' 1. Before Court is the Applicant’s Originating Summons 13/06/2022. The same is filed by the Applicant through Messrs Mukabane & Kagunza Advocates and its prayers section is premised as follows:
“LET DAVID KIRUI of Post office P.O Box 22 NANDI HILLS within Fifteen (15) days of service of this Summons enter appearance to this Summons, which is issued on the application of RAEL CHEPLETING KIRUI of Post Office P.O Box 63 MACHAKOS a who claims interest in LR No. NANDI/KIPSIGAK/1796, LR No. NANDI/KIPSIGAK LR No. NANDI KIPSIGAK/307, KITALE KIBAGENGE FARM, KAPCHEBOCHOK FARM near Griffins Academy, Motor vehicle registration No. KBV 250W, Motor vehicle No. KCP 151P, Motor vehicle registration No. KAX 844 U, Tractor Reg No. KCP 485C, Motor vehicle registration No. KCU 278X, Pension (provident fund) with Eastern Produce (EPK ) Annuity and Benevolent Fund (hereinafter referred to as the "suit properties") for ORDERS:-
a) That a declaration be issued that the suit properties hereto were acquired by the joint funds and efforts of the parties herein during the subsistence of their marriage and registered in the name of or in the position of the Respondent and the same is jointly owned by the Applicant and the Respondent and as such the Applicant is entitled to equal share or such other share as the Court may award.
b) THAT an order be and is hereby issued directing that the matrimonial properties and/or suit properties be shared equally between the Applicant and Respondent and/or in any ratio as the Court may deem just.
c) THAT in the alternative to (b) above, an order be and is hereby issued directing that the said matrimonial property be sold and the net proceeds of the sale be shared equally between the Applicant and the Respondent.
d) THAT in the alternative of (b) and (c) above, an order be and is hereby issued directing that a valuation by a reputable valuer and/or valuers acceptable to both parties or to be appointed by the Court be carried out on the suit properties and upon such valuation, the Respondent do pay the Applicant and or such other share as the Court may order of the value of the property/properties.
e) THAT upon grant of any of the foregoing, a permanent injunction be and is hereby issued restraining the Respondent by himself, his servants, agents and/or employees from interfering with the Applicant/Applicant lawful enjoyment and quiet possession of the share awarded to her.
f) THAT this Court do issue such further orders as to the redress of the rights in the interest of justice.
g) THAT the costs of this Application be awarded to the Applicant.
2. In her Affidavit in support of the Summons, the Applicant deponed that she got married to the Respondent on 22/12/1990 which union was blessed with 3 children but which was dissolved on 10/10/2019. She deponed that during the pendency of the marriage, they acquired the properties listed above, and that she is also a beneficiary of the Respondent’s Pension. She deponed that they lived in the parcel of land L.R. No. Nandi Kipsigak/307 comprising their matrimonial home, that the furniture, household goods, and fittings in the home were purchased by her and being a teacher by profession, her contribution towards acquisition of the properties was both monetary and non-monetary in the form of childcare, companionship and management of the home and properties. She contended that the Respondent has not allocated any share of the properties to her despite her entitlement thereto, and that her interests cannot be extinguished since she was the legitimate wife of the Respondent before the divorce. She exhibited a copy of the Decree Absolute issued in Eldoret CMDC No. 69 of 2016 dated 30/04/2019 and also copies of Official Searches for two parcels of land, log-books for 5 motor vehicles, and Amended Certificate of Confirmation of Grant issued in Kapsabet SPMC Succession Cause No. 114 of 2019-Estate of Kiboson Arap Barno dated 7/05/2021.
3. In opposition to the Summons, the Respondent, through Messrs R.M. Wafula & Co. Advocates, filed the lengthy 69-paragraph Replying Affidavit sworn by him on 12/09/2022. In the Affidavit, he denied that the union was dissolved on 10/10/2019. He then deponed that he single-handedly acquired the parcel of land Nandi/Kipsigak/1796, about 2003, the same with Nandi/Kipsigak/307, from estate of the late Kiboson Arap Barno, which he acquired on piece-meal basis between 2002-2005 from different people who had acquired portions thereof from the family of the deceased. He deponed that he single-handedly developed the property in various ways, including fencing it, planting trees and tea crops, building a dairy shed and 2 storeys building thereon, building and improving the same as his retirement home together with a kitchen and installing a water system. He stated that he is not the registered owner of the property, Nandi/Kipsigak/307, and also denied that Nandi/Kipsigak/304, belongs to him and that he therefore has no legally recognized interest in it. He also denied that the Applicant and himself have at any time single-handedly or jointly acquired the property L.R. No. Kitale Kibagenge Farm, and also denied any knowledge of the property Kapchebochok Farm. He urged further that the Applicant did not contribute a single cent towards acquisition of the motor vehicles which he single-handedly acquired through a company loan scheme, that during the time that he was servicing the loans, the vehicles were jointly owned by himself and his employer and he used to pay insurance for both.
4. Regarding the motor vehicles, KAX 844U and KBV 250W, he urged that he sold them with the knowledge of the Applicant, to raise funds for their children’s universities fees abroad. Regarding the motor vehicle KCU 278X, he stated that he acquired it in June 2019 through a company loan which he cleared on 30/06/2022 after the couple had already divorced. He denied owning a motor vehicle KCP 151P clarifying that the one he owns is KCD 151P which he acquired in 2018 through a SACCL loan after the Applicant had left in 2015. He also denied owning a tractor KCP 485C, and stated that the one he owns is KTCB 037S, formerly KAN 271E, which he single-handedly acquired in 2012 through another loan. Regarding the Pension (Provident Fund) with his employer, he stated that the Applicant cannot be a beneficiary. He deponed that the Applicant is teacher by profession with a Master’s Degree and pensionable, and wondered what will happen to her own pension. He stated that he has already retired with no other source of income hence it would be unjust for his retirement benefit to be made part of matrimonial property which, in any case, the Applicant has not made any contribution to. He refuted the Applicant’s allegation that she is the one who furnished the home and bought household goods, urging that he is the one who bought the said items, that furniture in the company house was sold to him through a check-off system, and that he purchased all furniture, fittings (his employer’s house) through a company furniture loan scheme.
