1. The claimant and the respondent are former spouses. They got married in 2003. Their union was blessed with three children, namely Sarafina Gabrielle Rule, born on the14th day of May 2002; Ashanti Imara Rule, born on the 31st day of August 2003; and Havana Elizabeth Rule, born on the 12th day of July 2007. Their marriage was dissolved through a certificate making decree nisi absolute dated 24th March 2023.
2. The claimant filed the originating summons dated 6th February 2023. Vide the said summons, she averred that the respondent had, on several occasions, attempted to evict her from a property described as Garden Cottage. Garden Cottage is a house erected on Title No. Kwale/Galu Kinondo/646, which is situated along Beach Road, Galu Beach, Diani, Kwale County. The said property is registered in the name of Monkey Beach Ltd, a limited liability company. The claimant contends that Monkey Beach Ltd is a family-owned company jointly owned by her and the respondent. On the other hand, the respondent avers that Garden Cottage is his property and that the claimant has no right to live in it.
3. The claimant averred that she has 1 share in Monkey Beach Ltd and that the respondent owns 49 shares in the interested party in trust for her, which makes her total proprietary interest in the interested party to be 50%, which is equal to that held by the respondent.
4. She further asserted that she made a significant contribution to the acquisition, development, and maintenance of the property. Magdalene stated that she supported the respondent in his managerial role at Galu Sea Lodge, where she was responsible for administration, marketing, and guest relations, without pay. She further stated that she and the respondent paid for family expenses from their jointly owned internet businesses. Most of the funds earned were deposited into their joint Barclays Bank account, which was closed in 2015.
5. She further stated that from 2009 to 2011, she worked at Belro Investments Ltd as a property manager, managing tourist properties in Diani Beach, and used the income earned to cover family expenses.
6. Magdalene averred that the suit property was purchased in the year 2011 for Kes 10,000,000 as a family home by way of a purchase of the entire share capital of Monkey Beach Limited, which holds the title to the suit property and loan assignment via deed of assignment dated 12 August 2011. She contended that she spent Kes 319,520 on renovations and Kes 400,000 on furnishing the house.
7. She averred that after they celebrated their marriage, they lived on the suit property, and that is where all their children were born. With the respondent’s agreement, she left for further studies in Melbourne, Australia, in 2012 and completed them in 2017. Her application was supported by the respondent, who wrote a letter dated 22nd January 2012 to the Australian embassy, in which he declared that Magdalene was a co-owner of the matrimonial home and acknowledged her contribution to the family’s wealth.
8. She deponed that since the purchase of the suit property, she had consistently paid for the maintenance and management of the house, and has been the one paying the house help to clean the home to a high standard, even in her absence.
9. In response, the interested party filed a replying affidavit sworn by the respondent on 28th October 2023. He denied the claim by the claimant and stated that the interested party is a private company limited by shares that has perpetual succession. The company, in its corporate name, has the power to sue and be sued, to hold property in its own name, and further has a memorandum of articles of association that clearly defines the workings of the company and the relationship between directors and shareholders, amongst others.
10. He stated that the interested party is the registered owner of all that piece of property known as Garden Cottage, Title No Kwale/Galu Kinondo/646, Beach Road, Galu Beach Diani.
11. Mr. Rule stated that he is the founding director of the interested party and that he was in charge of its day-to-day management. He further stated that he and the claimant are co-directors and shareholders of the interested party and were also spouses from 16th December 2001 until 24th March 2023, when the marriage was dissolved. He agreed with the claimant that their marriage was blessed with three issues.
12. He averred that their respective shares and interests in the property registered in the name of the interested party are distinct and not linked to matrimonial property. In his view, the suit property was worth Kes 37,000,000. He denied that he holds any shares in the interested party in trust for the claimant as alleged.
13. Mr. Rule contended that he had been living in the suit property continuously and uninterrupted for the last 23 years, from as early as 2000, before he met the claimant. In 2011, he purchased shares in the interested party. Since the suit property had appreciated, and he could not afford it on his own, he approached two investors, Alec Van Wijk and Guido Pallada, Belgian and Dutch nationals, respectively to pool resources together, and on 13th August 2010, they formed a development company called Soaring Holdings Limited, where each of the 3 shareholders contributed capital for purchase and development of the property with the title duly transferred to said company. They agreed that he could purchase the property to be owned by the interested party from Soaring Holdings Limited at a consideration of Kes 14,000,000.
14. He averred that on 9th September 2011, he purchased 99 ordinary shares from Alec Roger Agnes Van Wijk at the consideration of Kes 1,368,180 for the benefit of the interested party and 1 ordinary share from Benjamin Nyanya Mutua at a consideration of Kes 100 in the claimant’s name for the benefit of the interested party. Mr. Rule contended that the claimant did not contribute any funds for the purchase of the shares, as the same were granted to her by the respondent, thus she holds the same in trust. Further, the claimant did not contribute to the share capital and was only brought on board as a director and shareholder of the interested party due to legal provisions/requirements.
15. He stated that any money towards business expenses was borne by him, and most money in their joint account emanated from his personal bank accounts in Australia, including from his Australian family trust funds. He contended that the Barclays bank account also benefited from funds from his other sources. He stated that the only contribution the claimant has ever made in the form of improvement is about Kes 500,000, which he would be willing to buy the same from her and offset the same against her shares.
16. He stated that the claimant, being a co-director, collects hefty rent of up to Kes 11,000,000 per annum from business ventures of providing short-term guest rentals via Airbnb, TripAdvisor, and other similar apps.
