A poem titled “On Marriage” by Kahlil Gibran is a timeless classic that beautifully reminds couple that while a partnership must endure the storms of life, the individuals within it must always remain free and distinct. It goes; Love one another, but make not a bond of love: Let it rather be a moving sea between the shores of your souls. Fill each other’s cup but drink not from one cup. Give one another of your bread but eat not from the same loaf. Sing and dance together and be joyous, but let each one of you be alone. Even as the strings of lute are alone though they quiver with the same music”
The petitioner and the respondent married in a holy matrimony at the turn of the millennium on 18th December 1999 at Joy Celebration Centre Upper Hill in Nairobi. They lived happily thereafter for close to 24 years and were blessed with four (4) children. However, the ties that bound them together in marriage were fickle, the turbulent currents shifted their boat drifting it further into the deep seas and eventually hit the bottom rock leading to a divorce and issuance of decree absolute on 13th march 2024, in divorce cause number E008 of 2023 before Kajiado Chief Magistrate court.
Having been married for long, the parties as is usually the case, acquired properties during the subsistence of their marriage. One such property the subject of this petition is KAJIADO/KAPUTEI-NORTH/10130.
By petition dated 5th July 2024 and filed in court on 10th July 2024, the petitioner prays to this honourable court to declare and order that she is the legal owner and thus entitled to 100% of all that property known as Kajiado/Kaputei-North/10130 and that the respondent be ordered to vacate that property. The petitioner further seeks a permanent injunction to restrain the respondent from interfering with her right to quietly own and enjoy the property as guaranteed by the constitution.
It is this particular property that the petitioner and the respondent are fighting for, the petitioner claiming the whole of it and the respondent an equitable share. The petitioner contends that the property KAJIADO/KAPUTEI-NORTH/10130 was purchased by her vide sale agreement dated 10th October 2011 by paying the initial deposit and thereafter took loans to finance the balance as evidence in the receipts produced as exhibits. Subsequently she started construction of the maisonette on the suit property again using her own resources without any contribution whatsoever from the respondent. The petitioner avers that on 26th June 2024, the respondent being a person of ungoverned temper, threatened her and the children forcing them to flee from the suit property for their own safety, an incident reported at the police station and an occurrence entry obtained. As a result of the respondent actions, the petitioner stated that she was forced to make alternative accommodation arrangements for herself and the children at great financial expense.
The respondent in his reply to the petition as regards the property in issue, avers that the same was acquired through joints efforts of both of them and that he specifically procured building materials and was responsible for furnishing the house making it ready for occupation. Therefore, as a result of his constructive investments in the property he is entitled to an equitable share of the same.
The respondent in his affidavit dated 15th October 2015 presented a background historical perspective of his marriage with the petitioner going back to when the petitioner was a 2nd year student at the University of Nairobi. The respondent avers that during that time, he was solely responsible for her upkeep and payment of tuition while she was studying at the university. The respondent avers that he was at the time working as a logistics Assistant Manager with International Logistics Company SDV and helped the respondent enrol for a Higher Diploma in Human Resource Management and later, with the assistance of his uncle secured a job for the petitioner in the organization she currently works in. According to the respondent, the petitioner persuaded him to resign from his job and concentrate on family projects which he did. During the pendency of the marriage, the parties through joint efforts acquired several properties including two rental units of four bedroom each at Nasra Estate along Kangundo road, three matatus, properties in Utawala Estate, Kitengela and KAJIADO/KAPUTEI-NORTH/10130.
The respondent contends that a family meeting was held in 2014, where responsibilities were shared out, and it was also agreed that all the properties be registered in the petitioner’s name for ease of financial access from lending institution.
