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The Originating Summons dated 14 th June 2024 is presented by the Applicant under Articles 45 (3) of the Constitution; Sections 14 and 17 of the Matrimonial Property Act and rule 7 of the Matrimonial Property Rules and seeks the following orders;
THAT a declaration do issue that the 4 bedroom house erected on Plot No. 5 excised from Mavoko Town Block 2/90 along Katani Road, Syokimau together with the fittings therein is not matrimonial property and is owned by the Applicant alone.
THAT a declaration do issue that the house erected on L.R Mavoko Town Block 3/1048 within Mavoko municipality together with the fittings therein and rental income therefrom is matrimonial property and is owned equally by the Applicant and the Respondent.
THAT a declaration do issue that 10 hostels in Bukura town in Kakamega County together with the fittings therein and the rental income therefrom is matrimonial property and is owned equally by the Applicant and the Respondent.
THAT a declaration do issue that the applicant has a beneficial and/or proprietary interest over the houses erected on L.R Mavoko Town Block 3/1048 within Mavoko municipality and 10 hostels in Bukura town of Kakamega County and Nairobi together with the fittings therein.
THAT a declaration do issue that the Applicant has a right to exclusive access and ownership of the 4 bedroom house erected Plot No. 5 excised from Mavoko Town Block 2/90 along Katani Road, Syokimau together with the fittings therein.
THAT a declaration do issue that the Respondent does not have capacity to lease or rent out, allow access to third parties or in any manner alienate the 4 bedroom house erected on Plot No. 5 excised from Mavoko Town Block 2/90 along Katani Road, Syokimau together with the fittings therein without the consent of the Applicant.
THAT a declaration do issue that the Applicant is entitled to an equal share of the rental income generated from the lease erected on L.R Mavoko Town Block 3/1048 within Mavoko municipality and 10 hostels in Bukura town of Kakamega County together with fittings therein.
THAT an order do issue directing the Respondent to file a disclosure and statement of accounts for the rental income generated from the lease of the houses erected on L.R Mavoko Town Block 3/1048 within Mavoko municipality and 10 hostels in Bukura town of Kakamega County together with the fittings therein with effect from January 2023.
THAT the income from the lease of the houses erected on L.R Mavoko Town Block 3/1048 within Mavoko municipality and 10 hostels in Bukura town of Kakamega county together with the fittings therein earned by the Respondent with effect from January 2023 be shared between the Applicant and the Respondent.
THAT the income from the lease of the houses erected on L.R Mavoko Town Block 3/1048 within Mavoko municipality and 10 hostels in Bukura town of Kakamega County together with the fittings therein be paid to a joint account to be shared equally between the Applicant and the Respondent.
THAT this Honourable Court do issue such further or alternative orders that may deem appropriate in the circumstances of the case.
THAT costs of these proceedings be borne by the Respondent.
The Summons was supported by an Affidavit of even date sworn by the Applicant. She filed a Supplementary Affidavit dated 24 th June 2024.
The Respondent opposed the Originating Summons vide a Replying Affidavit sworn on 13 th September 2024.
APPLICANT’S CASE.
The Applicant states that she and the Respondent got married on 28 th November 2015 at the Kenya Assemblies of God. Their marriage was dissolved vide Milimani Divorce Cause No. E357 of 2023 on 30 th March 2024. During the subsistence of their marriage, she took loans and purchased Plot No. 5 excised from Mavoko Town Block 2/90 along Katani Road Syokimau and erected a four-bedroom house together with fittings. Although the sale agreement was executed in their joint names, she avers that the Respondent did not make any financial contribution towards the purchase and construction of the house and therefore, she is entitled to the whole property. She avers that the Respondent is in possession of their matrimonial home which she continues to service the loan solely up to date. When the relationship between the respondent and her became untenable, she was forced to look for alternative accommodation for herself and the children of the marriage.
During the subsistence of the marriage, she took another loan and availed the funds towards the construction of rental units on L.R Mavoko 3/1048 which is registered in the Respondent’s name. She argues that the Respondent enjoys rent from this property to her detriment. She is claiming 50% ownership and possession of the same. She avers that she took a loan and applied funds towards the construction of 10 hostels in Bukura Town in Kakamega on a property that is registered in the Respondent’s name. She stated that the Respondent has been enjoying rental income to her detriment. She seeks 50 % ownership and possession of the said property.
RESPONDENT’S CASE.
The Respondent’s case is that, he and the Applicant agreed to purchase Plot No. 5 within Mavoko Town Block 2/90 jointly. Since the Applicant was fully employed, he asked her to take a loan from her employer and he would assist her to pay it. He made payments by withdrawing money and offsetting the loan through a company known as Last Don Services Limited where he and the Applicant are directors. In 2012, he solely purchased property known as L.R No. Block 3/1048 and put up rental houses. The property is still registered in the name of the seller. The Applicant was unemployed during this time and therefore, she did not contribute financially in the purchase of the property and construction of the rental houses. He constructed ten single rooms each fetching Kshs. 1500. From the collected amount, he pays the caretaker Kshs. 5,000 per month, utilises between Kshs. 2,000- Kshs. 3,000 for routine maintenance and is left with Kshs. 7,000 to maintain himself since he is currently unemployed.
He purchased land in Bukura town in Kakamega county in the year 2006 from a relative before meeting the applicant. He put up rental houses which he is yet to complete because of a succession dispute. He argues that it does not fetch any rental income. He stated that the applicant left the matrimonial home on her own volition. According to him, he contributed more than the applicant toward the purchase and construction of their matrimonial home.