17. He denied that he had attempted to evict the claimant and stated that he has no intention of evicting or interfering with her access to the property. Mr. Rule stated that the claimant lives in Australia, where her primary residence is, and is at liberty to stay in the suit property or that of the sister company. He further contended that he has no intention of selling, leasing, mortgaging, transferring, or otherwise disposing of the suit property and/or selling, leasing, charging, transferring, and/or disposing of his shares in the interested party. Mr. Rule further stated that he has no intention of demolishing, removing, bringing down, wasting, damaging, or destroying the suit property, and on the contrary, only seeks to improve it as it has been his home for the last 23 years.
18. He stated that this court’s jurisdiction is limited to the respective rights of husband and wife to shares in a company, to ascertain their respective beneficial rights, and declaring the number of shares held in trust, but not to distribute properties registered in the name of a company in which both spouses are shareholders, or to order the transfer of the legal titles to property or to pass proprietary interest from one spouse to the other.
19. In conclusion, he urged the court to dismiss the summons with costs.
20. The respondent filed an affidavit and stated that Net Limited and Ethernet Limited were all struggling financially. He averred that he had to keep on loaning the said businesses money. Mr. Rule contended that the claimant held her single share in the interested party in trust for him as her husband and was, in fact, drawing a salary of Kes 18,377 out of which she bought a car worth Kes 600,000 in cash. He denied that there were any savings from the two companies, either by himself or the claimant.
21. He averred that the money he used acquired the interested party and other companies, Galu Beach House One Ltd, Galu Beach Villa One Ltd, and Galu Beach Villa Two Limited, where the claimant holds shares in trust for him were purchased with funds from his inheritance from Australia. That he transferred USD 170,098.03, equivalent to Kes 14,235.406.25, to Kenya to purchase the property, which initially was his rented house since 2000 when he was working for Diani Promotional Services Ltd. That, in addition to the Kes 1,000,000 transferred to the claimant to renovate the interested party, he also spent Kes 2,257,217 for renovation of the interested party.
22. He averred that, as his contribution to the well-being of the family, he leased and paid a rental house for the claimant for five years in Australia and paid for power, water, gas, and living expenses. He also paid school fees for the children, amounting to Kes 18,900,000, and also bought a car which the claimant used for 8 years.
23. He further averred that he had been a loving husband to the claimant before she migrated to Australia and a loving father who took care of his family by being there for them, cooking for them, taking them on holiday, and giving them tender care, which he will always do all his lifetime.
24. The claimant filed a further affidavit sworn on 22nd April 2023 in response to the respondent’s replying affidavit, and a further affidavit sworn on 30th November 2023, in response to the respondent’s further affidavit, in which he reiterated her position in the originating summons and the supporting affidavit.
25. She stated that to date she has not received her share of the sale of the Hot Gossip business, as the respondent retained the proceeds, as well as rental income from Galu Beach Villa One Ltd and Galu Beach Villa Two Ltd since 2018.
26. She denied the allegation that the respondent leased a house for her in Melbourne and stated that the lease agreement listed both as tenants and that expenses were shared equally between them. Magdalene deposed that the car referred to by the respondent was not bought for her, as it was purchased by the respondent in his name but used by both parties to run family errands until December 2021, when their relationship broke down. The respondent repossessed the said car and sold it on 1st May 2022, and kept the funds.
27. The originating summons was canvassed by way of viva voce evidence. I will give a précis of the evidence below.
28. The claimant, the sole witness for the claimant, adopted the contents of the originating summons, the supporting affidavit, as well as the two further affidavits as her evidence in chief. She reiterated her position and stated that she visits Diani once a year. It was her evidence that in December 2022, the respondent tried to evict her from the suit property as he didn’t want her to spend the night there, as he wanted his friend to come for a sleepover, forcing them to move to a different property. She testified that she reported the matter to the authorities.
29. It was her evidence that the bank statements produced by the respondent belong to other properties and that they paid Kes 2,500,000 to Kes 3,000,000 to Soaring Holdings Ltd and Kes 1,000,000 for other expenses.
30. She urged the court to find that she has 50% interest in the family home due to her contribution and also sought 50% share in the interested party. Magdalene also sought to prevent her eviction from the suit property and prayed that the parties be given the option of buying each other out if possible.
31. When cross-examined by Mr. Njoroge Mwangi, she stated that the suit property was registered in the name of the interested party. She contended that the fact that she had proposed that the house be sold and the proceeds divided equally among the parties did not mean that she had no sentimental attachment to the property; however, she is of the opinion that the property should not be sold.
32. Magdalene testified that she was able to fund her lifestyle, pay school fees, buy a plot and a car from her income, and that both of them contributed to the travel costs.
33. Upon being cross-examined by Ms. Aroka, she testified that they were both directors and shareholders of the interested party and that not all decisions were made through meetings. She stated that there had only been two formal meetings: the 1st one, when they were opening an account, and the second one, when they were appointed as directors of the interested party. She conceded that the memorandum and articles of association are binding on the interested party, the directors, and shareholders.
34. It was her evidence that the respondent purchased the property on behalf of the family, as it was their family home, and she is the one who has always paid the management fees. Magdalene stated that the interested party is not a commercial business but a family home registered in a company’s name.
35. When re-examined, she reiterated her position in her affidavits and evidence and stated that they didn’t have board resolutions to determine who would occupy which room.
36. She stated that Robert Jagero was an accountant for Soaring Holdings Ltd and that he provided documentation showing expenses to her and the respondent.
37. Hugh William Murray Rule was the sole witness for the respondent. Mr. Rule reiterated the contents of his depositions. He stated that in 2011, he wasn’t a Kenyan citizen. There was a restriction on foreign ownership. It was his evidence that after the acquisition of the suit property, he carried out renovation and remodelling at a cost of Kes 2,500,000, which sum of money was from what he had inherited. He urged the court to dismiss the summons.