5. He urged further that the Applicant earns Kshs 31,000/- most of which she had committed towards her education loan/career hence she did not contribute towards acquisition of the properties. He then protested about the Applicant obtaining an ex parte order on 25/07/2022 served upon his former employer yet she had not served the subject Application or the order upon him or his Advocates. He then stated that he married the Applicant in 1990 and by 1993, she had started her education programme, that when they married, the Applicant found him with 3 employees, namely, a cook, gardener and a watchman, that they were blessed with their 1st born child in 1991 upon which he employed an additional nanny, and that the Applicant joined in college in 1993 and continuously pursued her career in Guidance and Counselling, P1 Teacher course, Higher Diploma in Counselling course, Certificate in education, and Masters in Education. He deponed that he assisted and supported the Applicant financially as she pursued and developed her career, that he is the one who facilitated her transport to and from college and university and also paid her fees, that from 2004 and for 10 years, the Applicant was the Chairperson, Kenya Primary School Music Festivals Rift Valley and as such, she was most of the time away from home, that during her education career, the Applicant spent most of her time away from home and family, and in fact, he used to live like a single parent because while the Applicant was busy developing her career, he was the one taking care of the children, and managing the home.
6. He urged further that in 2013, he opened a shop and an M-Pesa Agent outlet and left the management thereof to the Applicant but when she was deserting the home in 2015, she left with the investment and arbitrarily closed the shop and returned the premises to the Landlord, at a time when the Respondent was away on official duties. He reiterated that he single-handedly paid the domestic workers through check-off system, managed the home, took care of the family, developed the properties, paid school, college and university fees for their children, including accommodation, both locally and internationally, which he is still paying for their last-born child. He deponed that since 2015, he has spent about Kshs 3,000,000/- for the 1st born child’s education in Sweden, Kshs 6,000,000/- for the 2nd born child’s education in Australia, and Kshs 3,500,000/- for the last-born child’s education at Strathmore. He added that in 2019, the Applicant was ordered to make equal contribution as he towards their children’s welfare but she has not complied, that in November 2016, the Applicant, their 3 children and himself were supposed to travel to the UK, courtesy of his official duties in regard to which his employer paid for the Applicant’s air ticket, and the family’s full accommodation while he catered for the rest of the travelling and other expenses, but on the last day, the Applicant refused to travel with them even after having gone through all the processes of obtaining visa, hence his employer lost Kshs 50,000/, and the Applicant had hoped the employer would punish the Respondent by making him reimburse the money.
7. He added that all through the marriage, the Applicant was a self-centred person and an uncaring wife or mother who gave preference to her career rather than the children, thus affecting the emotions of the children and their academic performance, that in 2018 when the Applicant was admitted in hospital for a week, the Applicant never bothered to check on him, and that since 2015 when the Applicant deserted the home, he has single-handedly supported their children in terms of university fees to a tune of Kshs 12,500,000/- from loans he borrowed from various financial institutions, some of which he is still servicing, and also sold his shares at Safaricom, and thus he has no savings. He also deponed that in 2015, the Applicant drove to the farm house, L.R. No. Nandi/Kipsigik/307 and carted away all his households away. The other matters deponed are allegations fit for a divorce Court, not for a Matrimonial Property Cause. The Respondent however painted the Applicant as failing as a home maker, and being a fortune seeker. He pointed out that the farm house is his retirement home for which the Applicant has never contributed to its development, that the Applicant is now 52 years old, and has moved on with her life, that the children have a legitimate expectation over the properties, and that the Applicant has been given 5 acres in her parent’s properties which she should be contended with. For this, he exhibited copies of pleadings filed in Eldoret High Court Probation and Administration Cause No. 217 of 1998.
8. The Applicant, in response, filed the Supplementary Affidavit sworn on 25/05/2023 in which she denied the allegations made by the Respondent and deponed that she is the one who took all the responsibilities of educating their children without the Respondent’s support who had income from tea, milk and salary but chose to concentrate on educating his siblings, and that the Respondent used most of his money on concubines and alcohol. She deponed that she took loans to educate the children. She then stated that if the Respondent sold the motor vehicles KAX 844U and KBV 250, then she never saw the proceeds thereof, that contrary to the Applicant’s allegations, the motor vehicle KCU 278X was acquired and/or purchased prior to dissolution of their marriage. Regarding the order dated 13/06/2022, she insisted that it was served upon the Respondent and his Advocate, and that they did not attend Court for hearing of the Application that gave rise to the orders despite being served with the hearing notice.
9. The suit then proceeded for viva voce trial in which the Applicant testified before me on 20/11/2023 and on 6/03/2024, while the Respondent testified before me on 31/10/2024. Both parties did not call any other witnesses.
Applicant’s Testimony
10. The Applicant, led by her Counsel, Mr. Kagunza, testified as PW1, and adopted her said Affidavits. He then reiterated matters already deponed in her Affidavits, including that she contributed to acquisition of the properties directly through her salary, and that she also took loans and gave the Respondent, but the properties were registered in the Respondent’s name. She insisted that all the properties, save for motor vehicle KCU 278X were acquired during the pendency of the marriage. Regarding the children, she testified that she is the one who used to drop them in school and return with them home in the evening. She also insisted that she contributed to construction and development of the matrimonial house erected in the property with Nandi/Kipsigak/307, which was first a mud house and she used to personally smear it before they converted it into a permanent cemented house. She insisted that she wants 50:50 division of all matrimonial property. Under cross-examination by Mr. Wafula, she agreed that the receipts on record show that they were for payments made through the Respondent’s former employer (Eastern Produce Kenya Limited). She then stated that she does not how much the Respondent used to earn but knows that he was a Manager.