He argues that the applicant does not have a claim on L.R No. Block 3/1048 and the property in Bukura Town. That the orders being sought by the applicant regarding the property in Bukura town are incapable of being issued because the construction is incomplete and does not fetch any income. He stated that Plot No. 5 Mavoko Town Block 2/90 be distributed in the ratio of 70:30 in his favour. He accuses the Applicant of purchasing other properties and failing to disclose the same before this court.
APPLICANT’S FURTHER AFFIDAVIT DATED 24 TH SEPTEMBER 2024.
Although she is a director of Last Don Services Limited, she denied withdrawing any money towards the payment of the loan she took. She denied the allegation that she was unemployed in 2012 and reiterates that she took a loan towards the construction of rentals in L.R Mavoko Town Block 3/1048. The Respondent indicated that the rental income would be used to repay back the loan she took which has never been repaid back. She insists that she took a loan towards the construction of the rentals in Bukura town and the last time she checked, the construction was complete. She denied the allegation that the Respondent made a substantial contribution towards the matrimonial property. She sent the Respondent money for construction materials and payment of the workers while the Respondent supervised the construction. She stated that the Respondent has not proved his contribution towards the purchase and construction of their matrimonial home. She denied the allegation that she has purchased properties which were not brought to the attention of this court.
EVIDENCE .
The Applicant testified as PW1. She told the court that she is claiming a share of the matrimonial property especially the matrimonial home on Mavoko/2/90. Her evidence was that, she is a dormant partner at Last Down Limited with 20% shares. She withdrew money from the account and sent the money to the Respondent. The Respondent did not utilise the money towards the construction project. In 2012, she was working at Setlack Limited. She left in September 2012 and moved to a parastatal. The Respondent has not demonstrated financial contribution towards acquisition of the property. She continues to service the loan and is paying rent where she lives with the children of the marriage. The Respondent re married and lives in their matrimonial home.
During cross- examination , she stated that Mavoko /3/1048 was purchased in December 2012. The Respondent paid a purchase price of Kshs. 400,000. She did not contribute towards the purchase of the land. There are 14 houses on the land, 1 bedroom bungalows and bedsitters. Rent is approximately between Kshs. 2000 to Kshs. 2,500 per month. She took a loan of Kshs. 400,000 from TARDA Sacco to complete the construction of the units. The Respondent was to repay the loan. She did not contribute towards the purchase of the land in Bukura. She doesn’t know if anyone is living in the rental units. She contributed towards the construction of the units on the property. She took a loan of Kshs. 450,000 from TARDA Sacco in 2019. She doesn’t know the total cost of the construction. She doesn’t know if the property in Mavoko and Bukura are registered in the Respondent’s name.
She paid the full purchase price of Kshs. 1.2 million for Mavoko/2/90. She withdrew Kshs. 200,000 on 5 th February 2021 and Kshs. 250,000 on 10 th February 2021 and gave them to the Respondent in cash. Money in the account was paid to the Respondent for construction a swimming pool. She paid the total cost of Kshs. 5 million for construction of their matrimonial home. She is not constructing on a parcel in Kitale which is ancestral land. She took a loan of Kshs. 6 million for the construction of the matrimonial home. There is a case relating to Block 2/90.
In re-examination, she stated that the property in Kitale is registered in her father’s name. She took a loan of Kshs. 5.5 million from Family Bank.
DW1, the Respondent, he purchased the property in Bukura from his maternal aunt in 2006. He begun construction of hotels but the construction stalled because of a succession dispute. He got a job to drill a borehole in 2018 and used the money to commence construction. The property is not generating income. The Applicant did not make any contribution. Mavoko 3/1048 is not registered in his name. He lodged a caveat against the property. There are 14 single rooms. Four of them are not habitable. He collects Kshs. 15,000 per month . he only saves around Kshs. 8,000 after paying the caretaker and other expenses. He was paid Kshs. 3 million in December 2012 for a job he did in DRC and he used part of the money for construction of the matrimonial home and repaid part of the loan taken by the applicant. The loan taken by the applicant was not put to construction of the matrimonial home. The property was purchased jointly. He assisted to repay the loan.
The withdrawals he made from Last Don Limited were for the construction of the house. The applicant did not give him the money she withdrew. His contribution towards the construction of the matrimonial home was Kshs. 3 million while the applicant’s contribution was Kshs. 2 million.
During cross- examination , he stated he spent Kshs. 1 million on the pool construction. Part of the balance was channelled to the construction of the house. He was on the site making payments. He stated that his contribution towards the matrimonial home was both financial and supervision. The applicant did not contribute towards the construction in Mavoko. By the time she took the loan, the units were complete. Part of the withdrawals she made were repayments to herself which amounted to Kshs. 600,000. His contribution to the matrimonial home was identifying the land, negotiating sale and supervising the construction. After purchase, he contributed towards fencing the plot.
In re-examination, he stated that he did not receive all the money withdrawn from the company account. The applicant took a car loan of Kshs. 750,000 and has not disclosed this to the court.
APPLICANT’S SUBMISSSIONS.
Relying on Sections 2 and 14 of the Matrimonial Property Act, it was her submission that Plot No. 5 excised from Mavoko Town Block 2/90 along Katani Road which was acquired during the subsistence of the marriage, the sale agreement appears to be in the names of both parties and so is the certificate of ownership of the plot there is therefore enough evidence that this is matrimonial property. It was her submission that L.R. Mavoko Town Block 3/1048 is also matrimonial property having been acquired during the subsistence of the marriage. She relied on the decision of T.M.V. vs F.M.C [2018] eKLR .