The petitioner filed further affidavit dated 24th February 2025 in response to the respondent affidavit dated 15th October 2024. She denies the respondents assertion that he paid for her university tuition stating that she applied for and obtained students loan from Higher Education Loan Board which she later paid after securing a job as evidence by a certificate of clearance dated 2nd December 2011.And neither is it true that the respondent enrolled her for a Higher Diploma in Human Resource nor secured a job for her in the organization she currently works in contending that she got the job on merit based on her professional qualification. As regards the properties, the petitioner in a rejoinder avers that the respondents neither assisted in acquiring nor setting up of the building in Nasra Estate in Nairobi and that she bought them herself and built the rental houses to supplement her income. She also teamed up with one John Mburu and bought three matatus and involved the respondent to further expand on their wealth portfolio but unfortunately due to theft of one of the matatus and the turbulent business at the time, the matatu business ended.
The petitioner avers that in 2011, with enormous responsibilities on her shoulder, she decided to purchase a truck for the respondent to enable him do business on his own and supplement the family income. She took a loan from friends and imported a Mitsubishi truck and instructed the seller to put the respondent’s name as the buyer which was done. According to her the respondent started complaining that the truck was small and not fit for purpose. She sold it, took a loan and bought a bigger one reg number KBW 274Q which the respondent is currently using for business. The smaller truck was sold at ksh 900,000 and money deposited in the respondent account. The respondent then transferred ksh 740,000 into the petitioners account for purposes of settling some outstanding loan facility and it is therefore not true according to the petitioner, that the amount was the respondent contribution towards to the matrimonial home. The petitioner avers that the respondent did not procure any materials for the construction of the matrimonial home and if he did, then he was paid for as shown by the receipt he presented before the court. The receipts are impugned for the reason that they bear not of the vendors details and are conjured up in an attempt to convince the court.
The petitioner and the respondent reiterated their respective positions during the hearing of the petition on 31st July 2025.
Analysis and Determination
I have considered the petition, the response to the petition and the affidavits by the parties as well as the submissions by counsel and the authorities supplied.
The law on distribution of matrimonial property is firmly anchored in the Constitution and the Matrimonial property Act Cap 152 Laws of Kenya. The constitution in Article 45 (3) provides a broader foundational principle and states that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of marriage. The Matrimonial property Act therefore give effect to these broad constitutional principles in in relation to division of matrimonial properties in the event that parties to a marriage legally part way. Section 7 of the Act as regards matrimonial property sates 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”.
Section 9 of the Act deals with acquisition of interest in the property by contribution and states as follows;
“Where a spouse acquires property before or during the marriage and the property acquired during the marriage does not become matrimonial property, but the other spouse makes a contribution towards the improvements of the property, the spouse who makes contribution acquires a beneficial interest in the property equal to the contribution made”
Contribution as defined in section 2 of the Act means monetary and non-monetary contributions including but not limited to domestic work and management of matrimonial property, child care, companionship, management of family business or property and farm work.
I shall therefore be guided by the above constitutional provision and the matrimonial property Act as variously interpreted and applied by the superior courts in myriads of decision. Firstly, property KAJIADO/KAPUTEI-NORTH/10130 the subject of this petition is matrimonial property the same having been acquired in 2012 during the subsistence of the marriage. In T.M.V vs F.M.C. (2018) eklr the court observed that “for a property to qualify as matrimonial property, it ought to have been acquired during the subsistence of a marriage between the parties unless otherwise agreed that such property would not form part of matrimonial property”. The contention by the petitioner really is that the property was solely purchased and fully developed by her without any contributions or assistance of the respondent and that she is therefore entitled to it 100% to the exclusion of the respondent. On the other hand, the respondent in his counterclaim in response to the petition stakes claim to the property on account of his monetary and non-monetary contributions. In division of matrimonial property, the burden of proof lies on the party claiming beneficial interest to demonstrate their contribution whether monetary or non-monetary.
The petitioner, who is in formal employment with a reputable state corporation tendered evidence and produced a sale agreement entered into between herself and one Jane Kobilo Kiptoo for the purchase of the suit property and a title in her name issued on 11th January 2012. Evidence of payments by way of electronic fund transfer of Ksh 2,000,000 to the vendors account in Equity Bank was also produced in court. The petitioner avers that upon payment of the entire purchase price, she started constructions of a maisonette in the suit property and produced in evidence applications for building plans from the County Government of Kajiado as well as the receipts for various constructions material purchased. Owing to great financial burden, of paying rent and other commitments and despite the fact that the house was not fully complete, she moved in nonetheless in 2015 and lived therein until she moved out for fear of her safety. It is therefore her contention that she single handedly purchased and built the matrimonial property without help of the respondent. In cross examination by counsel for the respondent, the petitioner agreed that while she was away on duty in Malaba, the respondent took care of the children and the house and in her estimation, the respondent’s contribution in that regard was about 20%.