11. She denied that the receipts she had produced indicating payments for chicken structure products were in respect to the company house at Nandi Hills town where they kept up to 400 chicken, insisting that the same were for a chicken structure in the matrimonial home, as they kept chicken in both homes but the one at their matrimonial home was for commercial purposes. She however conceded that she had not produced any receipts showing her contribution for the chicken rearing business operated from the company house, and agreed that it is the Respondent who was catering for it. She stated that in 2012, her salary was Kshs 31,000/- but insisted that she was servicing a loan of Kshs 500,000/-, and her net pay was Kshs 15,000/-. He however conceded that he did not produce any documents to prove that she took the alleged loans. Regarding the date of the divorce, she agreed that although in her Supporting Affidavit, she had described the date thereof as 10/10/2019, the correct date is 10/01/2019. Regarding the property Nandi/Kipsigak/307 which comprises the matrimonial home, she agreed that the Amended Certificate of Confirmation of Grant the subject thereof was issued on 26/05/2019, and agreed that she did not produce any document to show that she contributed to purchase thereof, and agreed that her name does not appear in the Agreement for Sale. She stated that they purchased the property from a son of the deceased but she did not know that having purchased from the son, the purchase can be declared null and void, and also agreed that the portion they purchased does not have a title number. Regarding the motor vehicles, she agreed that it is the Respondent who acquired them through loans from his employer and stated that after they divorced, she purchased a separate motor vehicle for herself.
12. She agreed that the motor vehicle KCU 278X was registered in the Respondent’s name in 2019 subsequent to the divorce. Regarding the plot in Kibakerenge, she stated that she does not know the title number and she also did not have any Agreement for Sale for it. She agreed that she commenced her career in 1991-1993 when she joined college and became a teacher, she went back to college in 2004 for Diploma, and later obtained her undergraduate degree in 2009 which course she had commenced in 2006-2007. She then stated that she later obtained several other Certificates but insisted that she used to go for studies during the holidays. She also agreed that they used to have a cook, a watchman, a gardener and a house help, all provided by the Respondent’s employer, although the Respondent told her that it was not for free as the employer used to deduct some amounts from his salary. She however insisted that she is the one who used to pay their nanny. She agreed that the Respondent took huge loans to educate the children but contended that it was his duty. He agreed that the Respondent is the one who is also paying fees for the last-born child who is still in college and also conceded that the Respondent paid part of her own college and university fees, and that the Respondent sold two motor vehicles to raise school fees for the children. She agreed that the Respondent is now retired and agreed that on her part, she is yet to retire. Regarding her demand for the Respondent’s pension, she stated that when her own comes, she can also share it with the Respondent. She stated that she left the matrimonial home after the Respondent chased her away therefrom.
13. Regarding the Mpesa and a clothes shop, she agreed that the Respondent opened them but she insisted that they collapsed and she agreed that she returned it to the Landlord without consulting the Respondent. She agreed that in the divorce Cause Judgment, they were directed to share at 50:50 proportion in the care of their children who were not yet independent. Regarding sending one of their children to Australia for education, she stated that they needed to raise a sum of Kshs 2,200,000/- out of which she contributed Kshs 400,000/-, her other children contributed Kshs 400,000/- and she heard that the Respondent paid the balance of Kshs 1,200,000/-. She stated that she is the one living with that child and she is the one taking care of her upkeep and that is why she did not contribute the same amount as the Respondent in raising the Kshs 2,200,000/-. In re-examination, regarding the poultry business operated in the matrimonial home, she stated it is her who initiated it, constructed the structures, and funded it on most occasions, and they used it for both domestic and commercial purposes. She stated the 1st cheque for Kshs 54,000/- which they received from Naivas supermarket for supplying them with products, they used it to pay school fees when their 1st born child joined Form 1. She stated that they commenced the business in 2012 and the said cheque came in 2015.
14. According to her, the Respondent’s contribution was only when he gave them the motor vehicle. She insisted that she took a loan for Kshs 500,000/- from the bank for the poultry and for planting of tea and for other developments, and also took other loans which she used for paying her school fees, and also obtained HELB loans. She stated that her payslips contained in the Respondent’s bundle of documents showed the deductions. She also insisted that apart from her role as the home-maker, she also took 3 loans to assist in construction of the matrimonial home and to also buy land, and that at the moment, she lives in a rented house.
Respondent’s Testimony
15. The Respondent testified as DW1, and adopted his said Replying Affidavit. He stated that he was employed at Eastern Produce Limited in 1986 and retired in 2022, that he joined as an Accountant earning Kshs 15,000/- per month, rose through the ranks, and left as the Finance and Administration Manager earning Kshs 650,000/- per month. He stated that he had already worked for 14 years by the time he married the Applicant on 22/12/1990 at which time he was earning Kshs 45,000/- per month and the Applicant was not working, having just finished Form 4. He stated that they got their 1st child in July 1991 and 3 months later, the Applicant joined Tambach Teachers College, then in 2001 she joined Methodist University for a degree course in education, and he was the one paying the Applicant’s fees throughout.
16. He stated further that in 2005, the Applicant commenced her Master’s degree course which she completed in 2015. He testified that by the time the Applicant left him, she was earning Kshs 31,000/-, and thus he is the one who used to take care of the family needs. He then repeated further matters already deponed in his Replying Affidavit in respect to him being the one who single-handedly financed and catered for the family needs including paying school and college fees, funding their poultry business, opening for the Applicant a shop for selling children’s clothes and an Mpesa shop, and acquisition of properties, all which he did through his salary, loans and check-off systems from his employer and SACCOs, being provided with a gardener who also used to take care of the poultry, a watchman and cook, all whose salary his employer used to deduct from his earnings. He reiterated that the Applicant never contributed anything and denied that the Applicant took any loan to finance any family project or expenses. He testified that he used to give to the Applicant the proceeds of the poultry business in full, and reiterated that when the Applicant left him in 2015, she brought a lorry and took everything from the Farm house and the shop, that for 10 years, the Applicant was the chair, Kenya Music Festival- Rift Valley and thus was too busy and always away from the home. He also opposed the Applicant’s demand for a share of his Pension.