On the contribution of each party, she quoted Section 7 of the Matrimonial Property Act which states that ownership of Matrimonial Property depends on each spouses’ contribution. She relied on the decision of JOO v MBO (2023) KESC 4 (KLR). In this case, she argued that she took loans for the construction of the matrimonial home in Mavoko. She had also shown proof that she took loans from TARDA Sacco to help in the construction of the rental units in Mavoko and Bukura Town. She argued that the Respondent alleged to have made a contribution of Kshs. 3 million towards the construction of their matrimonial home but the same had not been proved. It was her submission that in any case, her contribution was higher than that of the Respondent and she is entitled to the orders sought. She is still paying off the loans borrowed. She urged the court that in the absence of proof of contribution by the Respondent, the matrimonial should be shared in the ratio of 80:20 in her favour while she gets 50 % of the other properties.
RESPONDENT’S SUBMISSIONS.
The Respondent identified the following as issues to be determined by this court;
Do the properties constitute matrimonial property?
If yes, did the Plaintiff contribute to their acquisition and development of the Properties?
Is the Plaintiff entitled to equal share or such higher proportion of the matrimonial property?
On the first issue, the Respondent submits that the only property that meets the definition of matrimonial property as stated in Section 6 of the Matrimonial Property Act is Plot No. 5 excised from Mavoko Town Block 2/90 along Katani Road, Syokimau. He argued that the property in Bukura was purchased in 20006 before he met the applicant. It was his submission that such property is excluded from being referred to as matrimonial property. He relied on the decision of ENK v JNK (2015) eKLR . He argued that L.R Mavoko Town Block 3/1048 is not matrimonial property because the applicant did not make any contribution towards it’s purchase or construction of the rentals.
On the second issue, the Respondent submitted that the applicant had not proved any contribution towards the purchase of the properties in dispute. He also submitted that the applicant The Respondent argued that she had also failed to prove improvement on the matrimonial properties and therefore, she is not entitled to the reliefs sought.
On the third issue, relying on the decision in AWM v JGK [2021] eKLR and PNN v ZWN [2017] eKLR, on contribution and how property should be shared, the Respondent submitted that the applicant is only entitled to 30% of the properties considering the fact that she made no contribution towards their purchase and development.
ANALYSIS AND DETERMINATION.
Having considered the respective pleading of the parties, their evidence, submissions, authorities cited and relevant; I discern the following as the issues for determination;
Which, if any of the suit property constitute matrimonial property.
What is the respective share of each party to the matrimonial property?
Who should pay costs ?
Which, if any of the suit property constitute matrimonial property.
Section 6 of the Matrimonial Property Act defines ‘matrimonial property’ as:
the matrimonial home or homes;
household goods and effects in the matrimonial home or homes; or
any other immovable and movable property jointly owned and acquired during the subsistence of the marriage .
Under Section 2 of the Act, ‘Matrimonial home’ has been defined as:-
any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property .
In the case of T.M.V. vs F.M.C [2018] eKLR, Nyakundi J. opined that:-
…for property to qualify as matrimonial property, it ought to have been during the subsistence of the marriage between the parties acquired unless otherwise agreed between them that such property would not form part of matrimonial property.
In the Ugandan High Court, Mwangusya J. in Paul Kagwa vs. Jackline Muteteri (Matrimonial Cause-2005/23) [2006] UGHC 17 (18 May 2006) while citing Bossa, J in John Tom Kintu Mwanga vs. Myllious Gafafusa Kintu (Divorce Appeal No. 135 of 1997) (unreported) expressed himself as hereunder:-
On the last issue of whether the petitioner is entitled to matrimonial property, I clearly believe that she does and I so hold. Matrimonial property is understood differently by different people. There is always that property which the couple chose to call home. There may be property which may be acquired separately by each spouse before and after marriage. Then there is property which the husband may hold in trust for the clan. Each of these should in my view be considered differently. The property to which each spouse is entitled is that property which the parties choose to call home and which they jointly contribute to.
In this case, both the Applicant and the Respondent agree that the Plot No. 5 excised from Mavoko Town Block 2/90 and LR Mavoko Town Block 2/90 were acquired during the subsistence of the marriage. The sale agreement presented before this court for Mavoko Town Block 3/1048 was drawn on 18 th December 2012. The sale agreement for Plot No. 5 excised from Mavoko Town Block 2/90 was drawn on 11 th July 2020. I therefore hold that LR Number Mavoko Town Block 3/1048 and Plot No. 5 excised from Mavoko Town Block 2/90 were acquired during the subsistence of the marriage for the benefit of the family and are therefore matrimonial property.
Regarding the plot in Bukura town in Kakamega County, the Respondent argues that the property was acquired before he met the applicant. He argued that he bought the property from his aunt. He constructed 10 hostels on the property but the same has stalled because of a succession dispute. The Applicant on the other hand argues that she contributed towards the construction of the hostels. The property was acquired on 21 st June 2006 which was before the parties got married.
From the definition above any property that is acquired by either spouse prior to the marriage shall remain separate property owned by the person who acquired it. The other spouse can only acquire interest if they make contribution to the improvement of the property. That interest will be commensurate with the improvement made. This is provided for by section 9 of the Act which provides:
Where one 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 improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made.
This property therefore is not matrimonial property but the applicant will be entitled to benefit if she can prove her contribution to the developments on the property.
What is the respective share of each party to the matrimonial property?
The law governing division of matrimonial property is contained in Constitution of Kenya, 2010 and the Matrimonial Property Act. Article 45(3) of the Constitution provides:
Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.
The Matrimonial Property Act was enacted to give effect to the principle in Article 45(3) of the Constitution. Section 7 of the Act makes provision relating to ownership of matrimonial property as follows:
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.
Additionally, there are certain presumptions that may be made as to property acquired during marriage. Section 14 of the Act provides:
Where matrimonial property is acquired during marriage—
in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse; and
in the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal.
In the case of TMW – VS- FMC [2018] eKLR the courts held as follows:-
As regards ownership of Matrimonial Property, Section 7 of the Matrimonial Property Act , states as follows:-“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.
