Introduction
1. This is an appeal from the judgment delivered on 14th August 2024 in Nyamira CMDIV E001 of 2023.
2. The Respondent had moved the trial court by Originating Summons brought under sections 2, 6, 7, 14 and 17 of the Matrimonial Property Act and Article 45(3) of the Constitution seeking declarations regarding two parcels of land, recovery of household goods, injunctive relief and dissolution of the marriage.
3. The trial court proceeded on the premise that a marriage existed between the parties. The court found that the marriage had irretrievably broken down and issued a decree nisi. The court awarded custody of the minor to the Respondent and ordered the Appellant to return of household goods to the Respondent. The Court further found that the two parcels of land registered in the Respondent’s name constituted matrimonial property and directed that they be sold, with the proceeds shared equally between the parties.
4. Dissatisfied with the trial court’s finding, the Appellant now appeals on grounds that:
1) The trial court erred in law and in fact by failing to properly evaluate the appellant’s evidence
2) The trial court erred by disregarding or dismissing the appellant’s evidence
3) The trial court erred by making findings not supported by the pleadings
4) The trial court erred by presuming a marriage and dissolving it in the absence of a formal ceremony or registration
5) The trial court erred in ordering sale and equal sharing of land without a proper basis
6) The trial court applied the wrong legal principles regarding division of matrimonial property.
5. I have considered the record of appeal, the evidence tendered before the trial court, the applicable statutory law and the relevant, verified jurisprudence of the Superior Courts and the written submissions filed by the Appellant. The Respondent did not file submissions in this appeal despite being afforded adequate opportunity to do so.
6. The issues that arise for determination are:
1) Whether the trial court properly applied the presumption of marriage
2) Whether the trial court properly determined the question of contribution to acquisition of property
3) Whether the order for sale and equal sharing was supported by law and evidence
4) What final orders the appellate court should issue.
1) Presumption of Marriage
7. The Respondent testified that the parties cohabited as husband and wife over several years, acquired property together, shared responsibilities and had a child together. The Appellant denied the existence of a formal marriage ceremony but did not dispute cohabitation.
8. The persuasive decision in CMK v RKN [2025] KEHC 13434 reaffirmed that prolonged cohabitation, joint responsibilities and presentation of parties as spouses may give rise to a presumption of marriage in appropriate cases.
9. Similarly, in IIK v JKK [2025] KEHC 3537, the Court confirmed that where parties live together and build a life in common, the court may, based on evidence, infer a marital relationship for the purpose of determining rights under the Matrimonial Property Act.
10. The trial court applied these principles to the evidence before it. Upon reviewing the record, I find that the trial court’s factual conclusion was supported and ought not to be disturbed.
Contribution to the Acquisition of Property
11. The Respondent produced agreements for the purchase of parcel West Mugirango/Nyamaiya/6039 from Kevin Osuke Nyabate and another excised from West Mugirango/Nyamaiya/636 from Stephen Nyangau Nyabuti. The Respondent also produced loan statements from Ardhi Sacco showing she obtained financing used for the land purchases.
12. The Appellant did not produce any documentary material rebutting that the two properties were acquired during the relationship or contradicting the Respondent’s account of contribution.
13. The persuasive decision in NKC v EWK [2024] KEHC 10440 held that contribution under section 7 includes both financial and non-financial contribution, and accepted documentary proof of financial input as sufficient evidence of contribution.
14. In FNM v JAM [2023] KEHC 26263, the Court emphasised that once contribution is established, even if not precisely quantified, the property qualifies as matrimonial property subject to equitable distribution.
15. From the evidence tendered before the trial court, I am satisfied that the court’s finding that both parties contributed to the acquisition of the properties was correct.
Mode of Distribution
16. Section 7 of the Matrimonial Property Act stipulates that matrimonial property shall be divided according to the contribution of each spouse. Equal division is permissible where the evidence demonstrates comparable contribution.
17. The trial magistrate ordered immediate sale of the two parcels of land in issue and equal division of the proceeds of sale. The Appellant submitted that this order lacked evidential foundation whereas the Respondent maintained that equal sharing is consistent with fairness, relying on her contributions and loan repayments.