17. Under cross-examination by Mr. Kagunza, he agreed that the properties Nandi/Kipsigak/307, Nandi/Kipsigak/1796, motor vehicles KAX 844U and KPV 250W, and tractor KTCB 0375 were all acquired and developed during the pendency of the marriage, and reiterated that he has no knowledge of the alleged property described as Kapchbok Farm, near Griffins. He stated that although they were married for 29 years, the Applicant’s assistance was minimal and was confined only to perhaps, upbringing of their children, though itself also minimal. When shown a copy of the Applicant’s payslip for the month of December 2002, which he had included in his own bundle of documents (page 113), he agreed that the same indicates that there were monthly deduction appearing thereon in respect to a loan taken by the Applicant, but averred that the loan was taken by the Applicant for her own use and pointed out that in any event, the purpose of the loan is not shown in the pay-slip, and that he only included the pay-slip to show the monthly salary of Kshs 6,500/- earned by the Applicant as at December 2002. He also agreed that their youngest child has been living with the Applicant since the couple separated and thus, currently lives in Machakos with the Applicant.
18. He reiterated that he sold two motor vehicles, KAX 844U double cabin which he sold in November 2019 having acquired it in 2007 during the pendency of the marriage, and motor vehicle KBU 250W which he acquired around 2012, also during the pendency of the marriage. He insisted that he sold the two with the consent of the Applicant but conceded that he did not have any evidence of the consent. He also denied that he had been too sick that the Applicant had to nurse him. About breastfeeding the children when they were young, and dropping them to and from school, he stated that the Applicant was not doing them entirely as she was away for most of the time. About the property Nandi/Kipsigak/307, he agreed that although it is not in his name, there is a Sale Agreement indicating his ownership (page 53-57 of his bundle), and also clarified that he only purchased a portion thereof, not the entire parcel of land. He also agreed that some of the Receipts he produced are not in his name. About the loans taken by the Applicant, she agreed that they were for her educational and/or college fees. He also agreed that some of the Receipts on record showing expenditure for construction of the poultry businesses are in the name of the Applicant. He denied the allegation that he used his money for his personal pleasure and alcohol. In re-examination, he reiterated matters already stated, including that the two motor vehicles he referred to were sold to raise funds for their child to study in Australia. Regarding their youngest child who is living with the Applicant in Machakos where the Applicant works, he stated that she is 23 years old and is working. When asked by the Court what share he proposes to give to the Applicant, he stated that he is leaving that to the Court.
Submissions
19. After close of the trial, the parties filed written Submissions. The Applicant filed the Submissions dated 10/03/2025, while the Respondent’s Submissions is dated 25/04/2025.
Applicant’s Submissions
20. Counsel for the Applicant recounted the testimonies of the respective witnesses and relevant pleadings on record, and in urging that the assets in question herein constitute “matrimonial property”, cited Section 6 of the Matrimonial Property Act, the case of T.M.V. vs E.M.C. [2018] eKLR, and also the case of S.N. vs F.N. [2019]. In urging that the Applicant’s contribution is recognizable, he cited Section 2 of the Matrimonial Property Act, the case of Civil Appeal No. 142 of 2018-CWM vs JPM [2016] eKLR, and submitted that the Applicant is a trained teacher with Master’s Degree who has been salaried for 25 years and managed the family farms, namely, L.R. No. 1796 and L.R. No. 307 which has tea, and also reared poultry for commercial and subsistence purposes and the proceeds and/or capital contributed towards acquisition of the matrimonial properties which were ultimately registered in the name of the Respondent, being the husband. He pointed that at page 125 of the Respondent’s Replying Affidavit, there is confirmation that the Applicant was operating and managing the business known as “Baby World Nandi Hills” and at page 113, there is confirmation that the Applicant took loans which, according to Counsel, she utilized to purchase matrimonial properties and invest in the family business.
21. He also submitted that the Applicant produced receipts and invoices for building materials from “Linro Agencies”, which demonstrates that she participated in the development of the properties, and that in cross-examination, the Respondent had admitted that the Receipts are in the name of the Applicant. Regarding the sale of the motor vehicles KAX 844U and KBV 250W, he contended that the Respondent sold the same without the Applicant’s consent, and cited Section 12 of the Matrimonial Property Act, on the requirement for spousal consent for such sale in a monogamous marriage. Counsel urged further that it was not disputed that the Applicant contributed in domestic chores where she made improvements to the home so that it does not lose value, she cooked for the Respondent and the children, washed the Respondent’s clothes, took the children to school, and provided companionship to the Respondent. He cited the case of TKM v SMW [2020] eKLR, the case of MNH vs FHM [2018] eKLR. He also contended that although execution of parental responsibility may not by itself be a factor in division of property, the Applicant is the one who took all the responsibilities of educating the children without the support of the Respondent who, though had income from tea, milk and salary, chose to educate his own siblings.
22. Counsel therefore insisted that the Applicant is entitled to a 50 per cent share in the matrimonial property as her evidence demonstrated contribution, both monetary and non-monetary towards acquisition of thereof. He submitted that by virtue of Section 12(1) of the Matrimonial Property Act, the Court has powers to, and should, order that the motor vehicles KAX 844U and KBV 250W sold without the Applicant’s consent and thus void, do revert since the Respondent did not pass a good title to the purchasers and who are therefore holding the vehicles subject to the Applicant’s overriding interest. In the alternative, he urged the Court to order the Respondent to remit ½ share of the net current market proceeds of the sale of the motor vehicles, and for which the Court should order that a reputable valuer be appointed to ascertain the value. He cited the case of NKC v EWK (Matrimonial Cause No. 2 of 2023) (2024) KEHC 1044 (KLR) (20 August 2024). He then urged, in further alternative, that if the Respondent is unable to pay the ½ share, then the same be recovered from the rest of his share in other properties which are not encumbered, and an order of injunction do issue restraining him from dealing with the same.