Therefore, beyond establishing the fact of marriage, a party is required to also demonstrate their contribution to the acquisition or development of the assets acquired during the subsistence of the marriage. In reality this is easier said than done as for most people while the marriage is still on its two feet they will not keep a log of the shillings and cents they have invested in the family projects. It is only when the marriage falls on its knees and this information is required that they realise this information is not available or at best is based on supposition and is somewhat hazy owing partly to the passage of time and the fact that during the existence of the marriage there was no need to treat as separate that which they assumed was acquired for the benefit of the family. Given the law as it stands and the ever-increasing incidence of divorce and division of matrimonial property parties may want to consider entering into pre-nuptial agreements and probably being more intentional about documenting their contribution.
Until that day when we will have evolved in that direction the Courts are left with the herculean task of determining how the property should be divided between the parties in a manner that while considering the contribution of each of the parties also ensures the dignity of each of the parties is safeguarded. The Court in arriving at this decision will weigh both the financial and non-financial contribution of the parties-
The UK House of Lords decision in White v White [2001] 1 AC 596, which was cited with approval by the Supreme Court in Petition No. 11 of 2020 Ogentoto v Ogentoto on the weighting between financial and non-financial contribution-
Self-evidently, fairness requires the court to take into account all the circumstances of the case. Indeed, the statute so provides. It is also self-evident that the circumstances in which the statutory powers have to be exercised vary widely. As Butler-Sloss LJ said in Dart v Dart [1996] 2 FLR 286, 303, the statutory jurisdiction provides for all applications for ancillary financial relief, from the poverty stricken to the multi-millionaire. But there is one principle of universal application which can be stated with confidence. In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles. Typically, a husband and wife share the activities of earning money, running their home and caring for their children. Traditionally, the husband earned the money, and the wife looked after the home and the children. This traditional division of labour is no longer the order of the day. Frequently both parents work. Sometimes it is the wife who is the money-earner, and the husband runs the home and cares for the children during the day. But whatever the division of labour chosen by the husband and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering paragraph (f), relating to the parties'''' contributions. This is implicit in the very language of paragraph (f): ''''. . . the contribution which each has made or is likely . . . to make to the welfare of the family, including any contribution by looking after the home or caring for the family.'''' If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the home-maker and the child-carer.
In JNN v PMN [2025] KECA 1267 (KLR) the Court had this to say-
There is no set formula which can, with scientific exactitude, share matrimonial property, and courts have grappled over the years to find the most fair and just way to resolve the issue when marriages fail to reach their intended conclusion.
It is a well settled principle that each case has to be considered on its own merits. The Court of Appeal stated as much in TKM v SMW [2020] eKLR:
We bear in mind the edict in M v M (2002) 1 EA 186, and many other decisions reminding the courts that in assessing the contribution of spouses in acquisition of matrimonial property, each case must be dealt with on the basis of its peculiar facts and circumstances but bearing in mind the principle of fairness.
The parties herein formalized their marriage on 28 th November 2015. It was dissolved via decree absolute on 30 th March 2024. They set up their matrimonial home at Plot No. 5 excised from Mavoko Town Block 2/90. I can deduce from the evidence that the applicant secured a loan towards the purchase and development of the property. Her evidence which was not challenged is that she continues to service a loan with respect to that property. The Respondent urged that he contributed towards the acquisition and development and when pushed to substantiate stated that his contribution was the identification of the parcel, negotiating sale and supervising the construction. The documents of the purchase transaction have the joint names of the Applicant and Respondent.
The family also obtained LR NO. Mavoko Town Block 3/1048. The sale agreement before court shows the defendant as the sole purchaser. The Respondent contends that he bought and developed the property on his own and discounts the applicant’s assertion that she took a loan to contribute to the construction of the rental units. There is a 3 rd party who has laid claim to the property and the dispute is in Court. The respondent however continues to collect rent from the units.
It is not disputed that the Respondent purchased the plot in Bukura Town, Kakamega County. Although the property is not well described, both parties seem to be aware of the property and it is not in dispute that there is construction that happened during the pendency of the marriage. There was evidence however that on account of the dispute the project has stalled and the construction is actually neglected and over grown with grass.
I am persuaded that the applicant has taken out loans to contribute towards the family projects, she is the one currently servicing the loan for the matrimonial home, erected on Plot No. 5 excised from Mavoko Town Block 2/90. On the evidence on record, I would calculate the respondent’s contribution towards the matrimonial home at 10% ( Plot No. 5 excised from Mavoko Town Block 2/90.) I am persuaded that the applicant contributed to the construction of the units both in Kakamega and on Mavoko Town Block 3/ 1048. I would assess her contribution in this regard to be 30 %.
The circumstances of this case lend themselves to having the parties keeping separate properties, accordingly I make the following orders-
The Applicant shall forfeit her interest in Mavoko Town Block 3/1048 and the units constructed on the Bukura town Plot in Kakamega
The Respondent shall forfeit his 10% interest in the Plot No. 5 excised from Mavoko Town Block 2/90.
Plot No. 5 excised from Mavoko Town Block 2/90 shall vest in the Applicant absolutely. The Respondent shall vacate the home with immediate effect and the applicant shall take occupation.
Mavoko Town Block 3/1048 will vest in the Respondent absolutely.
For the avoidance of doubt the plot at Bukura in Kakamega County does not comprise matrimonial property, the applicant will forfeit her contribution to the construction of the units thereon
So as to facilitate transmission of the property the respondent will sign any documents to facilitate transfer within 21 days of delivery to him, in default the Deputy registrar will execute the same.
Each party shall bear their own costs for this summons.
Any party exercising their right to appeal to do so within 30 days.
It is so ordered.
SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 2nd Day of October, 2025.