38. During cross-examination by Ms. Aroka and Ms. Mwasame, he reiterated his position and stated that the company has a memorandum and articles of association, which are binding, and that they had board meetings in which minutes were kept. After the purchase of the company, they had a handover meeting with the former directors, and with the claimant present, and they both signed the minutes. Both parties are signatories to the bank account of the interested party.
39. It was his evidence that he, together with the claimant and the children, lived in the suit property. The suit property was their home until the claimant left for Australia with one child in 2012.
40. He stated that the suit property was dealt with as company property and that they used to file nil returns as the company was not run as a business. The further stated that the decisions of the company were made by resolution, and that there was no requirement for VAT returns.
41. It was his evidence that whenever he visited Melbourne, he would stay with the claimant, as the house therein was rented for her and the young child. That he paid the claimant's school fees and also took care of the family expenses.
42. In re-examination, he upheld his previous position and urged the court to dismiss the summons.
43. The respondent also testified on behalf of the interested party and reiterated his evidence above. Since his evidence in support of the interested party’s case was similar to that he gave on his own account as the respondent, I will not rehash it here.
44. Upon the conclusion of the hearing, parties were directed to file written submissions.
45. The claimant, through her advocates Mwasame Koya & Company Advocates, filed written submissions dated 18th March 2025. Counsel for the claimant identified 9 issues that she submitted on. These are: whether the suit property ,the Garden Cottage, whose title is held by the interested party, is indeed matrimonial property and subject to the jurisdiction of the Family Court; whether the claimant has a claim to the suit property, based on the contribution she made to the said property’s acquisition, and development; whether the respondent’s financial claims regarding his contribution to the acquisition of the garden cottage home held in the name of the interested party are substantiated; whether inconsistencies in the respondent’s testimony affect the credibility of his claim of sole ownership of the interested party and the Garden Cottage; whether the respondent’s financial concealment or misrepresentation to inflate his contribution to the acquisition and improvement of the Garden Cottage suit property; whether the claimant has an equal beneficial interest in interested party acquired jointly in the names of both parties; whether the respondent holds 49% shareholding of the interested party in trust for the claimant; whether the claimant is entitled to injunctive relief with respect to the suit property; and who should pay for costs of the suit.
46. Counsel relied on sections 2 and 6 of the Matrimonial Property Act and submitted that the parties got married in 2001 and therefore the claimant has a proprietary interest in Garden Cottage as it was a matrimonial property. Ms. Mwasame, learned counsel for the claimant, submitted that Magdalene had an interest in the matrimonial property as she made both monetary and non-monetary contributions. She urged that Garden Cottage was acquired and developed between 2001 and 2023, during the subsistence of the marriage.
47. She further submitted that the suit property was jointly acquired by the claimant and the respondent and that it was registered in the name of the interested party, which is company is a family company. The claimant and the respondent are shareholders and directors of the interested party. The claimant and the respondent purchased the suit property in 2011, having previously resided there since 2001, when it served as the manager’s house. At that time, the respondent was employed as the manager at Galu Sea Lodge, while the claimant assisted with administration, marketing, and guest relations in support of her then-husband’s managerial role.
48. Ms Mwasame urged that the acquisition involved the claimant and the respondent as joint purchasers, purchasing shares in the interested party, which holds the leasehold title to the Garden Cottage matrimonial home. It also involved the assignment of a loan from the vendor of the shares to the respondent and the claimant. The acquisition was for Kes 10,000,000 paid by the respondent, who was entrusted by the claimant with transferring family money to the vendor.
49. Counsel further submitted that the respondent conceded to the claimant’s contribution towards the acquisition, development, and maintenance of the suit property. It was urged that the interested party does not operate as a business entity and that it is a dormant company existing solely to hold the claimant and the respondent’s matrimonial home. The property generates no income and is not for rental, as he lives there with his children, and after marrying the claimant, it became her home too.
50. It was urged that the respondent conceded that he was neither an employee nor a designated manager of the interested party. In his divorce petition, he termed the suit property as a matrimonial home. The parties purchased the suit property during their marriage, and at the time of their divorce, they were still the sole residents of the premises, along with their children. Therefore, the suit property is a matrimonial home owned through the family company, the interested party.
51. On the second issue, counsel submitted that a spouse’s interest is determined based on their contribution to the matrimonial property. Counsel relied on section 2 of the act and submitted that the claimant made both monetary and non-monetary contributions towards the acquisition, maintenance, and development of the suit property. It was submitted that the claimant spent Kes 319,520 on renovations and Kes 400,000 on furnishings, bringing the total to Kes 719,520. Counsel submitted that the respondent conceded that the claimant held independent financial resources, distinct from him, enabling her to manage both family obligations and personal expenditures.
52. Further, the claimant juggled several jobs, including working in the family business, to support the family’s living expenses. She was employed by the family business Hot Gossip, which began as Well Connected Net, which became Invisible Net Ltd, earning Kes 20,000 gross salary. She functioned as a co-director on an equal basis with the respondent. The income earned by both parties was deposited in a joint account.
53. Between 2002 and 2005, the claimant managed a tour business, Wild Safaris in Kwale, and between 2009 and 2011 she worked as a property manager for Belro Investments Ltd, earning Kes 50,000.
54. Counsel submitted that the funds to purchase the suit property were drawn from the joint account of both the claimant and the respondent.
55. Further, the claimant provided means of transport for the family, which included three vans gifted to her by Wildside Safaris and Neil and Tracy Moore, who relocated to the United Kingdom from Kenya in 2003. She also purchased a Subaru Legacy Station Wagon in 2011, which served as a family car.
