'1. R.L O.O the applicant herein moved this court by way of originating summons dated 6th July 2023 seeking a declaration that land parcel no. N. Chache /B/B Boburia / 4943 is a matrimonial property and the same shared equally between between him and the respondent under the Matrimonial properties Act .
2. He averred that they celebrated their Civil Marriage 19.12.1993 and later got divorced on 5.7.2022.
3. Also that during the wedding the father to the respondent gifted them land parcel no. N. Chache /B/B Boburia / 4943 and he single handedly built a matrimonial home thereon.
4. Also that he later single handedly bought Land parcel no . N.Chache /B/B Boburia / 8705.
5. He proposed that land parcel No. N. Chache /B/B/ Boburia / 4943 be shared equally between them while and no. 8705 to remain in his name as it is registered in his name and he bought it alone .
6. The respondent filed the replying affidavit dated 3.11.23 in which she admitted that she was married to the applicant and later divorced as alleged . Also that the land parcel No. N. Chache /B/B/ Boburia / 4943 was gifted to them during their wedding by her father as he wanted his grandchildren to have a home . She said they were blessed with 3 children whom she lives with on that said land no 4943.
7. She further deponed that they jointly acquired land parcel number N.Chache /B/B /Boburia / 8705 and she produced her bank statements and loan applications . She deponed that the fact that it is registered in the names of the applicant does not make him an absolute owner as he is holding it in trust for her .
8. The respondent propose that the applicant takes land parcel number N.Chache /B/B /Boburia / 8705 which she takes land parcel number N. Chache /B/B/ Boburia /4943 as she lives thereon with their children.
9. I have carefully considered the applicants case ,the respondents case and the able submissions filed by both counsel herein. It is not disputed that the parties were a couple before they divorced in the year 2022 . It is also not disputed that land parcel N. Chache /B/B/ Boburia / 4943 is matrimonial property .
10. The issues for determination are as follows:
a. Whether the land parcel N.Chache /B/B /Boburia / 8705 is matrimonial property and if so
b. How should the said land parcel no . the land parcel N.Chache /B/B /Boburia / 8705 and N. Chache /B/B/ Boburia / 4943 be shared out between the parties.
11. Section 17 of the matrimonial properties Act provides that that:
“(1) A person may apply to a court for declaration of rights to any property that is contested between that person and a spouse.
(2) An application under subsection (1) –
(a) shall be made in accordance with such procedure as may be prescribed;
(b) may be made notwithstanding that a petition has not been filed under any law relating to matrimonial causes.”
12. On contribution to the acquisition of the said property , Section 2 of the Matrimonial Property Act, 2013 defines contribution in the following terms:
In this Act, unless the context otherwise requires—
“contribution” means monetary and non-monetary contribution and includes—
a) domestic work and management of the matrimonial home;
(b) child care;
(c) companionship;
(d) management of family business or property; and
(e) farm work.
13. Section 7 of the Matrimonial Property Act is clear in its terms that:
“Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”
14. On whether the land parcel N.Chache /B/B /Boburia / 8705 is matrimonial property, the applicant pleaded that he bought that land singlehandedly and that the it is thus not matrimonial property . The respondent ‘s case is that there property is matrimonial as she contributed towards acquiring it and that she took loans and contributed towards purchase of the same and she annexed her bank and Mpesa statements to support this contention. On re-examination the applicant said that he had no problem if the said property is shared at the ratio of 50:50 between both of them .I find that on admission of the applicant the said land Parcel no. N.Chache /B/B /Boburia / 8705 is matrimonial property .
15. On how both matrimonial properties should be shared, land parcel no . the land parcel N.Chache /B/B /Boburia / 8705 and N. Chache /B/B/ Boburia / 4943 be shared out between the parties. The applicant proposed that the properties be shared on 50 :50 basis as he developed N. Chache /B/B/ Boburia / 4943 single handedly . The respondent on her part suggested that the she takes land parcel No. N. Chache /B/B/ Boburia / 4943 where matrimonial home lies while the applicant takes land parcel No. N.Chache /B/B /Boburia / 8705. Applicant said she brought up their 3 children on that land and she is still living on the same land with them . Also that her father was looking at the future stability of his grandchildren while donating the said land to them . She said also that she solely provided for the children’s upkeep and education when they are growing up and this is not denied .