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The Originating Summons dated 14 th June 2024 is presented by the Applicant under Articles 45 (3) of the Constitution; Sections 14 and 17 of the Matrimonial Property Act and rule 7 of the Matrimonial Property Rules and seeks the following orders;
THAT a declaration do issue that the 4 bedroom house erected on Plot No. 5 excised from Mavoko Town Block 2/90 along Katani Road, Syokimau together with the fittings therein is not matrimonial property and is owned by the Applicant alone.
THAT a declaration do issue that the house erected on L.R Mavoko Town Block 3/1048 within Mavoko municipality together with the fittings therein and rental income therefrom is matrimonial property and is owned equally by the Applicant and the Respondent.
THAT a declaration do issue that 10 hostels in Bukura town in Kakamega County together with the fittings therein and the rental income therefrom is matrimonial property and is owned equally by the Applicant and the Respondent.
THAT a declaration do issue that the applicant has a beneficial and/or proprietary interest over the houses erected on L.R Mavoko Town Block 3/1048 within Mavoko municipality and 10 hostels in Bukura town of Kakamega County and Nairobi together with the fittings therein.
THAT a declaration do issue that the Applicant has a right to exclusive access and ownership of the 4 bedroom house erected Plot No. 5 excised from Mavoko Town Block 2/90 along Katani Road, Syokimau together with the fittings therein.
THAT a declaration do issue that the Respondent does not have capacity to lease or rent out, allow access to third parties or in any manner alienate the 4 bedroom house erected on Plot No. 5 excised from Mavoko Town Block 2/90 along Katani Road, Syokimau together with the fittings therein without the consent of the Applicant.
THAT a declaration do issue that the Applicant is entitled to an equal share of the rental income generated from the lease erected on L.R Mavoko Town Block 3/1048 within Mavoko municipality and 10 hostels in Bukura town of Kakamega County together with fittings therein.
THAT an order do issue directing the Respondent to file a disclosure and statement of accounts for the rental income generated from the lease of the houses erected on L.R Mavoko Town Block 3/1048 within Mavoko municipality and 10 hostels in Bukura town of Kakamega County together with the fittings therein with effect from January 2023.
THAT the income from the lease of the houses erected on L.R Mavoko Town Block 3/1048 within Mavoko municipality and 10 hostels in Bukura town of Kakamega county together with the fittings therein earned by the Respondent with effect from January 2023 be shared between the Applicant and the Respondent.
THAT the income from the lease of the houses erected on L.R Mavoko Town Block 3/1048 within Mavoko municipality and 10 hostels in Bukura town of Kakamega County together with the fittings therein be paid to a joint account to be shared equally between the Applicant and the Respondent.
THAT this Honourable Court do issue such further or alternative orders that may deem appropriate in the circumstances of the case.
THAT costs of these proceedings be borne by the Respondent.
The Summons was supported by an Affidavit of even date sworn by the Applicant. She filed a Supplementary Affidavit dated 24 th June 2024.
The Respondent opposed the Originating Summons vide a Replying Affidavit sworn on 13 th September 2024.
APPLICANT’S CASE.
The Applicant states that she and the Respondent got married on 28 th November 2015 at the Kenya Assemblies of God. Their marriage was dissolved vide Milimani Divorce Cause No. E357 of 2023 on 30 th March 2024. During the subsistence of their marriage, she took loans and purchased Plot No. 5 excised from Mavoko Town Block 2/90 along Katani Road Syokimau and erected a four-bedroom house together with fittings. Although the sale agreement was executed in their joint names, she avers that the Respondent did not make any financial contribution towards the purchase and construction of the house and therefore, she is entitled to the whole property. She avers that the Respondent is in possession of their matrimonial home which she continues to service the loan solely up to date. When the relationship between the respondent and her became untenable, she was forced to look for alternative accommodation for herself and the children of the marriage.
During the subsistence of the marriage, she took another loan and availed the funds towards the construction of rental units on L.R Mavoko 3/1048 which is registered in the Respondent’s name. She argues that the Respondent enjoys rent from this property to her detriment. She is claiming 50% ownership and possession of the same. She avers that she took a loan and applied funds towards the construction of 10 hostels in Bukura Town in Kakamega on a property that is registered in the Respondent’s name. She stated that the Respondent has been enjoying rental income to her detriment. She seeks 50 % ownership and possession of the said property.
RESPONDENT’S CASE.
The Respondent’s case is that, he and the Applicant agreed to purchase Plot No. 5 within Mavoko Town Block 2/90 jointly. Since the Applicant was fully employed, he asked her to take a loan from her employer and he would assist her to pay it. He made payments by withdrawing money and offsetting the loan through a company known as Last Don Services Limited where he and the Applicant are directors. In 2012, he solely purchased property known as L.R No. Block 3/1048 and put up rental houses. The property is still registered in the name of the seller. The Applicant was unemployed during this time and therefore, she did not contribute financially in the purchase of the property and construction of the rental houses. He constructed ten single rooms each fetching Kshs. 1500. From the collected amount, he pays the caretaker Kshs. 5,000 per month, utilises between Kshs. 2,000- Kshs. 3,000 for routine maintenance and is left with Kshs. 7,000 to maintain himself since he is currently unemployed.
He purchased land in Bukura town in Kakamega county in the year 2006 from a relative before meeting the applicant. He put up rental houses which he is yet to complete because of a succession dispute. He argues that it does not fetch any rental income. He stated that the applicant left the matrimonial home on her own volition. According to him, he contributed more than the applicant toward the purchase and construction of their matrimonial home.