18. In a persuasive decision in SJM v MK [2023] KEHC 24355, the Court emphasised that although equal sharing is not automatic, where parties have jointly undertaken acquisition during cohabitation or marriage and there is no evidence of unequal contribution, an equitable division may be achieved through practical mechanisms such as valuation, allocation or buy-out.
19. In FNM v JAM [2023] KEHC 26263, the Court adopted a flexible approach ordering valuation, followed by allocation or a buy-out, with a view to avoiding an unnecessary sale and preserving the property.
20. The evidence in the present matter shows that no valuation of the property was produced. There is no evidence quantifying the respective contributions of the parties, nor is there any material demonstrating that one party contributed disproportionately. On the material before the Court, the evidence points to broadly comparable contribution.
21. In this Court’s considered view, a practical, equitable and final remedy, consistent with the principles in the above authorities and the constitutional imperative of substantive justice under Article 159(2)(d) of the Constitution, requires that the parties first be afforded an opportunity to agree on allocation or buy-out before resorting to the more disruptive remedy of sale.
Disposition
23. Having considered the appeal, the record and the applicable law, the Court makes the following orders:
1) The decree nisi dissolving the marriage is affirmed.
2) The trial court’s orders on custody of the minor and return of household goods to the Respondent are affirmed.
3) The finding that the two parcels of land in issue constitute matrimonial property is affirmed.
4) The order directing immediate sale and equal sharing of the parcels of land is set aside and substituted with the following orders:
a) The parties shall, within forty-five (45) days, jointly obtain valuation reports for both parcels from a mutually agreed valuer at their joint cost; in default of agreement, each party shall procure a valuation from a valuer of their own choice, with the costs borne individually.
b) Upon receipt of the valuations, the parties shall, within thirty days, negotiate and agree on allocation of the parcels in accordance with their respective values, or agree on a buy-out arrangement whereby one party acquires the other’s interest.
c) In the event that the parties fail to reach agreement within the stipulated timelines, the trial court’s original order directing the sale of the parcels of land and the equal sharing of the proceeds shall automatically take effect.
d) Either party is at liberty to apply for further directions as may be necessary for the implementation of these orders.
e) Costs of the appeal shall be in the cause.
1. This is an appeal from the judgment delivered on 14th August 2024 in Nyamira CMDIV E001 of 2023.
2. The Respondent had moved the trial court by Originating Summons brought under sections 2, 6, 7, 14 and 17 of the Matrimonial Property Act and Article 45(3) of the Constitution seeking declarations regarding two parcels of land, recovery of household goods, injunctive relief and dissolution of the marriage.
3. The trial court proceeded on the premise that a marriage existed between the parties. The court found that the marriage had irretrievably broken down and issued a decree nisi. The court awarded custody of the minor to the Respondent and ordered the Appellant to return of household goods to the Respondent. The Court further found that the two parcels of land registered in the Respondent’s name constituted matrimonial property and directed that they be sold, with the proceeds shared equally between the parties.
4. Dissatisfied with the trial court’s finding, the Appellant now appeals on grounds that:
1) The trial court erred in law and in fact by failing to properly evaluate the appellant’s evidence
2) The trial court erred by disregarding or dismissing the appellant’s evidence
3) The trial court erred by making findings not supported by the pleadings
4) The trial court erred by presuming a marriage and dissolving it in the absence of a formal ceremony or registration
5) The trial court erred in ordering sale and equal sharing of land without a proper basis
6) The trial court applied the wrong legal principles regarding division of matrimonial property.
5. I have considered the record of appeal, the evidence tendered before the trial court, the applicable statutory law and the relevant, verified jurisprudence of the Superior Courts and the written submissions filed by the Appellant. The Respondent did not file submissions in this appeal despite being afforded adequate opportunity to do so.
6. The issues that arise for determination are:
1) Whether the trial court properly applied the presumption of marriage
2) Whether the trial court properly determined the question of contribution to acquisition of property
3) Whether the order for sale and equal sharing was supported by law and evidence
4) What final orders the appellate court should issue.
1) Presumption of Marriage
7. The Respondent testified that the parties cohabited as husband and wife over several years, acquired property together, shared responsibilities and had a child together. The Appellant denied the existence of a formal marriage ceremony but did not dispute cohabitation.