56. Ms. Mwasame urged further that Magdalene also contributed financially towards the repairs and maintenance of the home, including interior design, gardening, renovation works, and landscaping. She also paid for electricity and gas bills, insurance, and miscellaneous costs. Further, she has solely been responsible for the domestic work and management of the home, including supervising work on the home, and also the primary caretaker of their children since birth, and their custodian since 2012 when she moved with them to Australia. She had also been primarily responsible for financially supporting the children, both in Kenya and Australia. She also provided companionship and consortium to the respondent in marriage since 2001 up to the time the marriage ended.
57. On the third issue, counsel submitted that the respondent had not provided sufficient evidence of his personal financial input towards the acquisition and development of the Garden Cottage to warrant his claim of 100% ownership of the interested party and the suit property.
58. On the fourth issue, counsel submitted that the respondent attempted to build a false narrative that the suit property is Monkey Beach House and that the purchase price was Kes 14,000,000, which was rebutted during trial.
59. Regarding the fifth issue, counsel submitted that the respondent’s testimony during cross-examination contained significant inconsistencies that undermined his credibility and provided support to the claimant’s claim for 50% share in the suit property. He also failed to prove that the claimant was merely transferring funds from Galu Beach House One Limited on his behalf via PayPal, and that inheritance funds were available to purchase the suit property. It was submitted that the respondent’s inconsistent testimony and deliberate misrepresentation of company records further highlight the lack of credibility and the need for the court to look beyond the corporate structures in determining the party’s rightful interests in the properties.
60. On the sixth issue, counsel submitted that the claimant is entitled to an equal share of the matrimonial property acquired during the subsistence of the marriage. Counsel relied on section 14 (b) of the Act and submitted that the suit property was jointly acquired by the parties in their names, as evidenced by the fact that they both signed the transaction documents used in the acquisition of the interested party, whose shares they both hold. Further, there was a presumption that the parties had equal beneficial interests in the suit property and the interested party. The claimant had established that the suit property is the matrimonial home.
61. On the 7th issue, counsel relied on Section 14(b) of the Act and submitted that the respondent has not rebutted the claimant’s claim for 50% entitlement in the shareholding of the interested party and in the value of the Garden Cottage matrimonial home.
62. On the 8th issue, counsel submitted that the claimant and their children have known that the suit property was their home and that it was the parties' expressed intention to leave the home to their children until the respondent decided to evict and disenfranchise the claimant’s rights. That being so, it was in the interest of justice that injunctive orders were issued restraining the respondent from evicting them or denying the claimant access to the suit property. That the respondent should be restrained from selling, disposing of the suit property, or shares of the family company.
63. On the question of costs, it was submitted that the respondent should pay costs to the claimant, as it is his misconduct that necessitated the filing of this suit.
64. In conclusion, Ms. Mwasame urged the court to allow the Originating Summons as prayed.
65. The respondent, through his advocates Njoroge Mwangi & Company Advocates, filed written submissions dated 29th April 2025. Counsel reiterated the respondent’s position. Mr. Njoroge Mwangi relied on Sections 2 and 6 of the Act and submitted that the suit property is not a matrimonial property as it is registered in the name of the interested party, with the respondent holding 99 shares and claimant 1, in trust for him. The interested party has not been utilized jointly by the parties for over a decade since the applicant moved to Australia in 2012, and thus the claimant cannot claim the same as being the matrimonial property/home. That by the time the respondent bought the interested party, the claimant was already an Australian citizen and as such a foreigner.
66. Counsel relied on Article 40 of the Constitution of Kenya, 2010, and section 7 of the Act and submitted that matrimonial property vests in any spouse according to their contribution. Further, the acquisition of the suit property was 100% done by the respondent, as the claimant did not contribute to the payment. The claimant did not show any non-monetary contribution, except for the spousal relationship and child care, which may not require money. That the claimant has not adduced any proof of earnings of any significant amount able to fund any substantial developments of the family or the interested party.
67. Mr. Njoroge Mwangi submitted that the claimant was working and therefore not a housewife, nor an enabler of the respondent. The respondent gave as much as he got from the claimant in terms of companionship and provided much more in terms of domestic work and management of the matrimonial home, whereby he paid all the management fees, child care, and school fees, as well as other children's expenses, which amounts to a non-monetary contribution.
68. On the injunction, counsel submitted that the claimant has not established the three principles of issuing an injunctive order and urged the court to dismiss the same.
69. The interested party, on the other hand, through its advocates, Aroka & Company Advocates, filed written submissions dated 5th May,2025. Ms Aroka, learned counsel for the interested party submitted on five issues for determination namely; which court has the primary role and jurisdiction to hear and determine disputes between directors regarding their shareholding and/or assets or accounts held in the name of a company; whether exceptional circumstances exist to warrant the suit property that is registered in a company’s name to be classified as matrimonial property; whether the claimant had proved contribution to the purchase/acquisition and/or development of the suit property; whether the claimant is entitled to the orders sought and who shall bear the costs of the suit.
70. Counsel relied on Section 107,109 and 119 of the Evidence Act and submitted that the claimant failed to discharge the legal burden of proof in support of her suit and therefore it ought to be dismissed with costs.
71. On the 1st issue, counsel submitted that the interested party, a private company limited by shares, is a separate legal entity and therefore the relationship between the claimant and the respondent is that of co-directors and shareholders, not as former spouses. Therefore, the parties herein are bound by the provisions of company law with no exception. That a property belonging to a company can only be distributed under the Companies Act and not the Matrimonial Properties Act, and therefore, the court with jurisdiction to hear this matter is the commercial division of the High Court of Kenya.
72. On the 2nd issue, counsel relied on sections 6 and 14 of the Matrimonial Property Act. She submitted that the claim that the respondent was holding shares in the interested party in trust for the claimant does not hold. Thus, the suit property is not a matrimonial property.