He argues that the applicant does not have a claim on L.R No. Block 3/1048 and the property in Bukura Town. That the orders being sought by the applicant regarding the property in Bukura town are incapable of being issued because the construction is incomplete and does not fetch any income. He stated that Plot No. 5 Mavoko Town Block 2/90 be distributed in the ratio of 70:30 in his favour. He accuses the Applicant of purchasing other properties and failing to disclose the same before this court.
APPLICANT’S FURTHER AFFIDAVIT DATED 24 TH SEPTEMBER 2024.
Although she is a director of Last Don Services Limited, she denied withdrawing any money towards the payment of the loan she took. She denied the allegation that she was unemployed in 2012 and reiterates that she took a loan towards the construction of rentals in L.R Mavoko Town Block 3/1048. The Respondent indicated that the rental income would be used to repay back the loan she took which has never been repaid back. She insists that she took a loan towards the construction of the rentals in Bukura town and the last time she checked, the construction was complete. She denied the allegation that the Respondent made a substantial contribution towards the matrimonial property. She sent the Respondent money for construction materials and payment of the workers while the Respondent supervised the construction. She stated that the Respondent has not proved his contribution towards the purchase and construction of their matrimonial home. She denied the allegation that she has purchased properties which were not brought to the attention of this court.
EVIDENCE .
The Applicant testified as PW1. She told the court that she is claiming a share of the matrimonial property especially the matrimonial home on Mavoko/2/90. Her evidence was that, she is a dormant partner at Last Down Limited with 20% shares. She withdrew money from the account and sent the money to the Respondent. The Respondent did not utilise the money towards the construction project. In 2012, she was working at Setlack Limited. She left in September 2012 and moved to a parastatal. The Respondent has not demonstrated financial contribution towards acquisition of the property. She continues to service the loan and is paying rent where she lives with the children of the marriage. The Respondent re married and lives in their matrimonial home.
During cross- examination , she stated that Mavoko /3/1048 was purchased in December 2012. The Respondent paid a purchase price of Kshs. 400,000. She did not contribute towards the purchase of the land. There are 14 houses on the land, 1 bedroom bungalows and bedsitters. Rent is approximately between Kshs. 2000 to Kshs. 2,500 per month. She took a loan of Kshs. 400,000 from TARDA Sacco to complete the construction of the units. The Respondent was to repay the loan. She did not contribute towards the purchase of the land in Bukura. She doesn’t know if anyone is living in the rental units. She contributed towards the construction of the units on the property. She took a loan of Kshs. 450,000 from TARDA Sacco in 2019. She doesn’t know the total cost of the construction. She doesn’t know if the property in Mavoko and Bukura are registered in the Respondent’s name.
She paid the full purchase price of Kshs. 1.2 million for Mavoko/2/90. She withdrew Kshs. 200,000 on 5 th February 2021 and Kshs. 250,000 on 10 th February 2021 and gave them to the Respondent in cash. Money in the account was paid to the Respondent for construction a swimming pool. She paid the total cost of Kshs. 5 million for construction of their matrimonial home. She is not constructing on a parcel in Kitale which is ancestral land. She took a loan of Kshs. 6 million for the construction of the matrimonial home. There is a case relating to Block 2/90.
In re-examination, she stated that the property in Kitale is registered in her father’s name. She took a loan of Kshs. 5.5 million from Family Bank.
DW1, the Respondent, he purchased the property in Bukura from his maternal aunt in 2006. He begun construction of hotels but the construction stalled because of a succession dispute. He got a job to drill a borehole in 2018 and used the money to commence construction. The property is not generating income. The Applicant did not make any contribution. Mavoko 3/1048 is not registered in his name. He lodged a caveat against the property. There are 14 single rooms. Four of them are not habitable. He collects Kshs. 15,000 per month . he only saves around Kshs. 8,000 after paying the caretaker and other expenses. He was paid Kshs. 3 million in December 2012 for a job he did in DRC and he used part of the money for construction of the matrimonial home and repaid part of the loan taken by the applicant. The loan taken by the applicant was not put to construction of the matrimonial home. The property was purchased jointly. He assisted to repay the loan.
The withdrawals he made from Last Don Limited were for the construction of the house. The applicant did not give him the money she withdrew. His contribution towards the construction of the matrimonial home was Kshs. 3 million while the applicant’s contribution was Kshs. 2 million.
During cross- examination , he stated he spent Kshs. 1 million on the pool construction. Part of the balance was channelled to the construction of the house. He was on the site making payments. He stated that his contribution towards the matrimonial home was both financial and supervision. The applicant did not contribute towards the construction in Mavoko. By the time she took the loan, the units were complete. Part of the withdrawals she made were repayments to herself which amounted to Kshs. 600,000. His contribution to the matrimonial home was identifying the land, negotiating sale and supervising the construction. After purchase, he contributed towards fencing the plot.
In re-examination, he stated that he did not receive all the money withdrawn from the company account. The applicant took a car loan of Kshs. 750,000 and has not disclosed this to the court.
APPLICANT’S SUBMISSSIONS.
Relying on Sections 2 and 14 of the Matrimonial Property Act, it was her submission that Plot No. 5 excised from Mavoko Town Block 2/90 along Katani Road which was acquired during the subsistence of the marriage, the sale agreement appears to be in the names of both parties and so is the certificate of ownership of the plot there is therefore enough evidence that this is matrimonial property. It was her submission that L.R. Mavoko Town Block 3/1048 is also matrimonial property having been acquired during the subsistence of the marriage. She relied on the decision of T.M.V. vs F.M.C [2018] eKLR .
