                  AGUTHI/GATITU/2430.

             (iii) Motor Vehicle Registration No. KBN 844Q

(2) THAT a declaration is hereby issued that the plaintiff is   

           entitled to a 50% (fifty percent) share of the value of land

           Parcel No. AGUTHI/GATITU/2430 together with all building

           and developments thereon.

    (3) THAT the property known as AGUTHI/GATITU/2430 together

          with all buildings and developments thereon be valued and

          sold.  The proceeds of sale to be distributed between the

          plaintiff and the Respondent at a ratio of 50:50.

    (4)  In the Alternative

           Either party is at liberty and has the option

           to buy out the others interest in the above property.

     (5)  THAT prayers (4), (5), (6), (7) and (8) of the Originating

            Summons dated 3rd August 2021 are hereby dismissed

            entirely.

     (6)  This being a family matter each party to meet their own

            costs.

Dated in Nyeri this 21st day of February, 2025


    Lucy Wanjiku Gitonga VS George Gitonga Waruru Lucy Wanjiku Gitonga VS George Gitonga Waruru