73. Counsel submitted that there was no resolution by the board of directors of the interested party to warrant the property that was acquired through the company to be a matrimonial property.
74. On the third issue, counsel submitted that any claim in matrimonial property is pegged on one’s contribution and tha
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2. The claimant filed the originating summons dated 6th February 2023. Vide the said summons, she averred that the respondent had, on several occasions, attempted to evict her from a property described as Garden Cottage. Garden Cottage is a house erected on Title No. Kwale/Galu Kinondo/646, which is situated along Beach Road, Galu Beach, Diani, Kwale County. The said property is registered in the name of Monkey Beach Ltd, a limited liability company. The claimant contends that Monkey Beach Ltd is a family-owned company jointly owned by her and the respondent. On the other hand, the respondent avers that Garden Cottage is his property and that the claimant has no right to live in it.
3. The claimant averred that she has 1 share in Monkey Beach Ltd and that the respondent owns 49 shares in the interested party in trust for her, which makes her total proprietary interest in the interested party to be 50%, which is equal to that held by the respondent.
4. She further asserted that she made a significant contribution to the acquisition, development, and maintenance of the property. Magdalene stated that she supported the respondent in his managerial role at Galu Sea Lodge, where she was responsible for administration, marketing, and guest relations, without pay. She further stated that she and the respondent paid for family expenses from their jointly owned internet businesses. Most of the funds earned were deposited into their joint Barclays Bank account, which was closed in 2015.
5. She further stated that from 2009 to 2011, she worked at Belro Investments Ltd as a property manager, managing tourist properties in Diani Beach, and used the income earned to cover family expenses.
6. Magdalene averred that the suit property was purchased in the year 2011 for Kes 10,000,000 as a family home by way of a purchase of the entire share capital of Monkey Beach Limited, which holds the title to the suit property and loan assignment via deed of assignment dated 12 August 2011. She contended that she spent Kes 319,520 on renovations and Kes 400,000 on furnishing the house.
7. She averred that after they celebrated their marriage, they lived on the suit property, and that is where all their children were born. With the respondent’s agreement, she left for further studies in Melbourne, Australia, in 2012 and completed them in 2017. Her application was supported by the respondent, who wrote a letter dated 22nd January 2012 to the Australian embassy, in which he declared that Magdalene was a co-owner of the matrimonial home and acknowledged her contribution to the family’s wealth.
8. She deponed that since the purchase of the suit property, she had consistently paid for the maintenance and management of the house, and has been the one paying the house help to clean the home to a high standard, even in her absence.
9. In response, the interested party filed a replying affidavit sworn by the respondent on 28th October 2023. He denied the claim by the claimant and stated that the interested party is a private company limited by shares that has perpetual succession. The company, in its corporate name, has the power to sue and be sued, to hold property in its own name, and further has a memorandum of articles of association that clearly defines the workings of the company and the relationship between directors and shareholders, amongst others.
10. He stated that the interested party is the registered owner of all that piece of property known as Garden Cottage, Title No Kwale/Galu Kinondo/646, Beach Road, Galu Beach Diani.
11. Mr. Rule stated that he is the founding director of the interested party and that he was in charge of its day-to-day management. He further stated that he and the claimant are co-directors and shareholders of the interested party and were also spouses from 16th December 2001 until 24th March 2023, when the marriage was dissolved. He agreed with the claimant that their marriage was blessed with three issues.
12. He averred that their respective shares and interests in the property registered in the name of the interested party are distinct and not linked to matrimonial property. In his view, the suit property was worth Kes 37,000,000. He denied that he holds any shares in the interested party in trust for the claimant as alleged.
13. Mr. Rule contended that he had been living in the suit property continuously and uninterrupted for the last 23 years, from as early as 2000, before he met the claimant. In 2011, he purchased shares in the interested party. Since the suit property had appreciated, and he could not afford it on his own, he approached two investors, Alec Van Wijk and Guido Pallada, Belgian and Dutch nationals, respectively to pool resources together, and on 13th August 2010, they formed a development company called Soaring Holdings Limited, where each of the 3 shareholders contributed capital for purchase and development of the property with the title duly transferred to said company. They agreed that he could purchase the property to be owned by the interested party from Soaring Holdings Limited at a consideration of Kes 14,000,000.
14. He averred that on 9th September 2011, he purchased 99 ordinary shares from Alec Roger Agnes Van Wijk at the consideration of Kes 1,368,180 for the benefit of the interested party and 1 ordinary share from Benjamin Nyanya Mutua at a consideration of Kes 100 in the claimant’s name for the benefit of the interested party. Mr. Rule contended that the claimant did not contribute any funds for the purchase of the shares, as the same were granted to her by the respondent, thus she holds the same in trust. Further, the claimant did not contribute to the share capital and was only brought on board as a director and shareholder of the interested party due to legal provisions/requirements.
15. He stated that any money towards business expenses was borne by him, and most money in their joint account emanated from his personal bank accounts in Australia, including from his Australian family trust funds. He contended that the Barclays bank account also benefited from funds from his other sources. He stated that the only contribution the claimant has ever made in the form of improvement is about Kes 500,000, which he would be willing to buy the same from her and offset the same against her shares.
16. He stated that the claimant, being a co-director, collects hefty rent of up to Kes 11,000,000 per annum from business ventures of providing short-term guest rentals via Airbnb, TripAdvisor, and other similar apps.
17. He denied that he had attempted to evict the claimant and stated that he has no intention of evicting or interfering with her access to the property. Mr. Rule stated that the claimant lives in Australia, where her primary residence is, and is at liberty to stay in the suit property or that of the sister company. He further contended that he has no intention of selling, leasing, mortgaging, transferring, or otherwise disposing of the suit property and/or selling, leasing, charging, transferring, and/or disposing of his shares in the interested party. Mr. Rule further stated that he has no intention of demolishing, removing, bringing down, wasting, damaging, or destroying the suit property, and on the contrary, only seeks to improve it as it has been his home for the last 23 years.
