Lilian Wairimu Kimotho v Samuel Njogu Kimotho & another [2020] KEELC 475 (KLR)

The court applied Section 6 of the Matrimonial Property Act, 2013 and Section 2 of the same Act, which define matrimonial property to include the matrimonial home, and the definition in Section 2 of the Land Registration Act, 2012. The parcel was registered in the first defendant's name but the spouses occupied and utilized it as their family home, so it was indisputably matrimonial property. The court refused to shift focus to the subdivision acquired by the second defendant, holding the original parcel remained the entry point of all discourse.

The first defendant argued the dispute was matrimonial and belonged elsewhere under Section 17 of the Matrimonial Property Act. The court noted that no Section 17 application had been made and the pleadings did not seek dissolution of the marriage. A third party, the second defendant, claimed title as purchaser and registered proprietor. The matter therefore concerned use, occupation and title to land and fell squarely within Article 162 of the Constitution and Section 13 of the Environment and Land Court Act.

The first defendant became registered proprietor in 1991 during the marriage, attracting a rebuttable presumption under Section 14(a) of the Matrimonial Property Act that he held it in trust for the plaintiff, which was not rebutted. The plaintiff and children also had an overriding interest in the form of customary trust under Section 28(b) of the Land Registration Act, as the land was reserved for family use and children lived on it. The court applied the elements of customary trust set out by the Supreme Court in Isack M'inanga Kiebia v Isaaya Theuri M'lintari.

Section 12(1) of the Matrimonial Property Act prohibits alienation of matrimonial property during a monogamous marriage without the consent of both spouses. The subdivision resulted in conveyance of one parcel to the second defendant, taking it out of the realm of matrimonial property, so consent was required. The family meeting resolutions were unsigned and required joint action; the first defendant admitted conducting the sale in the plaintiff's absence and banking proceeds in a sole-signatory account, and the plaintiff protested at the fencing of the land.

Fraud must be strictly proven to a standard higher than balance of probabilities. The first defendant sold and subdivided without informing the plaintiff, seeking her consent or including her in the Land Control Board process, and gave no credible evidence of his claimed medical expenses. The second defendant was told the vendor had a wife who had 'left' him, which was sufficient notice, and proceeded despite a loud confrontation at the site. Desertion, absent dissolution of the marriage, could not extinguish the plaintiff's rights. The second defendant was therefore party to the fraud and not a bona fide purchaser.