Respondent’s Submissions
23. On his part, Counsel for the Respondent, in very lengthy Submissions, after recounting the witness’ testimonies, submitted that there is no law requiring equal distribution of matrimonial property between spouses. He cited Section 7 of the Matrimonial Property Act, and the case of PNN v ZWN [2017] eKLR, and averred that in this case, the presumption of equal distribution, joint or trust under Section 14 has been rebutted as the contribution, if any, from the Applicant only proves to be indirect and non-monetary, and which was also diminished by the Respondent’s monetary contribution in hous
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“LET DAVID KIRUI of Post office P.O Box 22 NANDI HILLS within Fifteen (15) days of service of this Summons enter appearance to this Summons, which is issued on the application of RAEL CHEPLETING KIRUI of Post Office P.O Box 63 MACHAKOS a who claims interest in LR No. NANDI/KIPSIGAK/1796, LR No. NANDI/KIPSIGAK LR No. NANDI KIPSIGAK/307, KITALE KIBAGENGE FARM, KAPCHEBOCHOK FARM near Griffins Academy, Motor vehicle registration No. KBV 250W, Motor vehicle No. KCP 151P, Motor vehicle registration No. KAX 844 U, Tractor Reg No. KCP 485C, Motor vehicle registration No. KCU 278X, Pension (provident fund) with Eastern Produce (EPK ) Annuity and Benevolent Fund (hereinafter referred to as the "suit properties") for ORDERS:-
a) That a declaration be issued that the suit properties hereto were acquired by the joint funds and efforts of the parties herein during the subsistence of their marriage and registered in the name of or in the position of the Respondent and the same is jointly owned by the Applicant and the Respondent and as such the Applicant is entitled to equal share or such other share as the Court may award.
b) THAT an order be and is hereby issued directing that the matrimonial properties and/or suit properties be shared equally between the Applicant and Respondent and/or in any ratio as the Court may deem just.
c) THAT in the alternative to (b) above, an order be and is hereby issued directing that the said matrimonial property be sold and the net proceeds of the sale be shared equally between the Applicant and the Respondent.
d) THAT in the alternative of (b) and (c) above, an order be and is hereby issued directing that a valuation by a reputable valuer and/or valuers acceptable to both parties or to be appointed by the Court be carried out on the suit properties and upon such valuation, the Respondent do pay the Applicant and or such other share as the Court may order of the value of the property/properties.
e) THAT upon grant of any of the foregoing, a permanent injunction be and is hereby issued restraining the Respondent by himself, his servants, agents and/or employees from interfering with the Applicant/Applicant lawful enjoyment and quiet possession of the share awarded to her.
f) THAT this Court do issue such further orders as to the redress of the rights in the interest of justice.
g) THAT the costs of this Application be awarded to the Applicant.
2. In her Affidavit in support of the Summons, the Applicant deponed that she got married to the Respondent on 22/12/1990 which union was blessed with 3 children but which was dissolved on 10/10/2019. She deponed that during the pendency of the marriage, they acquired the properties listed above, and that she is also a beneficiary of the Respondent’s Pension. She deponed that they lived in the parcel of land L.R. No. Nandi Kipsigak/307 comprising their matrimonial home, that the furniture, household goods, and fittings in the home were purchased by her and being a teacher by profession, her contribution towards acquisition of the properties was both monetary and non-monetary in the form of childcare, companionship and management of the home and properties. She contended that the Respondent has not allocated any share of the properties to her despite her entitlement thereto, and that her interests cannot be extinguished since she was the legitimate wife of the Respondent before the divorce. She exhibited a copy of the Decree Absolute issued in Eldoret CMDC No. 69 of 2016 dated 30/04/2019 and also copies of Official Searches for two parcels of land, log-books for 5 motor vehicles, and Amended Certificate of Confirmation of Grant issued in Kapsabet SPMC Succession Cause No. 114 of 2019-Estate of Kiboson Arap Barno dated 7/05/2021.
3. In opposition to the Summons, the Respondent, through Messrs R.M. Wafula & Co. Advocates, filed the lengthy 69-paragraph Replying Affidavit sworn by him on 12/09/2022. In the Affidavit, he denied that the union was dissolved on 10/10/2019. He then deponed that he single-handedly acquired the parcel of land Nandi/Kipsigak/1796, about 2003, the same with Nandi/Kipsigak/307, from estate of the late Kiboson Arap Barno, which he acquired on piece-meal basis between 2002-2005 from different people who had acquired portions thereof from the family of the deceased. He deponed that he single-handedly developed the property in various ways, including fencing it, planting trees and tea crops, building a dairy shed and 2 storeys building thereon, building and improving the same as his retirement home together with a kitchen and installing a water system. He stated that he is not the registered owner of the property, Nandi/Kipsigak/307, and also denied that Nandi/Kipsigak/304, belongs to him and that he therefore has no legally recognized interest in it. He also denied that the Applicant and himself have at any time single-handedly or jointly acquired the property L.R. No. Kitale Kibagenge Farm, and also denied any knowledge of the property Kapchebochok Farm. He urged further that the Applicant did not contribute a single cent towards acquisition of the motor vehicles which he single-handedly acquired through a company loan scheme, that during the time that he was servicing the loans, the vehicles were jointly owned by himself and his employer and he used to pay insurance for both.
4. Regarding the motor vehicles, KAX 844U and KBV 250W, he urged that he sold them with the knowledge of the Applicant, to raise funds for their children’s universities fees abroad. Regarding the motor vehicle KCU 278X, he stated that he acquired it in June 2019 through a company loan which he cleared on 30/06/2022 after the couple had already divorced. He denied owning a motor vehicle KCP 151P clarifying that the one he owns is KCD 151P which he acquired in 2018 through a SACCL loan after the Applicant had left in 2015. He also denied owning a tractor KCP 485C, and stated that the one he owns is KTCB 037S, formerly KAN 271E, which he single-handedly acquired in 2012 through another loan. Regarding the Pension (Provident Fund) with his employer, he stated that the Applicant cannot be a beneficiary. He deponed that the Applicant is teacher by profession with a Master’s Degree and pensionable, and wondered what will happen to her own pension. He stated that he has already retired with no other source of income hence it would be unjust for his retirement benefit to be made part of matrimonial property which, in any case, the Applicant has not made any contribution to. He refuted the Applicant’s allegation that she is the one who furnished the home and bought household goods, urging that he is the one who bought the said items, that furniture in the company house was sold to him through a check-off system, and that he purchased all furniture, fittings (his employer’s house) through a company furniture loan scheme.