18. He stated that this court’s jurisdiction is limited to the respective rights of husband and wife to shares in a company, to ascertain their respective beneficial rights, and declaring the number of shares held in trust, but not to distribute properties registered in the name of a company in which both spouses are shareholders, or to order the transfer of the legal titles to property or to pass proprietary interest from one spouse to the other.
19. In conclusion, he urged the court to dismiss the summons with costs.
20. The respondent filed an affidavit and stated that Net Limited and Ethernet Limited were all struggling financially. He averred that he had to keep on loaning the said businesses money. Mr. Rule contended that the claimant held her single share in the interested party in trust for him as her husband and was, in fact, drawing a salary of Kes 18,377 out of which she bought a car worth Kes 600,000 in cash. He denied that there were any savings from the two companies, either by himself or the claimant.
21. He averred that the money he used acquired the interested party and other companies, Galu Beach House One Ltd, Galu Beach Villa One Ltd, and Galu Beach Villa Two Limited, where the claimant holds shares in trust for him were purchased with funds from his inheritance from Australia. That he transferred USD 170,098.03, equivalent to Kes 14,235.406.25, to Kenya to purchase the property, which initially was his rented house since 2000 when he was working for Diani Promotional Services Ltd. That, in addition to the Kes 1,000,000 transferred to the claimant to renovate the interested party, he also spent Kes 2,257,217 for renovation of the interested party.
22. He averred that, as his contribution to the well-being of the family, he leased and paid a rental house for the claimant for five years in Australia and paid for power, water, gas, and living expenses. He also paid school fees for the children, amounting to Kes 18,900,000, and also bought a car which the claimant used for 8 years.
23. He further averred that he had been a loving husband to the claimant before she migrated to Australia and a loving father who took care of his family by being there for them, cooking for them, taking them on holiday, and giving them tender care, which he will always do all his lifetime.
24. The claimant filed a further affidavit sworn on 22nd April 2023 in response to the respondent’s replying affidavit, and a further affidavit sworn on 30th November 2023, in response to the respondent’s further affidavit, in which he reiterated her position in the originating summons and the supporting affidavit.
25. She stated that to date she has not received her share of the sale of the Hot Gossip business, as the respondent retained the proceeds, as well as rental income from Galu Beach Villa One Ltd and Galu Beach Villa Two Ltd since 2018.
26. She denied the allegation that the respondent leased a house for her in Melbourne and stated that the lease agreement listed both as tenants and that expenses were shared equally between them. Magdalene deposed that the car referred to by the respondent was not bought for her, as it was purchased by the respondent in his name but used by both parties to run family errands until December 2021, when their relationship broke down. The respondent repossessed the said car and sold it on 1st May 2022, and kept the funds.
27. The originating summons was canvassed by way of viva voce evidence. I will give a précis of the evidence below.
28. The claimant, the sole witness for the claimant, adopted the contents of the originating summons, the supporting affidavit, as well as the two further affidavits as her evidence in chief. She reiterated her position and stated that she visits Diani once a year. It was her evidence that in December 2022, the respondent tried to evict her from the suit property as he didn’t want her to spend the night there, as he wanted his friend to come for a sleepover, forcing them to move to a different property. She testified that she reported the matter to the authorities.
29. It was her evidence that the bank statements produced by the respondent belong to other properties and that they paid Kes 2,500,000 to Kes 3,000,000 to Soaring Holdings Ltd and Kes 1,000,000 for other expenses.
30. She urged the court to find that she has 50% interest in the family home due to her contribution and also sought 50% share in the interested party. Magdalene also sought to prevent her eviction from the suit property and prayed that the parties be given the option of buying each other out if possible.
31. When cross-examined by Mr. Njoroge Mwangi, she stated that the suit property was registered in the name of the interested party. She contended that the fact that she had proposed that the house be sold and the proceeds divided equally among the parties did not mean that she had no sentimental attachment to the property; however, she is of the opinion that the property should not be sold.
32. Magdalene testified that she was able to fund her lifestyle, pay school fees, buy a plot and a car from her income, and that both of them contributed to the travel costs.
33. Upon being cross-examined by Ms. Aroka, she testified that they were both directors and shareholders of the interested party and that not all decisions were made through meetings. She stated that there had only been two formal meetings: the 1st one, when they were opening an account, and the second one, when they were appointed as directors of the interested party. She conceded that the memorandum and articles of association are binding on the interested party, the directors, and shareholders.
34. It was her evidence that the respondent purchased the property on behalf of the family, as it was their family home, and she is the one who has always paid the management fees. Magdalene stated that the interested party is not a commercial business but a family home registered in a company’s name.
35. When re-examined, she reiterated her position in her affidavits and evidence and stated that they didn’t have board resolutions to determine who would occupy which room.
36. She stated that Robert Jagero was an accountant for Soaring Holdings Ltd and that he provided documentation showing expenses to her and the respondent.
37. Hugh William Murray Rule was the sole witness for the respondent. Mr. Rule reiterated the contents of his depositions. He stated that in 2011, he wasn’t a Kenyan citizen. There was a restriction on foreign ownership. It was his evidence that after the acquisition of the suit property, he carried out renovation and remodelling at a cost of Kes 2,500,000, which sum of money was from what he had inherited. He urged the court to dismiss the summons.
38. During cross-examination by Ms. Aroka and Ms. Mwasame, he reiterated his position and stated that the company has a memorandum and articles of association, which are binding, and that they had board meetings in which minutes were kept. After the purchase of the company, they had a handover meeting with the former directors, and with the claimant present, and they both signed the minutes. Both parties are signatories to the bank account of the interested party.