16. I am a guided by the decision of supreme court in the case of JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae)
(Petition 11 of 2020) [2023] KESC 4 (KLR) (Family) (27 January 2023) (Judgment) while dealing with the issue of contribution to matrimonial property held that :
‘’ 12. Equity was an important principle when it came to matrimonial property since what was fair as it is related to equity was not a question of the quantitative contribution by each party but rather thecontribution by any party in any form, whether direct or indirect. Any substantial contribution by a party to a marriage that led to the acquisition of matrimonial property, even though such contributionwas indirect, but had in one way or another, enabled the acquisition of such property amounted to signicant contribution. Such direct or indirect acts included:
a. Paying part of the purchase price of the matrimonial property.
b. Contributing regularly to the monthly payments in the acquisition of such property.
c. Making a substantial nancial contribution to the family expenses to enable the mortgage installments to be paid.
d. Contributing to the running of and welfare of the home and easing the burden of the spouse paying for the property.
e. Caring for children and the family at large as the other spouse worked to earn money to pay for the property.
13. While article 45(3) of the Constitution dealt with equality of the fundamental rights of spouses during
and after the dissolution of marriage, equality did not mean the re-distribution of proprietary rights at the dissolution of a marriage. Neither did the reading of that provision lead to the assumption thatspouses were automatically entitled to a 50% share by fact of being married.
14. The stated equality under article 45(3) of the Constitution meant that the courts were to ensure that at the dissolution of a marriage, each party to a marriage got a fair share of the matrimonial propertybased on their contribution. That was best done by considering the respective contribution of each party to ensure no party was unfairly denied what they deserved as well as ensuring that no party was unfairly given more than what he or she contributed.
15. In a marriage, the general assumption was that both spouses shared everything and on the face of it, both parties contributed towards the home or family in one way or another, to whichever extent,however big or small. ‘’
17. I have considered the rival submissions of the parties herein on the issue, of sharing land parcels herein and the principles laid down in the case of is JOO v MBO (supra ) I have also perused the valuation reports of both land parcels and I note that land No. N.Chache /B/B /Boburia / 8705 is valued at Ksh. 3,600,000/= while land parcel no. N. Chache /B/B/ Boburia / 4943 is valued at Kshs. 11,800,000/=. Article 45(3) of the Constitution provides for fair and equitable distribution of matrimonial property. The financial and non monetary contribution of each spouse towards acquisition and development of the same must be taken into account together with the role of each in bringing up the children , catering for their educational needs , house chores, emotional support to the spouse and family , general home management The contribution of the respondent toward making of the matrimonial home and whether the children live in the matrimonial home .
18. In this case , I have taken into account the fact that the land parcel no. N. Chache /B/B/ Boburia / 4943the was gifted to the parties by the father to respondent as a marriage gift , the sentimental attachment of the respondent to that land as a gift from her father , that applicant contributed to itby constructing the same , the fact that she is living with the children on that land and they were brought up there and it is the only home they know . It has also emerged that the respondent solely took care of the children and family and provided for their basic needs material while they were growing up the fact that the respondent took care of the children while and gave companionship to the applicant during the subsistence of the marriage . The applicant also admitted that he left the respondent in the matrimonial home when the marriage broke down . It is clear that the contribution of the respondent towards establishment of matrimonial home was immense and cannot be quantified in monetary terms . It is in the interest of justice, that I do not disturb the status quo of the possession of the house for the sake if stability of the children . I n the upshot proceed to order the sharing of the matrimonial properties as follows :
i. Land parcel No. N.Chache /B/B /Boburia / 8705 to go solely to the applicant .
ii. Land parcel No. N. Chache /B/B/ Boburia / 4943 to be registered absolutely in the name of the respondent .
iii. This being a matrimonial property each party to bear his on costs.