The respondent in his pleadings and evidence in chief contend that he made both financial and non-financial contribution to the acquisition of the property and its development. The respondent testified that he was in transport business initially operating matatus business which he later sold and applied the proceeds to help purchase the property. He also avers that he deposited 740,000 into the petitioners account to fund the construction of the matrimonial house. This assertion by the respondent was strongly contested by the petitioner who maintained that the purchase and construction of KAJIADO/KAPUTEI-NORTH/10130 was done by herself with minimal input if any of the respondent. As regards the matatu business, the petitioner stated that she was the one operating it and later on sold two of the vehicles after one was stolen. She told the court that she took a loan and purchased a truck for the respondent and allow him to do business and engage in meaningful work. The truck was later sold by the respondent for Ksh 900,000 of which 740,000 was deposited into her account by the respondent for purposes of importing a bigger truck which the respondent is currently using for business. The petitioner paid an amount of USD 22,200 and other additional importation cost and taxes for the said truck. It is therefore not true according to the petitioner that the amount of Ksh.740,000 deposited in her account by the respondent was for purchase and development of the matrimonial property.
Although the respondent contend that he sold the matatus in 2013 and deposited the proceeds into the petitioners account for use in purchase of the property in issue, there is no evidence of money deposited in the petitioners account nor was there a sale agreement in respect of the matatus. There is however evidence on record by way of sale agreement demonstrating that the property was purchased and registered in the name of the petitioner a year before the matatus were sold.
There is a rebuttable presumption in section 14 (a) of the matrimonial Act that where a property is registered in the name of one spouse, the same is held in trust for the other. It is therefore the responsibility of the respondent to demonstrate that notwithstanding the fact that the property is registered solely in the name of the petitioner, he has beneficial interest in it which has accrued by virtual of his/her contribution to its acquisition or development. In JOO vs MBO KESC 4(KLR) referred to by counsel for the petitioner, the court held as follows;
“We are persuaded by the above reasoning and should add that the equality provision in Article 45(3) does not entitle any court to vary existing proprietary rights of parties and take away what belongs to one spouse and award half of it to another spouse that has contributed nothing to its acquisition merely because they were or are married to each other. To do so would mean that Article 40(1) and (2) of the constitution which protect the right to property would have no meaning which would not have been the intention of the drafters in Kisaakye language”
An examination of the evidence presented to court by the petitioner clearly shows that she made direct payments towards the acquisition of KAJIADO/KAPUTEI-NORTH/10130 vide electronic fund transfer of ksh 2,000,000 to one Jane Kobila Kiptoo and the sale agreement dated 10th October 2011. She also substantially participated in construction of the house as evidenced by the various receipts attached to her affidavit. It is on the basis of her substantial contribution that the petitioner requests the court to find that she is entitled to the matrimonial home to the exclusion of the respondent.
On the other hand, the respondent’s testimony that he too directly participated in acquisition of the property and its development is not supported by cogent and credible evidence. The averments that he sold the matatus in 2013 and used the proceeds to pay 2.7 million towards acquisition lacks supporting documents. Firstly, as demonstrated by the petitioner, the property was purchased in 2011 and title issued in the name of the petitioner in 2012. It could not therefore be true that the proceeds of vehicles sold in 2013 could be utilized to purchase a property already acquired in 2012.The petitioner was also able to demonstrate by evidence the amount of 740, 000 paid into her account by the respondent was proceeds of sale of a smaller truck and for purposes of importing a bigger truck. The petitioner tendered documentary evidence of payment of 22,200 USD paid to a beneficiaries account for importation of a Mitsubishi truck from Japan. Evidence of additional costs and taxes paid by the petitioner were also produced. That the Mitsubishi truck is under the use and possession of the respondent was not controverted.