5. He urged further that the Applicant earns Kshs 31,000/- most of which she had committed towards her education loan/career hence she did not contribute towards acquisition of the properties. He then protested about the Applicant obtaining an ex parte order on 25/07/2022 served upon his former employer yet she had not served the subject Application or the order upon him or his Advocates. He then stated that he married the Applicant in 1990 and by 1993, she had started her education programme, that when they married, the Applicant found him with 3 employees, namely, a cook, gardener and a watchman, that they were blessed with their 1st born child in 1991 upon which he employed an additional nanny, and that the Applicant joined in college in 1993 and continuously pursued her career in Guidance and Counselling, P1 Teacher course, Higher Diploma in Counselling course, Certificate in education, and Masters in Education. He deponed that he assisted and supported the Applicant financially as she pursued and developed her career, that he is the one who facilitated her transport to and from college and university and also paid her fees, that from 2004 and for 10 years, the Applicant was the Chairperson, Kenya Primary School Music Festivals Rift Valley and as such, she was most of the time away from home, that during her education career, the Applicant spent most of her time away from home and family, and in fact, he used to live like a single parent because while the Applicant was busy developing her career, he was the one taking care of the children, and managing the home.
6. He urged further that in 2013, he opened a shop and an M-Pesa Agent outlet and left the management thereof to the Applicant but when she was deserting the home in 2015, she left with the investment and arbitrarily closed the shop and returned the premises to the Landlord, at a time when the Respondent was away on official duties. He reiterated that he single-handedly paid the domestic workers through check-off system, managed the home, took care of the family, developed the properties, paid school, college and university fees for their children, including accommodation, both locally and internationally, which he is still paying for their last-born child. He deponed that since 2015, he has spent about Kshs 3,000,000/- for the 1st born child’s education in Sweden, Kshs 6,000,000/- for the 2nd born child’s education in Australia, and Kshs 3,500,000/- for the last-born child’s education at Strathmore. He added that in 2019, the Applicant was ordered to make equal contribution as he towards their children’s welfare but she has not complied, that in November 2016, the Applicant, their 3 children and himself were supposed to travel to the UK, courtesy of his official duties in regard to which his employer paid for the Applicant’s air ticket, and the family’s full accommodation while he catered for the rest of the travelling and other expenses, but on the last day, the Applicant refused to travel with them even after having gone through all the processes of obtaining visa, hence his employer lost Kshs 50,000/, and the Applicant had hoped the employer would punish the Respondent by making him reimburse the money.
7. He added that all through the marriage, the Applicant was a self-centred person and an uncaring wife or mother who gave preference to her career rather than the children, thus affecting the emotions of the children and their academic performance, that in 2018 when the Applicant was admitted in hospital for a week, the Applicant never bothered to check on him, and that since 2015 when the Applicant deserted the home, he has single-handedly supported their children in terms of university fees to a tune of Kshs 12,500,000/- from loans he borrowed from various financial institutions, some of which he is still servicing, and also sold his shares at Safaricom, and thus he has no savings. He also deponed that in 2015, the Applicant drove to the farm house, L.R. No. Nandi/Kipsigik/307 and carted away all his households away. The other matters deponed are allegations fit for a divorce Court, not for a Matrimonial Property Cause. The Respondent however painted the Applicant as failing as a home maker, and being a fortune seeker. He pointed out that the farm house is his retirement home for which the Applicant has never contributed to its development, that the Applicant is now 52 years old, and has moved on with her life, that the children have a legitimate expectation over the properties, and that the Applicant has been given 5 acres in her parent’s properties which she should be contended with. For this, he exhibited copies of pleadings filed in Eldoret High Court Probation and Administration Cause No. 217 of 1998.
8. The Applicant, in response, filed the Supplementary Affidavit sworn on 25/05/2023 in which she denied the allegations made by the Respondent and deponed that she is the one who took all the responsibilities of educating their children without the Respondent’s support who had income from tea, milk and salary but chose to concentrate on educating his siblings, and that the Respondent used most of his money on concubines and alcohol. She deponed that she took loans to educate the children. She then stated that if the Respondent sold the motor vehicles KAX 844U and KBV 250, then she never saw the proceeds thereof, that contrary to the Applicant’s allegations, the motor vehicle KCU 278X was acquired and/or purchased prior to dissolution of their marriage. Regarding the order dated 13/06/2022, she insisted that it was served upon the Respondent and his Advocate, and that they did not attend Court for hearing of the Application that gave rise to the orders despite being served with the hearing notice.
9. The suit then proceeded for viva voce trial in which the Applicant testified before me on 20/11/2023 and on 6/03/2024, while the Respondent testified before me on 31/10/2024. Both parties did not call any other witnesses.
Applicant’s Testimony
10. The Applicant, led by her Counsel, Mr. Kagunza, testified as PW1, and adopted her said Affidavits. He then reiterated matters already deponed in her Affidavits, including that she contributed to acquisition of the properties directly through her salary, and that she also took loans and gave the Respondent, but the properties were registered in the Respondent’s name. She insisted that all the properties, save for motor vehicle KCU 278X were acquired during the pendency of the marriage. Regarding the children, she testified that she is the one who used to drop them in school and return with them home in the evening. She also insisted that she contributed to construction and development of the matrimonial house erected in the property with Nandi/Kipsigak/307, which was first a mud house and she used to personally smear it before they converted it into a permanent cemented house. She insisted that she wants 50:50 division of all matrimonial property. Under cross-examination by Mr. Wafula, she agreed that the receipts on record show that they were for payments made through the Respondent’s former employer (Eastern Produce Kenya Limited). She then stated that she does not how much the Respondent used to earn but knows that he was a Manager.