8. The persuasive decision in CMK v RKN [2025] KEHC 13434 reaffirmed that prolonged cohabitation, joint responsibilities and presentation of parties as spouses may give rise to a presumption of marriage in appropriate cases.
9. Similarly, in IIK v JKK [2025] KEHC 3537, the Court confirmed that where parties live together and build a life in common, the court may, based on evidence, infer a marital relationship for the purpose of determining rights under the Matrimonial Property Act.
10. The trial court applied these principles to the evidence before it. Upon reviewing the record, I find that the trial court’s factual conclusion was supported and ought not to be disturbed.
Contribution to the Acquisition of Property
11. The Respondent produced agreements for the purchase of parcel West Mugirango/Nyamaiya/6039 from Kevin Osuke Nyabate and another excised from West Mugirango/Nyamaiya/636 from Stephen Nyangau Nyabuti. The Respondent also produced loan statements from Ardhi Sacco showing she obtained financing used for the land purchases.
12. The Appellant did not produce any documentary material rebutting that the two properties were acquired during the relationship or contradicting the Respondent’s account of contribution.
13. The persuasive decision in NKC v EWK [2024] KEHC 10440 held that contribution under section 7 includes both financial and non-financial contribution, and accepted documentary proof of financial input as sufficient evidence of contribution.
14. In FNM v JAM [2023] KEHC 26263, the Court emphasised that once contribution is established, even if not precisely quantified, the property qualifies as matrimonial property subject to equitable distribution.
15. From the evidence tendered before the trial court, I am satisfied that the court’s finding that both parties contributed to the acquisition of the properties was correct.
Mode of Distribution
16. Section 7 of the Matrimonial Property Act stipulates that matrimonial property shall be divided according to the contribution of each spouse. Equal division is permissible where the evidence demonstrates comparable contribution.
17. The trial magistrate ordered immediate sale of the two parcels of land in issue and equal division of the proceeds of sale. The Appellant submitted that this order lacked evidential foundation whereas the Respondent maintained that equal sharing is consistent with fairness, relying on her contributions and loan repayments.
18. In a persuasive decision in SJM v MK [2023] KEHC 24355, the Court emphasised that although equal sharing is not automatic, where parties have jointly undertaken acquisition during cohabitation or marriage and there is no evidence of unequal contribution, an equitable division may be achieved through practical mechanisms such as valuation, allocation or buy-out.
19. In FNM v JAM [2023] KEHC 26263, the Court adopted a flexible approach ordering valuation, followed by allocation or a buy-out, with a view to avoiding an unnecessary sale and preserving the property.
20. The evidence in the present matter shows that no valuation of the property was produced. There is no evidence quantifying the respective contributions of the parties, nor is there any material demonstrating that one party contributed disproportionately. On the material before the Court, the evidence points to broadly comparable contribution.
21. In this Court’s considered view, a practical, equitable and final remedy, consistent with the principles in the above authorities and the constitutional imperative of substantive justice under Article 159(2)(d) of the Constitution, requires that the parties first be afforded an opportunity to agree on allocation or buy-out before resorting to the more disruptive remedy of sale.
Disposition
23. Having considered the appeal, the record and the applicable law, the Court makes the following orders:
1) The decree nisi dissolving the marriage is affirmed.
2) The trial court’s orders on custody of the minor and return of household goods to the Respondent are affirmed.
3) The finding that the two parcels of land in issue constitute matrimonial property is affirmed.
4) The order directing immediate sale and equal sharing of the parcels of land is set aside and substituted with the following orders:
a) The parties shall, within forty-five (45) days, jointly obtain valuation reports for both parcels from a mutually agreed valuer at their joint cost; in default of agreement, each party shall procure a valuation from a valuer of their own choice, with the costs borne individually.
b) Upon receipt of the valuations, the parties shall, within thirty days, negotiate and agree on allocation of the parcels in accordance with their respective values, or agree on a buy-out arrangement whereby one party acquires the other’s interest.
c) In the event that the parties fail to reach agreement within the stipulated timelines, the trial court’s original order directing the sale of the parcels of land and the equal sharing of the proceeds shall automatically take effect.
d) Either party is at liberty to apply for further directions as may be necessary for the implementation of these orders.
e) Costs of the appeal shall be in the cause.