As stated in the case of UMM vs IMM (2014) Eklr, “at the dissolution of marriage, each partner should walk away with what he/she deserves. What one deserves must be arrived at by considering his/her respective contribution whether it be monetary or non-monetary. The bigger the contribution, the bigger the entitlement”.
It is not in dispute that the petitioner and the respondent were married to each from 18th December 1999 until 13th March 2024 when their union effectively ended a period of over 24 years. During the period of their marriage, the couple were blessed with four (4) children and acquired several properties as mentioned earlier in this judgement. The upbringing of the children is a responsibility bestowed on both parents and the respondent as confirmed by the petitioner, took care of them while she was working in different work stations especially in Malaba. These contributions non-financial as they may be, are not insignificant. In CKM vs PMK KEHC 15353 KLR. Justice H. Namisi observed that managing a home, providing a stable environment for the family, and offering companionship are not mere incidentals of marriage; they are recognized by law as contributions that create a beneficial interest in the property acquired. The supreme court in JOO vs MBO on the aspect of non-monetary contribution affirmed and recognized the value of indirect contribution by a spouse to acquisition of property.
It is therefore my considered view that although the petitioner made direct and substantial contribution to the acquisition and development of KAJIADO/KAPUTEI-NORTH/10130, the respondent non-monetary contribution must be taken into account in the ultimate division of the above property.
1. Consequently, and based on the evidence placed before the court, I find that the petitioner is entitled to Eighty five percent (85%) share of KAJIADO/KAPUTEI-NORTH/10130, whilst the respondent is entitled to fifteen percent (15%) share.
2. THAT the petitioner shall be at liberty to buy out the respondent’s respective share of the property after valuation of the same which shall be done within 90 days of todays date.
3. THAT if the petitioner fails to exercise the buyout option, the property shall be sold and the net proceeds shared in the proportion set out in (1) above.
4. THAT for purposes of execution of the orders above, the parties shall within 30 days of the date hereof, agree on a single valuer in default of agreement, the Deputy Registrar of this court shall appoint a valuer from a list of prequalified valuers.
5. THAT the respondent is directed to allow the petitioner and the valuer access to the property for purposes of valuation.
The petitioner and the respondent married in a holy matrimony at the turn of the millennium on 18th December 1999 at Joy Celebration Centre Upper Hill in Nairobi. They lived happily thereafter for close to 24 years and were blessed with four (4) children. However, the ties that bound them together in marriage were fickle, the turbulent currents shifted their boat drifting it further into the deep seas and eventually hit the bottom rock leading to a divorce and issuance of decree absolute on 13th march 2024, in divorce cause number E008 of 2023 before Kajiado Chief Magistrate court.
Having been married for long, the parties as is usually the case, acquired properties during the subsistence of their marriage. One such property the subject of this petition is KAJIADO/KAPUTEI-NORTH/10130.
By petition dated 5th July 2024 and filed in court on 10th July 2024, the petitioner prays to this honourable court to declare and order that she is the legal owner and thus entitled to 100% of all that property known as Kajiado/Kaputei-North/10130 and that the respondent be ordered to vacate that property. The petitioner further seeks a permanent injunction to restrain the respondent from interfering with her right to quietly own and enjoy the property as guaranteed by the constitution.
It is this particular property that the petitioner and the respondent are fighting for, the petitioner claiming the whole of it and the respondent an equitable share. The petitioner contends that the property KAJIADO/KAPUTEI-NORTH/10130 was purchased by her vide sale agreement dated 10th October 2011 by paying the initial deposit and thereafter took loans to finance the balance as evidence in the receipts produced as exhibits. Subsequently she started construction of the maisonette on the suit property again using her own resources without any contribution whatsoever from the respondent. The petitioner avers that on 26th June 2024, the respondent being a person of ungoverned temper, threatened her and the children forcing them to flee from the suit property for their own safety, an incident reported at the police station and an occurrence entry obtained. As a result of the respondent actions, the petitioner stated that she was forced to make alternative accommodation arrangements for herself and the children at great financial expense.