On the contribution of each party, she quoted Section 7 of the Matrimonial Property Act which states that ownership of Matrimonial Property depends on each spouses’ contribution. She relied on the decision of JOO v MBO (2023) KESC 4 (KLR). In this case, she argued that she took loans for the construction of the matrimonial home in Mavoko. She had also shown proof that she took loans from TARDA Sacco to help in the construction of the rental units in Mavoko and Bukura Town. She argued that the Respondent alleged to have made a contribution of Kshs. 3 million towards the construction of their matrimonial home but the same had not been proved. It was her submission that in any case, her contribution was higher than that of the Respondent and she is entitled to the orders sought. She is still paying off the loans borrowed. She urged the court that in the absence of proof of contribution by the Respondent, the matrimonial should be shared in the ratio of 80:20 in her favour while she gets 50 % of the other properties.
RESPONDENT’S SUBMISSIONS.
The Respondent identified the following as issues to be determined by this court;
Do the properties constitute matrimonial property?
If yes, did the Plaintiff contribute to their acquisition and development of the Properties?
Is the Plaintiff entitled to equal share or such higher proportion of the matrimonial property?
On the first issue, the Respondent submits that the only property that meets the definition of matrimonial property as stated in Section 6 of the Matrimonial Property Act is Plot No. 5 excised from Mavoko Town Block 2/90 along Katani Road, Syokimau. He argued that the property in Bukura was purchased in 20006 before he met the applicant. It was his submission that such property is excluded from being referred to as matrimonial property. He relied on the decision of ENK v JNK (2015) eKLR . He argued that L.R Mavoko Town Block 3/1048 is not matrimonial property because the applicant did not make any contribution towards it’s purchase or construction of the rentals.
On the second issue, the Respondent submitted that the applicant had not proved any contribution towards the purchase of the properties in dispute. He also submitted that the applicant The Respondent argued that she had also failed to prove improvement on the matrimonial properties and therefore, she is not entitled to the reliefs sought.
On the third issue, relying on the decision in AWM v JGK [2021] eKLR and PNN v ZWN [2017] eKLR, on contribution and how property should be shared, the Respondent submitted that the applicant is only entitled to 30% of the properties considering the fact that she made no contribution towards their purchase and development.
ANALYSIS AND DETERMINATION.
Having considered the respective pleading of the parties, their evidence, submissions, authorities cited and relevant; I discern the following as the issues for determination;
Which, if any of the suit property constitute matrimonial property.
What is the respective share of each party to the matrimonial property?
Who should pay costs ?
Which, if any of the suit property constitute matrimonial property.
Section 6 of the Matrimonial Property Act defines ‘matrimonial property’ as:
the matrimonial home or homes;
household goods and effects in the matrimonial home or homes; or
any other immovable and movable property jointly owned and acquired during the subsistence of the marriage .
Under Section 2 of the Act, ‘Matrimonial home’ has been defined as:-
any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property .
In the case of T.M.V. vs F.M.C [2018] eKLR, Nyakundi J. opined that:-
…for property to qualify as matrimonial property, it ought to have been during the subsistence of the marriage between the parties acquired unless otherwise agreed between them that such property would not form part of matrimonial property.
In the Ugandan High Court, Mwangusya J. in Paul Kagwa vs. Jackline Muteteri (Matrimonial Cause-2005/23) [2006] UGHC 17 (18 May 2006) while citing Bossa, J in John Tom Kintu Mwanga vs. Myllious Gafafusa Kintu (Divorce Appeal No. 135 of 1997) (unreported) expressed himself as hereunder:-
On the last issue of whether the petitioner is entitled to matrimonial property, I clearly believe that she does and I so hold. Matrimonial property is understood differently by different people. There is always that property which the couple chose to call home. There may be property which may be acquired separately by each spouse before and after marriage. Then there is property which the husband may hold in trust for the clan. Each of these should in my view be considered differently. The property to which each spouse is entitled is that property which the parties choose to call home and which they jointly contribute to.
In this case, both the Applicant and the Respondent agree that the Plot No. 5 excised from Mavoko Town Block 2/90 and LR Mavoko Town Block 2/90 were acquired during the subsistence of the marriage. The sale agreement presented before this court for Mavoko Town Block 3/1048 was drawn on 18 th December 2012. The sale agreement for Plot No. 5 excised from Mavoko Town Block 2/90 was drawn on 11 th July 2020. I therefore hold that LR Number Mavoko Town Block 3/1048 and Plot No. 5 excised from Mavoko Town Block 2/90 were acquired during the subsistence of the marriage for the benefit of the family and are therefore matrimonial property.
Regarding the plot in Bukura town in Kakamega County, the Respondent argues that the property was acquired before he met the applicant. He argued that he bought the property from his aunt. He constructed 10 hostels on the property but the same has stalled because of a succession dispute. The Applicant on the other hand argues that she contributed towards the construction of the hostels. The property was acquired on 21 st June 2006 which was before the parties got married.
From the definition above any property that is acquired by either spouse prior to the marriage shall remain separate property owned by the person who acquired it. The other spouse can only acquire interest if they make contribution to the improvement of the property. That interest will be commensurate with the improvement made. This is provided for by section 9 of the Act which provides:
Where one 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 improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made.
This property therefore is not matrimonial property but the applicant will be entitled to benefit if she can prove her contribution to the developments on the property.
What is the respective share of each party to the matrimonial property?
The law governing division of matrimonial property is contained in Constitution of Kenya, 2010 and the Matrimonial Property Act. Article 45(3) of the Constitution provides:
Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.
The Matrimonial Property Act was enacted to give effect to the principle in Article 45(3) of the Constitution. Section 7 of the Act makes provision relating to ownership of matrimonial property as follows:
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.
Additionally, there are certain presumptions that may be made as to property acquired during marriage. Section 14 of the Act provides:
Where matrimonial property is acquired during marriage—
in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse; and
in the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal.
In the case of TMW – VS- FMC [2018] eKLR the courts held as follows:-
As regards ownership of Matrimonial Property, Section 7 of the Matrimonial Property Act , states as follows:-“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.