11. She denied that the receipts she had produced indicating payments for chicken structure products were in respect to the company house at Nandi Hills town where they kept up to 400 chicken, insisting that the same were for a chicken structure in the matrimonial home, as they kept chicken in both homes but the one at their matrimonial home was for commercial purposes. She however conceded that she had not produced any receipts showing her contribution for the chicken rearing business operated from the company house, and agreed that it is the Respondent who was catering for it. She stated that in 2012, her salary was Kshs 31,000/- but insisted that she was servicing a loan of Kshs 500,000/-, and her net pay was Kshs 15,000/-. He however conceded that he did not produce any documents to prove that she took the alleged loans. Regarding the date of the divorce, she agreed that although in her Supporting Affidavit, she had described the date thereof as 10/10/2019, the correct date is 10/01/2019. Regarding the property Nandi/Kipsigak/307 which comprises the matrimonial home, she agreed that the Amended Certificate of Confirmation of Grant the subject thereof was issued on 26/05/2019, and agreed that she did not produce any document to show that she contributed to purchase thereof, and agreed that her name does not appear in the Agreement for Sale. She stated that they purchased the property from a son of the deceased but she did not know that having purchased from the son, the purchase can be declared null and void, and also agreed that the portion they purchased does not have a title number. Regarding the motor vehicles, she agreed that it is the Respondent who acquired them through loans from his employer and stated that after they divorced, she purchased a separate motor vehicle for herself.
12. She agreed that the motor vehicle KCU 278X was registered in the Respondent’s name in 2019 subsequent to the divorce. Regarding the plot in Kibakerenge, she stated that she does not know the title number and she also did not have any Agreement for Sale for it. She agreed that she commenced her career in 1991-1993 when she joined college and became a teacher, she went back to college in 2004 for Diploma, and later obtained her undergraduate degree in 2009 which course she had commenced in 2006-2007. She then stated that she later obtained several other Certificates but insisted that she used to go for studies during the holidays. She also agreed that they used to have a cook, a watchman, a gardener and a house help, all provided by the Respondent’s employer, although the Respondent told her that it was not for free as the employer used to deduct some amounts from his salary. She however insisted that she is the one who used to pay their nanny. She agreed that the Respondent took huge loans to educate the children but contended that it was his duty. He agreed that the Respondent is the one who is also paying fees for the last-born child who is still in college and also conceded that the Respondent paid part of her own college and university fees, and that the Respondent sold two motor vehicles to raise school fees for the children. She agreed that the Respondent is now retired and agreed that on her part, she is yet to retire. Regarding her demand for the Respondent’s pension, she stated that when her own comes, she can also share it with the Respondent. She stated that she left the matrimonial home after the Respondent chased her away therefrom.
13. Regarding the Mpesa and a clothes shop, she agreed that the Respondent opened them but she insisted that they collapsed and she agreed that she returned it to the Landlord without consulting the Respondent. She agreed that in the divorce Cause Judgment, they were directed to share at 50:50 proportion in the care of their children who were not yet independent. Regarding sending one of their children to Australia for education, she stated that they needed to raise a sum of Kshs 2,200,000/- out of which she contributed Kshs 400,000/-, her other children contributed Kshs 400,000/- and she heard that the Respondent paid the balance of Kshs 1,200,000/-. She stated that she is the one living with that child and she is the one taking care of her upkeep and that is why she did not contribute the same amount as the Respondent in raising the Kshs 2,200,000/-. In re-examination, regarding the poultry business operated in the matrimonial home, she stated it is her who initiated it, constructed the structures, and funded it on most occasions, and they used it for both domestic and commercial purposes. She stated the 1st cheque for Kshs 54,000/- which they received from Naivas supermarket for supplying them with products, they used it to pay school fees when their 1st born child joined Form 1. She stated that they commenced the business in 2012 and the said cheque came in 2015.
14. According to her, the Respondent’s contribution was only when he gave them the motor vehicle. She insisted that she took a loan for Kshs 500,000/- from the bank for the poultry and for planting of tea and for other developments, and also took other loans which she used for paying her school fees, and also obtained HELB loans. She stated that her payslips contained in the Respondent’s bundle of documents showed the deductions. She also insisted that apart from her role as the home-maker, she also took 3 loans to assist in construction of the matrimonial home and to also buy land, and that at the moment, she lives in a rented house.
Respondent’s Testimony
15. The Respondent testified as DW1, and adopted his said Replying Affidavit. He stated that he was employed at Eastern Produce Limited in 1986 and retired in 2022, that he joined as an Accountant earning Kshs 15,000/- per month, rose through the ranks, and left as the Finance and Administration Manager earning Kshs 650,000/- per month. He stated that he had already worked for 14 years by the time he married the Applicant on 22/12/1990 at which time he was earning Kshs 45,000/- per month and the Applicant was not working, having just finished Form 4. He stated that they got their 1st child in July 1991 and 3 months later, the Applicant joined Tambach Teachers College, then in 2001 she joined Methodist University for a degree course in education, and he was the one paying the Applicant’s fees throughout.
16. He stated further that in 2005, the Applicant commenced her Master’s degree course which she completed in 2015. He testified that by the time the Applicant left him, she was earning Kshs 31,000/-, and thus he is the one who used to take care of the family needs. He then repeated further matters already deponed in his Replying Affidavit in respect to him being the one who single-handedly financed and catered for the family needs including paying school and college fees, funding their poultry business, opening for the Applicant a shop for selling children’s clothes and an Mpesa shop, and acquisition of properties, all which he did through his salary, loans and check-off systems from his employer and SACCOs, being provided with a gardener who also used to take care of the poultry, a watchman and cook, all whose salary his employer used to deduct from his earnings. He reiterated that the Applicant never contributed anything and denied that the Applicant took any loan to finance any family project or expenses. He testified that he used to give to the Applicant the proceeds of the poultry business in full, and reiterated that when the Applicant left him in 2015, she brought a lorry and took everything from the Farm house and the shop, that for 10 years, the Applicant was the chair, Kenya Music Festival- Rift Valley and thus was too busy and always away from the home. He also opposed the Applicant’s demand for a share of his Pension.