The respondent in his reply to the petition as regards the property in issue, avers that the same was acquired through joints efforts of both of them and that he specifically procured building materials and was responsible for furnishing the house making it ready for occupation. Therefore, as a result of his constructive investments in the property he is entitled to an equitable share of the same.
The respondent in his affidavit dated 15th October 2015 presented a background historical perspective of his marriage with the petitioner going back to when the petitioner was a 2nd year student at the University of Nairobi. The respondent avers that during that time, he was solely responsible for her upkeep and payment of tuition while she was studying at the university. The respondent avers that he was at the time working as a logistics Assistant Manager with International Logistics Company SDV and helped the respondent enrol for a Higher Diploma in Human Resource Management and later, with the assistance of his uncle secured a job for the petitioner in the organization she currently works in. According to the respondent, the petitioner persuaded him to resign from his job and concentrate on family projects which he did. During the pendency of the marriage, the parties through joint efforts acquired several properties including two rental units of four bedroom each at Nasra Estate along Kangundo road, three matatus, properties in Utawala Estate, Kitengela and KAJIADO/KAPUTEI-NORTH/10130.
The respondent contends that a family meeting was held in 2014, where responsibilities were shared out, and it was also agreed that all the properties be registered in the petitioner’s name for ease of financial access from lending institution.
The petitioner filed further affidavit dated 24th February 2025 in response to the respondent affidavit dated 15th October 2024. She denies the respondents assertion that he paid for her university tuition stating that she applied for and obtained students loan from Higher Education Loan Board which she later paid after securing a job as evidence by a certificate of clearance dated 2nd December 2011.And neither is it true that the respondent enrolled her for a Higher Diploma in Human Resource nor secured a job for her in the organization she currently works in contending that she got the job on merit based on her professional qualification. As regards the properties, the petitioner in a rejoinder avers that the respondents neither assisted in acquiring nor setting up of the building in Nasra Estate in Nairobi and that she bought them herself and built the rental houses to supplement her income. She also teamed up with one John Mburu and bought three matatus and involved the respondent to further expand on their wealth portfolio but unfortunately due to theft of one of the matatus and the turbulent business at the time, the matatu business ended.
The petitioner avers that in 2011, with enormous responsibilities on her shoulder, she decided to purchase a truck for the respondent to enable him do business on his own and supplement the family income. She took a loan from friends and imported a Mitsubishi truck and instructed the seller to put the respondent’s name as the buyer which was done. According to her the respondent started complaining that the truck was small and not fit for purpose. She sold it, took a loan and bought a bigger one reg number KBW 274Q which the respondent is currently using for business. The smaller truck was sold at ksh 900,000 and money deposited in the respondent account. The respondent then transferred ksh 740,000 into the petitioners account for purposes of settling some outstanding loan facility and it is therefore not true according to the petitioner, that the amount was the respondent contribution towards to the matrimonial home. The petitioner avers that the respondent did not procure any materials for the construction of the matrimonial home and if he did, then he was paid for as shown by the receipt he presented before the court. The receipts are impugned for the reason that they bear not of the vendors details and are conjured up in an attempt to convince the court.
The petitioner and the respondent reiterated their respective positions during the hearing of the petition on 31st July 2025.
Analysis and Determination
I have considered the petition, the response to the petition and the affidavits by the parties as well as the submissions by counsel and the authorities supplied.
The law on distribution of matrimonial property is firmly anchored in the Constitution and the Matrimonial property Act Cap 152 Laws of Kenya. The constitution in Article 45 (3) provides a broader foundational principle and states that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of marriage. The Matrimonial property Act therefore give effect to these broad constitutional principles in in relation to division of matrimonial properties in the event that parties to a marriage legally part way. Section 7 of the Act as regards matrimonial property sates 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”.