39. It was his evidence that he, together with the claimant and the children, lived in the suit property. The suit property was their home until the claimant left for Australia with one child in 2012.
40. He stated that the suit property was dealt with as company property and that they used to file nil returns as the company was not run as a business. The further stated that the decisions of the company were made by resolution, and that there was no requirement for VAT returns.
41. It was his evidence that whenever he visited Melbourne, he would stay with the claimant, as the house therein was rented for her and the young child. That he paid the claimant's school fees and also took care of the family expenses.
42. In re-examination, he upheld his previous position and urged the court to dismiss the summons.
43. The respondent also testified on behalf of the interested party and reiterated his evidence above. Since his evidence in support of the interested party’s case was similar to that he gave on his own account as the respondent, I will not rehash it here.
44. Upon the conclusion of the hearing, parties were directed to file written submissions.
45. The claimant, through her advocates Mwasame Koya & Company Advocates, filed written submissions dated 18th March 2025. Counsel for the claimant identified 9 issues that she submitted on. These are: whether the suit property ,the Garden Cottage, whose title is held by the interested party, is indeed matrimonial property and subject to the jurisdiction of the Family Court; whether the claimant has a claim to the suit property, based on the contribution she made to the said property’s acquisition, and development; whether the respondent’s financial claims regarding his contribution to the acquisition of the garden cottage home held in the name of the interested party are substantiated; whether inconsistencies in the respondent’s testimony affect the credibility of his claim of sole ownership of the interested party and the Garden Cottage; whether the respondent’s financial concealment or misrepresentation to inflate his contribution to the acquisition and improvement of the Garden Cottage suit property; whether the claimant has an equal beneficial interest in interested party acquired jointly in the names of both parties; whether the respondent holds 49% shareholding of the interested party in trust for the claimant; whether the claimant is entitled to injunctive relief with respect to the suit property; and who should pay for costs of the suit.
46. Counsel relied on sections 2 and 6 of the Matrimonial Property Act and submitted that the parties got married in 2001 and therefore the claimant has a proprietary interest in Garden Cottage as it was a matrimonial property. Ms. Mwasame, learned counsel for the claimant, submitted that Magdalene had an interest in the matrimonial property as she made both monetary and non-monetary contributions. She urged that Garden Cottage was acquired and developed between 2001 and 2023, during the subsistence of the marriage.
47. She further submitted that the suit property was jointly acquired by the claimant and the respondent and that it was registered in the name of the interested party, which is company is a family company. The claimant and the respondent are shareholders and directors of the interested party. The claimant and the respondent purchased the suit property in 2011, having previously resided there since 2001, when it served as the manager’s house. At that time, the respondent was employed as the manager at Galu Sea Lodge, while the claimant assisted with administration, marketing, and guest relations in support of her then-husband’s managerial role.
48. Ms Mwasame urged that the acquisition involved the claimant and the respondent as joint purchasers, purchasing shares in the interested party, which holds the leasehold title to the Garden Cottage matrimonial home. It also involved the assignment of a loan from the vendor of the shares to the respondent and the claimant. The acquisition was for Kes 10,000,000 paid by the respondent, who was entrusted by the claimant with transferring family money to the vendor.
49. Counsel further submitted that the respondent conceded to the claimant’s contribution towards the acquisition, development, and maintenance of the suit property. It was urged that the interested party does not operate as a business entity and that it is a dormant company existing solely to hold the claimant and the respondent’s matrimonial home. The property generates no income and is not for rental, as he lives there with his children, and after marrying the claimant, it became her home too.
50. It was urged that the respondent conceded that he was neither an employee nor a designated manager of the interested party. In his divorce petition, he termed the suit property as a matrimonial home. The parties purchased the suit property during their marriage, and at the time of their divorce, they were still the sole residents of the premises, along with their children. Therefore, the suit property is a matrimonial home owned through the family company, the interested party.
51. On the second issue, counsel submitted that a spouse’s interest is determined based on their contribution to the matrimonial property. Counsel relied on section 2 of the act and submitted that the claimant made both monetary and non-monetary contributions towards the acquisition, maintenance, and development of the suit property. It was submitted that the claimant spent Kes 319,520 on renovations and Kes 400,000 on furnishings, bringing the total to Kes 719,520. Counsel submitted that the respondent conceded that the claimant held independent financial resources, distinct from him, enabling her to manage both family obligations and personal expenditures.
52. Further, the claimant juggled several jobs, including working in the family business, to support the family’s living expenses. She was employed by the family business Hot Gossip, which began as Well Connected Net, which became Invisible Net Ltd, earning Kes 20,000 gross salary. She functioned as a co-director on an equal basis with the respondent. The income earned by both parties was deposited in a joint account.
53. Between 2002 and 2005, the claimant managed a tour business, Wild Safaris in Kwale, and between 2009 and 2011 she worked as a property manager for Belro Investments Ltd, earning Kes 50,000.
54. Counsel submitted that the funds to purchase the suit property were drawn from the joint account of both the claimant and the respondent.
55. Further, the claimant provided means of transport for the family, which included three vans gifted to her by Wildside Safaris and Neil and Tracy Moore, who relocated to the United Kingdom from Kenya in 2003. She also purchased a Subaru Legacy Station Wagon in 2011, which served as a family car.
56. Ms. Mwasame urged further that Magdalene also contributed financially towards the repairs and maintenance of the home, including interior design, gardening, renovation works, and landscaping. She also paid for electricity and gas bills, insurance, and miscellaneous costs. Further, she has solely been responsible for the domestic work and management of the home, including supervising work on the home, and also the primary caretaker of their children since birth, and their custodian since 2012 when she moved with them to Australia. She had also been primarily responsible for financially supporting the children, both in Kenya and Australia. She also provided companionship and consortium to the respondent in marriage since 2001 up to the time the marriage ended.