Therefore, beyond establishing the fact of marriage, a party is required to also demonstrate their contribution to the acquisition or development of the assets acquired during the subsistence of the marriage. In reality this is easier said than done as for most people while the marriage is still on its two feet they will not keep a log of the shillings and cents they have invested in the family projects. It is only when the marriage falls on its knees and this information is required that they realise this information is not available or at best is based on supposition and is somewhat hazy owing partly to the passage of time and the fact that during the existence of the marriage there was no need to treat as separate that which they assumed was acquired for the benefit of the family. Given the law as it stands and the ever-increasing incidence of divorce and division of matrimonial property parties may want to consider entering into pre-nuptial agreements and probably being more intentional about documenting their contribution.
Until that day when we will have evolved in that direction the Courts are left with the herculean task of determining how the property should be divided between the parties in a manner that while considering the contribution of each of the parties also ensures the dignity of each of the parties is safeguarded. The Court in arriving at this decision will weigh both the financial and non-financial contribution of the parties-
The UK House of Lords decision in White v White [2001] 1 AC 596, which was cited with approval by the Supreme Court in Petition No. 11 of 2020 Ogentoto v Ogentoto on the weighting between financial and non-financial contribution-
Self-evidently, fairness requires the court to take into account all the circumstances of the case. Indeed, the statute so provides. It is also self-evident that the circumstances in which the statutory powers have to be exercised vary widely. As Butler-Sloss LJ said in Dart v Dart [1996] 2 FLR 286, 303, the statutory jurisdiction provides for all applications for ancillary financial relief, from the poverty stricken to the multi-millionaire. But there is one principle of universal application which can be stated with confidence. In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles. Typically, a husband and wife share the activities of earning money, running their home and caring for their children. Traditionally, the husband earned the money, and the wife looked after the home and the children. This traditional division of labour is no longer the order of the day. Frequently both parents work. Sometimes it is the wife who is the money-earner, and the husband runs the home and cares for the children during the day. But whatever the division of labour chosen by the husband and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering paragraph (f), relating to the parties'''' contributions. This is implicit in the very language of paragraph (f): ''''. . . the contribution which each has made or is likely . . . to make to the welfare of the family, including any contribution by looking after the home or caring for the family.'''' If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the home-maker and the child-carer.
In JNN v PMN [2025] KECA 1267 (KLR) the Court had this to say-
There is no set formula which can, with scientific exactitude, share matrimonial property, and courts have grappled over the years to find the most fair and just way to resolve the issue when marriages fail to reach their intended conclusion.
It is a well settled principle that each case has to be considered on its own merits. The Court of Appeal stated as much in TKM v SMW [2020] eKLR:
We bear in mind the edict in M v M (2002) 1 EA 186, and many other decisions reminding the courts that in assessing the contribution of spouses in acquisition of matrimonial property, each case must be dealt with on the basis of its peculiar facts and circumstances but bearing in mind the principle of fairness.
The parties herein formalized their marriage on 28 th November 2015. It was dissolved via decree absolute on 30 th March 2024. They set up their matrimonial home at Plot No. 5 excised from Mavoko Town Block 2/90. I can deduce from the evidence that the applicant secured a loan towards the purchase and development of the property. Her evidence which was not challenged is that she continues to service a loan with respect to that property. The Respondent urged that he contributed towards the acquisition and development and when pushed to substantiate stated that his contribution was the identification of the parcel, negotiating sale and supervising the construction. The documents of the purchase transaction have the joint names of the Applicant and Respondent.
The family also obtained LR NO. Mavoko Town Block 3/1048. The sale agreement before court shows the defendant as the sole purchaser. The Respondent contends that he bought and developed the property on his own and discounts the applicant’s assertion that she took a loan to contribute to the construction of the rental units. There is a 3 rd party who has laid claim to the property and the dispute is in Court. The respondent however continues to collect rent from the units.
It is not disputed that the Respondent purchased the plot in Bukura Town, Kakamega County. Although the property is not well described, both parties seem to be aware of the property and it is not in dispute that there is construction that happened during the pendency of the marriage. There was evidence however that on account of the dispute the project has stalled and the construction is actually neglected and over grown with grass.
I am persuaded that the applicant has taken out loans to contribute towards the family projects, she is the one currently servicing the loan for the matrimonial home, erected on Plot No. 5 excised from Mavoko Town Block 2/90. On the evidence on record, I would calculate the respondent’s contribution towards the matrimonial home at 10% ( Plot No. 5 excised from Mavoko Town Block 2/90.) I am persuaded that the applicant contributed to the construction of the units both in Kakamega and on Mavoko Town Block 3/ 1048. I would assess her contribution in this regard to be 30 %.
The circumstances of this case lend themselves to having the parties keeping separate properties, accordingly I make the following orders-
The Applicant shall forfeit her interest in Mavoko Town Block 3/1048 and the units constructed on the Bukura town Plot in Kakamega
The Respondent shall forfeit his 10% interest in the Plot No. 5 excised from Mavoko Town Block 2/90.
Plot No. 5 excised from Mavoko Town Block 2/90 shall vest in the Applicant absolutely. The Respondent shall vacate the home with immediate effect and the applicant shall take occupation.
Mavoko Town Block 3/1048 will vest in the Respondent absolutely.
For the avoidance of doubt the plot at Bukura in Kakamega County does not comprise matrimonial property, the applicant will forfeit her contribution to the construction of the units thereon
So as to facilitate transmission of the property the respondent will sign any documents to facilitate transfer within 21 days of delivery to him, in default the Deputy registrar will execute the same.
Each party shall bear their own costs for this summons.
Any party exercising their right to appeal to do so within 30 days.
It is so ordered.
SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 2nd Day of October, 2025.
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