Section 9 of the Act deals with acquisition of interest in the property by contribution and states as follows;
“Where a spouse acquires property before or during the marriage and the property acquired during the marriage does not become matrimonial property, but the other spouse makes a contribution towards the improvements of the property, the spouse who makes contribution acquires a beneficial interest in the property equal to the contribution made”
Contribution as defined in section 2 of the Act means monetary and non-monetary contributions including but not limited to domestic work and management of matrimonial property, child care, companionship, management of family business or property and farm work.
I shall therefore be guided by the above constitutional provision and the matrimonial property Act as variously interpreted and applied by the superior courts in myriads of decision. Firstly, property KAJIADO/KAPUTEI-NORTH/10130 the subject of this petition is matrimonial property the same having been acquired in 2012 during the subsistence of the marriage. In T.M.V vs F.M.C. (2018) eklr the court observed that “for a property to qualify as matrimonial property, it ought to have been acquired during the subsistence of a marriage between the parties unless otherwise agreed that such property would not form part of matrimonial property”. The contention by the petitioner really is that the property was solely purchased and fully developed by her without any contributions or assistance of the respondent and that she is therefore entitled to it 100% to the exclusion of the respondent. On the other hand, the respondent in his counterclaim in response to the petition stakes claim to the property on account of his monetary and non-monetary contributions. In division of matrimonial property, the burden of proof lies on the party claiming beneficial interest to demonstrate their contribution whether monetary or non-monetary.
The petitioner, who is in formal employment with a reputable state corporation tendered evidence and produced a sale agreement entered into between herself and one Jane Kobilo Kiptoo for the purchase of the suit property and a title in her name issued on 11th January 2012. Evidence of payments by way of electronic fund transfer of Ksh 2,000,000 to the vendors account in Equity Bank was also produced in court. The petitioner avers that upon payment of the entire purchase price, she started constructions of a maisonette in the suit property and produced in evidence applications for building plans from the County Government of Kajiado as well as the receipts for various constructions material purchased. Owing to great financial burden, of paying rent and other commitments and despite the fact that the house was not fully complete, she moved in nonetheless in 2015 and lived therein until she moved out for fear of her safety. It is therefore her contention that she single handedly purchased and built the matrimonial property without help of the respondent. In cross examination by counsel for the respondent, the petitioner agreed that while she was away on duty in Malaba, the respondent took care of the children and the house and in her estimation, the respondent’s contribution in that regard was about 20%.
The respondent in his pleadings and evidence in chief contend that he made both financial and non-financial contribution to the acquisition of the property and its development. The respondent testified that he was in transport business initially operating matatus business which he later sold and applied the proceeds to help purchase the property. He also avers that he deposited 740,000 into the petitioners account to fund the construction of the matrimonial house. This assertion by the respondent was strongly contested by the petitioner who maintained that the purchase and construction of KAJIADO/KAPUTEI-NORTH/10130 was done by herself with minimal input if any of the respondent. As regards the matatu business, the petitioner stated that she was the one operating it and later on sold two of the vehicles after one was stolen. She told the court that she took a loan and purchased a truck for the respondent and allow him to do business and engage in meaningful work. The truck was later sold by the respondent for Ksh 900,000 of which 740,000 was deposited into her account by the respondent for purposes of importing a bigger truck which the respondent is currently using for business. The petitioner paid an amount of USD 22,200 and other additional importation cost and taxes for the said truck. It is therefore not true according to the petitioner that the amount of Ksh.740,000 deposited in her account by the respondent was for purchase and development of the matrimonial property.
Although the respondent contend that he sold the matatus in 2013 and deposited the proceeds into the petitioners account for use in purchase of the property in issue, there is no evidence of money deposited in the petitioners account nor was there a sale agreement in respect of the matatus. There is however evidence on record by way of sale agreement demonstrating that the property was purchased and registered in the name of the petitioner a year before the matatus were sold.