57. On the third issue, counsel submitted that the respondent had not provided sufficient evidence of his personal financial input towards the acquisition and development of the Garden Cottage to warrant his claim of 100% ownership of the interested party and the suit property.
58. On the fourth issue, counsel submitted that the respondent attempted to build a false narrative that the suit property is Monkey Beach House and that the purchase price was Kes 14,000,000, which was rebutted during trial.
59. Regarding the fifth issue, counsel submitted that the respondent’s testimony during cross-examination contained significant inconsistencies that undermined his credibility and provided support to the claimant’s claim for 50% share in the suit property. He also failed to prove that the claimant was merely transferring funds from Galu Beach House One Limited on his behalf via PayPal, and that inheritance funds were available to purchase the suit property. It was submitted that the respondent’s inconsistent testimony and deliberate misrepresentation of company records further highlight the lack of credibility and the need for the court to look beyond the corporate structures in determining the party’s rightful interests in the properties.
60. On the sixth issue, counsel submitted that the claimant is entitled to an equal share of the matrimonial property acquired during the subsistence of the marriage. Counsel relied on section 14 (b) of the Act and submitted that the suit property was jointly acquired by the parties in their names, as evidenced by the fact that they both signed the transaction documents used in the acquisition of the interested party, whose shares they both hold. Further, there was a presumption that the parties had equal beneficial interests in the suit property and the interested party. The claimant had established that the suit property is the matrimonial home.
61. On the 7th issue, counsel relied on Section 14(b) of the Act and submitted that the respondent has not rebutted the claimant’s claim for 50% entitlement in the shareholding of the interested party and in the value of the Garden Cottage matrimonial home.
62. On the 8th issue, counsel submitted that the claimant and their children have known that the suit property was their home and that it was the parties' expressed intention to leave the home to their children until the respondent decided to evict and disenfranchise the claimant’s rights. That being so, it was in the interest of justice that injunctive orders were issued restraining the respondent from evicting them or denying the claimant access to the suit property. That the respondent should be restrained from selling, disposing of the suit property, or shares of the family company.
63. On the question of costs, it was submitted that the respondent should pay costs to the claimant, as it is his misconduct that necessitated the filing of this suit.
64. In conclusion, Ms. Mwasame urged the court to allow the Originating Summons as prayed.
65. The respondent, through his advocates Njoroge Mwangi & Company Advocates, filed written submissions dated 29th April 2025. Counsel reiterated the respondent’s position. Mr. Njoroge Mwangi relied on Sections 2 and 6 of the Act and submitted that the suit property is not a matrimonial property as it is registered in the name of the interested party, with the respondent holding 99 shares and claimant 1, in trust for him. The interested party has not been utilized jointly by the parties for over a decade since the applicant moved to Australia in 2012, and thus the claimant cannot claim the same as being the matrimonial property/home. That by the time the respondent bought the interested party, the claimant was already an Australian citizen and as such a foreigner.
66. Counsel relied on Article 40 of the Constitution of Kenya, 2010, and section 7 of the Act and submitted that matrimonial property vests in any spouse according to their contribution. Further, the acquisition of the suit property was 100% done by the respondent, as the claimant did not contribute to the payment. The claimant did not show any non-monetary contribution, except for the spousal relationship and child care, which may not require money. That the claimant has not adduced any proof of earnings of any significant amount able to fund any substantial developments of the family or the interested party.
67. Mr. Njoroge Mwangi submitted that the claimant was working and therefore not a housewife, nor an enabler of the respondent. The respondent gave as much as he got from the claimant in terms of companionship and provided much more in terms of domestic work and management of the matrimonial home, whereby he paid all the management fees, child care, and school fees, as well as other children's expenses, which amounts to a non-monetary contribution.
68. On the injunction, counsel submitted that the claimant has not established the three principles of issuing an injunctive order and urged the court to dismiss the same.
69. The interested party, on the other hand, through its advocates, Aroka & Company Advocates, filed written submissions dated 5th May,2025. Ms Aroka, learned counsel for the interested party submitted on five issues for determination namely; which court has the primary role and jurisdiction to hear and determine disputes between directors regarding their shareholding and/or assets or accounts held in the name of a company; whether exceptional circumstances exist to warrant the suit property that is registered in a company’s name to be classified as matrimonial property; whether the claimant had proved contribution to the purchase/acquisition and/or development of the suit property; whether the claimant is entitled to the orders sought and who shall bear the costs of the suit.
70. Counsel relied on Section 107,109 and 119 of the Evidence Act and submitted that the claimant failed to discharge the legal burden of proof in support of her suit and therefore it ought to be dismissed with costs.
71. On the 1st issue, counsel submitted that the interested party, a private company limited by shares, is a separate legal entity and therefore the relationship between the claimant and the respondent is that of co-directors and shareholders, not as former spouses. Therefore, the parties herein are bound by the provisions of company law with no exception. That a property belonging to a company can only be distributed under the Companies Act and not the Matrimonial Properties Act, and therefore, the court with jurisdiction to hear this matter is the commercial division of the High Court of Kenya.
72. On the 2nd issue, counsel relied on sections 6 and 14 of the Matrimonial Property Act. She submitted that the claim that the respondent was holding shares in the interested party in trust for the claimant does not hold. Thus, the suit property is not a matrimonial property.
73. Counsel submitted that there was no resolution by the board of directors of the interested party to warrant the property that was acquired through the company to be a matrimonial property.
74. On the third issue, counsel submitted that any claim in matrimonial property is pegged on one’s contribution and tha
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