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2. He averred that they celebrated their Civil Marriage 19.12.1993 and later got divorced on 5.7.2022.
3. Also that during the wedding the father to the respondent gifted them land parcel no. N. Chache /B/B Boburia / 4943 and he single handedly built a matrimonial home thereon.
4. Also that he later single handedly bought Land parcel no . N.Chache /B/B Boburia / 8705.
5. He proposed that land parcel No. N. Chache /B/B/ Boburia / 4943 be shared equally between them while and no. 8705 to remain in his name as it is registered in his name and he bought it alone .
6. The respondent filed the replying affidavit dated 3.11.23 in which she admitted that she was married to the applicant and later divorced as alleged . Also that the land parcel No. N. Chache /B/B/ Boburia / 4943 was gifted to them during their wedding by her father as he wanted his grandchildren to have a home . She said they were blessed with 3 children whom she lives with on that said land no 4943.
7. She further deponed that they jointly acquired land parcel number N.Chache /B/B /Boburia / 8705 and she produced her bank statements and loan applications . She deponed that the fact that it is registered in the names of the applicant does not make him an absolute owner as he is holding it in trust for her .
8. The respondent propose that the applicant takes land parcel number N.Chache /B/B /Boburia / 8705 which she takes land parcel number N. Chache /B/B/ Boburia /4943 as she lives thereon with their children.
9. I have carefully considered the applicants case ,the respondents case and the able submissions filed by both counsel herein. It is not disputed that the parties were a couple before they divorced in the year 2022 . It is also not disputed that land parcel N. Chache /B/B/ Boburia / 4943 is matrimonial property .
10. The issues for determination are as follows:
a. Whether the land parcel N.Chache /B/B /Boburia / 8705 is matrimonial property and if so
b. How should the said land parcel no . the land parcel N.Chache /B/B /Boburia / 8705 and N. Chache /B/B/ Boburia / 4943 be shared out between the parties.
11. Section 17 of the matrimonial properties Act provides that that:
“(1) A person may apply to a court for declaration of rights to any property that is contested between that person and a spouse.
(2) An application under subsection (1) –
(a) shall be made in accordance with such procedure as may be prescribed;
(b) may be made notwithstanding that a petition has not been filed under any law relating to matrimonial causes.”
12. On contribution to the acquisition of the said property , Section 2 of the Matrimonial Property Act, 2013 defines contribution in the following terms:
In this Act, unless the context otherwise requires—
“contribution” means monetary and non-monetary contribution and includes—
a) domestic work and management of the matrimonial home;
(b) child care;
(c) companionship;
(d) management of family business or property; and
(e) farm work.
13. Section 7 of the Matrimonial Property Act is clear in its terms that:
“Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”
14. On whether the land parcel N.Chache /B/B /Boburia / 8705 is matrimonial property, the applicant pleaded that he bought that land singlehandedly and that the it is thus not matrimonial property . The respondent ‘s case is that there property is matrimonial as she contributed towards acquiring it and that she took loans and contributed towards purchase of the same and she annexed her bank and Mpesa statements to support this contention. On re-examination the applicant said that he had no problem if the said property is shared at the ratio of 50:50 between both of them .I find that on admission of the applicant the said land Parcel no. N.Chache /B/B /Boburia / 8705 is matrimonial property .
15. On how both matrimonial properties should be shared, land parcel no . the land parcel N.Chache /B/B /Boburia / 8705 and N. Chache /B/B/ Boburia / 4943 be shared out between the parties. The applicant proposed that the properties be shared on 50 :50 basis as he developed N. Chache /B/B/ Boburia / 4943 single handedly . The respondent on her part suggested that the she takes land parcel No. N. Chache /B/B/ Boburia / 4943 where matrimonial home lies while the applicant takes land parcel No. N.Chache /B/B /Boburia / 8705. Applicant said she brought up their 3 children on that land and she is still living on the same land with them . Also that her father was looking at the future stability of his grandchildren while donating the said land to them . She said also that she solely provided for the children’s upkeep and education when they are growing up and this is not denied .