17. Under cross-examination by Mr. Kagunza, he agreed that the properties Nandi/Kipsigak/307, Nandi/Kipsigak/1796, motor vehicles KAX 844U and KPV 250W, and tractor KTCB 0375 were all acquired and developed during the pendency of the marriage, and reiterated that he has no knowledge of the alleged property described as Kapchbok Farm, near Griffins. He stated that although they were married for 29 years, the Applicant’s assistance was minimal and was confined only to perhaps, upbringing of their children, though itself also minimal. When shown a copy of the Applicant’s payslip for the month of December 2002, which he had included in his own bundle of documents (page 113), he agreed that the same indicates that there were monthly deduction appearing thereon in respect to a loan taken by the Applicant, but averred that the loan was taken by the Applicant for her own use and pointed out that in any event, the purpose of the loan is not shown in the pay-slip, and that he only included the pay-slip to show the monthly salary of Kshs 6,500/- earned by the Applicant as at December 2002. He also agreed that their youngest child has been living with the Applicant since the couple separated and thus, currently lives in Machakos with the Applicant.
18. He reiterated that he sold two motor vehicles, KAX 844U double cabin which he sold in November 2019 having acquired it in 2007 during the pendency of the marriage, and motor vehicle KBU 250W which he acquired around 2012, also during the pendency of the marriage. He insisted that he sold the two with the consent of the Applicant but conceded that he did not have any evidence of the consent. He also denied that he had been too sick that the Applicant had to nurse him. About breastfeeding the children when they were young, and dropping them to and from school, he stated that the Applicant was not doing them entirely as she was away for most of the time. About the property Nandi/Kipsigak/307, he agreed that although it is not in his name, there is a Sale Agreement indicating his ownership (page 53-57 of his bundle), and also clarified that he only purchased a portion thereof, not the entire parcel of land. He also agreed that some of the Receipts he produced are not in his name. About the loans taken by the Applicant, she agreed that they were for her educational and/or college fees. He also agreed that some of the Receipts on record showing expenditure for construction of the poultry businesses are in the name of the Applicant. He denied the allegation that he used his money for his personal pleasure and alcohol. In re-examination, he reiterated matters already stated, including that the two motor vehicles he referred to were sold to raise funds for their child to study in Australia. Regarding their youngest child who is living with the Applicant in Machakos where the Applicant works, he stated that she is 23 years old and is working. When asked by the Court what share he proposes to give to the Applicant, he stated that he is leaving that to the Court.
Submissions
19. After close of the trial, the parties filed written Submissions. The Applicant filed the Submissions dated 10/03/2025, while the Respondent’s Submissions is dated 25/04/2025.
Applicant’s Submissions
20. Counsel for the Applicant recounted the testimonies of the respective witnesses and relevant pleadings on record, and in urging that the assets in question herein constitute “matrimonial property”, cited Section 6 of the Matrimonial Property Act, the case of T.M.V. vs E.M.C. [2018] eKLR, and also the case of S.N. vs F.N. [2019]. In urging that the Applicant’s contribution is recognizable, he cited Section 2 of the Matrimonial Property Act, the case of Civil Appeal No. 142 of 2018-CWM vs JPM [2016] eKLR, and submitted that the Applicant is a trained teacher with Master’s Degree who has been salaried for 25 years and managed the family farms, namely, L.R. No. 1796 and L.R. No. 307 which has tea, and also reared poultry for commercial and subsistence purposes and the proceeds and/or capital contributed towards acquisition of the matrimonial properties which were ultimately registered in the name of the Respondent, being the husband. He pointed that at page 125 of the Respondent’s Replying Affidavit, there is confirmation that the Applicant was operating and managing the business known as “Baby World Nandi Hills” and at page 113, there is confirmation that the Applicant took loans which, according to Counsel, she utilized to purchase matrimonial properties and invest in the family business.
21. He also submitted that the Applicant produced receipts and invoices for building materials from “Linro Agencies”, which demonstrates that she participated in the development of the properties, and that in cross-examination, the Respondent had admitted that the Receipts are in the name of the Applicant. Regarding the sale of the motor vehicles KAX 844U and KBV 250W, he contended that the Respondent sold the same without the Applicant’s consent, and cited Section 12 of the Matrimonial Property Act, on the requirement for spousal consent for such sale in a monogamous marriage. Counsel urged further that it was not disputed that the Applicant contributed in domestic chores where she made improvements to the home so that it does not lose value, she cooked for the Respondent and the children, washed the Respondent’s clothes, took the children to school, and provided companionship to the Respondent. He cited the case of TKM v SMW [2020] eKLR, the case of MNH vs FHM [2018] eKLR. He also contended that although execution of parental responsibility may not by itself be a factor in division of property, the Applicant is the one who took all the responsibilities of educating the children without the support of the Respondent who, though had income from tea, milk and salary, chose to educate his own siblings.
22. Counsel therefore insisted that the Applicant is entitled to a 50 per cent share in the matrimonial property as her evidence demonstrated contribution, both monetary and non-monetary towards acquisition of thereof. He submitted that by virtue of Section 12(1) of the Matrimonial Property Act, the Court has powers to, and should, order that the motor vehicles KAX 844U and KBV 250W sold without the Applicant’s consent and thus void, do revert since the Respondent did not pass a good title to the purchasers and who are therefore holding the vehicles subject to the Applicant’s overriding interest. In the alternative, he urged the Court to order the Respondent to remit ½ share of the net current market proceeds of the sale of the motor vehicles, and for which the Court should order that a reputable valuer be appointed to ascertain the value. He cited the case of NKC v EWK (Matrimonial Cause No. 2 of 2023) (2024) KEHC 1044 (KLR) (20 August 2024). He then urged, in further alternative, that if the Respondent is unable to pay the ½ share, then the same be recovered from the rest of his share in other properties which are not encumbered, and an order of injunction do issue restraining him from dealing with the same.
Respondent’s Submissions
23. On his part, Counsel for the Respondent, in very lengthy Submissions, after recounting the witness’ testimonies, submitted that there is no law requiring equal distribution of matrimonial property between spouses. He cited Section 7 of the Matrimonial Property Act, and the case of PNN v ZWN [2017] eKLR, and averred that in this case, the presumption of equal distribution, joint or trust under Section 14 has been rebutted as the contribution, if any, from the Applicant only proves to be indirect and non-monetary, and which was also diminished by the Respondent’s monetary contribution in hous
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