There is a rebuttable presumption in section 14 (a) of the matrimonial Act that where a property is registered in the name of one spouse, the same is held in trust for the other. It is therefore the responsibility of the respondent to demonstrate that notwithstanding the fact that the property is registered solely in the name of the petitioner, he has beneficial interest in it which has accrued by virtual of his/her contribution to its acquisition or development. In JOO vs MBO KESC 4(KLR) referred to by counsel for the petitioner, the court held as follows;
“We are persuaded by the above reasoning and should add that the equality provision in Article 45(3) does not entitle any court to vary existing proprietary rights of parties and take away what belongs to one spouse and award half of it to another spouse that has contributed nothing to its acquisition merely because they were or are married to each other. To do so would mean that Article 40(1) and (2) of the constitution which protect the right to property would have no meaning which would not have been the intention of the drafters in Kisaakye language”
An examination of the evidence presented to court by the petitioner clearly shows that she made direct payments towards the acquisition of KAJIADO/KAPUTEI-NORTH/10130 vide electronic fund transfer of ksh 2,000,000 to one Jane Kobila Kiptoo and the sale agreement dated 10th October 2011. She also substantially participated in construction of the house as evidenced by the various receipts attached to her affidavit. It is on the basis of her substantial contribution that the petitioner requests the court to find that she is entitled to the matrimonial home to the exclusion of the respondent.
On the other hand, the respondent’s testimony that he too directly participated in acquisition of the property and its development is not supported by cogent and credible evidence. The averments that he sold the matatus in 2013 and used the proceeds to pay 2.7 million towards acquisition lacks supporting documents. Firstly, as demonstrated by the petitioner, the property was purchased in 2011 and title issued in the name of the petitioner in 2012. It could not therefore be true that the proceeds of vehicles sold in 2013 could be utilized to purchase a property already acquired in 2012.The petitioner was also able to demonstrate by evidence the amount of 740, 000 paid into her account by the respondent was proceeds of sale of a smaller truck and for purposes of importing a bigger truck. The petitioner tendered documentary evidence of payment of 22,200 USD paid to a beneficiaries account for importation of a Mitsubishi truck from Japan. Evidence of additional costs and taxes paid by the petitioner were also produced. That the Mitsubishi truck is under the use and possession of the respondent was not controverted.
As stated in the case of UMM vs IMM (2014) Eklr, “at the dissolution of marriage, each partner should walk away with what he/she deserves. What one deserves must be arrived at by considering his/her respective contribution whether it be monetary or non-monetary. The bigger the contribution, the bigger the entitlement”.
It is not in dispute that the petitioner and the respondent were married to each from 18th December 1999 until 13th March 2024 when their union effectively ended a period of over 24 years. During the period of their marriage, the couple were blessed with four (4) children and acquired several properties as mentioned earlier in this judgement. The upbringing of the children is a responsibility bestowed on both parents and the respondent as confirmed by the petitioner, took care of them while she was working in different work stations especially in Malaba. These contributions non-financial as they may be, are not insignificant. In CKM vs PMK KEHC 15353 KLR. Justice H. Namisi observed that managing a home, providing a stable environment for the family, and offering companionship are not mere incidentals of marriage; they are recognized by law as contributions that create a beneficial interest in the property acquired. The supreme court in JOO vs MBO on the aspect of non-monetary contribution affirmed and recognized the value of indirect contribution by a spouse to acquisition of property.
It is therefore my considered view that although the petitioner made direct and substantial contribution to the acquisition and development of KAJIADO/KAPUTEI-NORTH/10130, the respondent non-monetary contribution must be taken into account in the ultimate division of the above property.
1. Consequently, and based on the evidence placed before the court, I find that the petitioner is entitled to Eighty five percent (85%) share of KAJIADO/KAPUTEI-NORTH/10130, whilst the respondent is entitled to fifteen percent (15%) share.
2. THAT the petitioner shall be at liberty to buy out the respondent’s respective share of the property after valuation of the same which shall be done within 90 days of todays date.
3. THAT if the petitioner fails to exercise the buyout option, the property shall be sold and the net proceeds shared in the proportion set out in (1) above.
4. THAT for purposes of execution of the orders above, the parties shall within 30 days of the date hereof, agree on a single valuer in default of agreement, the Deputy Registrar of this court shall appoint a valuer from a list of prequalified valuers.
5. THAT the respondent is directed to allow the petitioner and the valuer access to the property for purposes of valuation.