16. I am a guided by the decision of supreme court in the case of JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae)
(Petition 11 of 2020) [2023] KESC 4 (KLR) (Family) (27 January 2023) (Judgment) while dealing with the issue of contribution to matrimonial property held that :
‘’ 12. Equity was an important principle when it came to matrimonial property since what was fair as it is related to equity was not a question of the quantitative contribution by each party but rather thecontribution by any party in any form, whether direct or indirect. Any substantial contribution by a party to a marriage that led to the acquisition of matrimonial property, even though such contributionwas indirect, but had in one way or another, enabled the acquisition of such property amounted to signicant contribution. Such direct or indirect acts included:
a. Paying part of the purchase price of the matrimonial property.
b. Contributing regularly to the monthly payments in the acquisition of such property.
c. Making a substantial nancial contribution to the family expenses to enable the mortgage installments to be paid.
d. Contributing to the running of and welfare of the home and easing the burden of the spouse paying for the property.
e. Caring for children and the family at large as the other spouse worked to earn money to pay for the property.
13. While article 45(3) of the Constitution dealt with equality of the fundamental rights of spouses during
and after the dissolution of marriage, equality did not mean the re-distribution of proprietary rights at the dissolution of a marriage. Neither did the reading of that provision lead to the assumption thatspouses were automatically entitled to a 50% share by fact of being married.
14. The stated equality under article 45(3) of the Constitution meant that the courts were to ensure that at the dissolution of a marriage, each party to a marriage got a fair share of the matrimonial propertybased on their contribution. That was best done by considering the respective contribution of each party to ensure no party was unfairly denied what they deserved as well as ensuring that no party was unfairly given more than what he or she contributed.
15. In a marriage, the general assumption was that both spouses shared everything and on the face of it, both parties contributed towards the home or family in one way or another, to whichever extent,however big or small. ‘’
17. I have considered the rival submissions of the parties herein on the issue, of sharing land parcels herein and the principles laid down in the case of is JOO v MBO (supra ) I have also perused the valuation reports of both land parcels and I note that land No. N.Chache /B/B /Boburia / 8705 is valued at Ksh. 3,600,000/= while land parcel no. N. Chache /B/B/ Boburia / 4943 is valued at Kshs. 11,800,000/=. Article 45(3) of the Constitution provides for fair and equitable distribution of matrimonial property. The financial and non monetary contribution of each spouse towards acquisition and development of the same must be taken into account together with the role of each in bringing up the children , catering for their educational needs , house chores, emotional support to the spouse and family , general home management The contribution of the respondent toward making of the matrimonial home and whether the children live in the matrimonial home .
18. In this case , I have taken into account the fact that the land parcel no. N. Chache /B/B/ Boburia / 4943the was gifted to the parties by the father to respondent as a marriage gift , the sentimental attachment of the respondent to that land as a gift from her father , that applicant contributed to itby constructing the same , the fact that she is living with the children on that land and they were brought up there and it is the only home they know . It has also emerged that the respondent solely took care of the children and family and provided for their basic needs material while they were growing up the fact that the respondent took care of the children while and gave companionship to the applicant during the subsistence of the marriage . The applicant also admitted that he left the respondent in the matrimonial home when the marriage broke down . It is clear that the contribution of the respondent towards establishment of matrimonial home was immense and cannot be quantified in monetary terms . It is in the interest of justice, that I do not disturb the status quo of the possession of the house for the sake if stability of the children . I n the upshot proceed to order the sharing of the matrimonial properties as follows :
i. Land parcel No. N.Chache /B/B /Boburia / 8705 to go solely to the applicant .
ii. Land parcel No. N. Chache /B/B/ Boburia / 4943 to be registered absolutely in the name of the respondent .
iii. This being a matrimonial property each party to bear his on costs.
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