Mtwm v Kmw

2. The same is opposed by the respondent. Applicant’s Case 3. The Applicant in her supporting affidavit avers that she and the Respondent were married under Kikuyu customary marriage on or about 4th March 2017. The same was not registered. 4. The Applicant further states that the marriage irretrievably broke down on 28th October 2021 leading to their separation. This caused her to move out of the matrimonial home while the Respondent emigrated to Canada and that the marriage was then dissolved as per the kikuyu traditions. 5. The Applicant further avers that during the subsistence of the marriage, she purchased and amalgamated two adjourning properties Title no. Dagoretti/Mutuini/XXXX and Dagoretti/ Mutuini/XXXX and that the respondent did not contribute to the purchase of the properties. 6. The applicant went further and attached the M-pesa statements as annexures to show her contribution to the purchase of the properties. Respondent’s Case 7. The Respondent filed a Replying affidavit dated 29th June 2023 in opposition to then Originating summons. He also filed a witness statement dated the same day. 8. The Respondent states that he and the Applicant were married under the kikuyu customary laws and that the Applicant moved out of their matrimonial home on 28th October 2021. 9. He further states in his witness statement that they jointly acquired plot No. Dagoretti/Mutuini/ XXXX but acquiesces to the fact that he never contributed to the acquisition of plot No. Dagoretti/ Mutuini/XXXX. 10. The respondent filed submissions dated 21st May 2025 and Supplementary submissions dated 23rd May 2025. 11. In his submissions the Respondent argues that this court lacks jurisdiction to entertain the summons as drawn as the subordinate court in Milimani Divorce Cause No. E1040 of 2023 held that there was no subsisting marriage between the Applicant and the Respondent to warrant a divorce. The court held that since the marriage was not registered it was void ab initio. No appeal has been filed in respect of the judgment. Determination 12. The Respondent herein raises a jurisdictional issue. Once an issue on jurisdiction arises the court ought to deal with it in the first instance as it is trite law that once a court finds itself without jurisdiction, it must down its tools as without it, all it does amounts to nothing. Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited (1989) IKLR: - “Jurisdiction is everything. Without it, a court has no powers to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of the proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion it is without jurisdiction…………where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before Judgement is given”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16436/eng@2025-10-07 2

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13. The parties herein proceeded with the divorce cause in Milimani Divorce Cause No. E1040 of 2023 whereby the court held that there was no subsisting statutory marriage between the parties since the marriage was not registered. 14. The matter before this court is not an appeal as to the decision of the subordinate court but a matter that is before this court pursuant to the provisions of the Matrimonial Property Act, Cap 152 that seeks to distribute the property of the parties. The parties herein co-habited for a long period and acquired property together as evidenced by the Annexed exhibit marked MTW5 Title deed No. Dagoretti/ Mutuini/XXXX in which the property is registered in both the Applicant’s and the Respondent’s names. The Respondent has acquiesced to the fact that he did not contribute to the acquisition of Property Number Dagoretti/Mutuini/XXXX which leaves this court to only deal with the contested property. By relying on the Matrimonial Property Act does this naturally strip this court of the Jurisdiction to distribute the property? 15. In MNK vs PO (Petition No. 9 of 2021), the Supreme Court of Kenya at paragraph 84 cited an excerpt from the decision in Walker v Hall [1984] FLR 126 where Lord Lawton observed as follows: “ During the past two decades the courts have had to consider on a number of occasions the division of property between men and women living together without being married....... courts have been able to make an equitable division of property between spouses when a marriage breaks down and a decree of divorce is pronounced. No such jurisdiction exists when the cohabitees are unmarried. When such a relationship comes to an end, just as with many divorced couples, there are likely to be disputes about the distribution of shared property. How are such disputes to be decided? They cannot be decided in the same way as similar disputes are decided when there has been a divorce……………... They have to be decided in accordance with the law relating to property... There is no special law relating to property shared by cohabitees any more than there is any special law relating to property used in common by partners or members of a club. The principles of law to be applied are clear, though sometimes their application to particular facts are difficult. In circumstances such as arose in this case the appropriate law is that of resulting trusts. If there is a resulting trust (and there was one in this case) the beneficiaries acquire by operation of law interests in the trust property. An interest in property which is the consequence of a legal process must be identifiable. It must be more than expectations which at some later date require to be 16. Nevertheless, the learned Judges of the Supreme Court went further in paragraphs 85 and 87 to state that: “ (85) In England, courts have long recognized that common intention of the parties at the time of purchase is sufficient to give rise to a constructive trust, which can be inferred from conduct other than making financial contributions to cohabitees. … (87) 17. We however note that even though constructive trust is premised on Section 38 of the Land Act, 2012 the same has not been applied in solving disputes relating to cohabitees.” Having observed the above, the Supreme Court then went ahead to state in paragraphs 90 and 93 of the same decision that the common intention of parties at the time of purchase of property gave rise to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16436/eng@2025-10-07 3

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a constructive trust between them which common intention once established, it follows that the court ought to proceed and quantify the beneficial interest to the parties. 18. Flowing from the highlighted excerpts from the Supreme Court’s decision MNK vs PO (Petition No. 9 of 2021) (supra) an analysis of the same reveals that this court is clothed with the jurisdiction in this instance to establish a common intention formed by the parties at the time of purchasing the properties and ought to proceed and quantify the beneficial interest to the parties. The subject matter before this court is not whether the parties were married but the nature of the party’s proprietary rights. 19. Lord Justice Browne in Eves v Eves [1975] 1 WLR 1338 quoted with approval the decision in Cooke vs. Heard [1972] WLR 518 where it was held; "... whenever two parties by their joint efiorts acquire property to be used for their joint benefit, the courts may impose or impute a constructive or resulting trust. The legal owner is bound to hold the property in trust for them both. This trust does not need any writing. It can be enforced by an order for sale, but in a proper case the sale can be postponed indefinitely. It applies to husband and wife, to engaged couples, and to man and mistress, and maybe to other relationships too.” 20. It is my finding that the common intention can be inferred from the appellant and respondent’s conduct during the existence of their relationship thereby creating a constructive trust. 21. In his sworn affidavit, the Respondent has acquiesced to the fact that he did not contribute to the acquisition of property Number Dagoretti/Mutuini/XXXX and is therefore not contesting its ownership. 22. The acquisition of Property Number Dagoretti/Mutuini/XXXX, which is registered in the joint names of the parties, is however contested. The court will therefore proceed to determine the proprietary rights to the Property Number Dagoretti/Mutuini/XXXX. 23. The applicant and the respondent jointly contributed to the acquisition and the development of the property Number Dagoretti/ Mutuini/XXXX and the same is registered jointly in the names of both the Applicant and the Respondent. There wasa common intention of the parties at the time of purchase of the suit property to have a beneficial interest to the suit property and to give rise to a constructive trust. The applicant cannot therefore unjustly enrich herself with a property meant to be of benefit to her and the respondent. 24. In conclusion, I find that the originating summons dated 20th April 2023 partially succeeds and I make the following orders: 1. That Property Number Dagoretti/Muituini/XXX is distributed solely to the Applicant, MTWM. 2. That Property Number Dagoretti/Muituini/XXXX be valued, sold and the parties herein to share the proceeds of the sale on a ratio of 50:50. Parties to share the cost of valuation equally. 3. In the alternative, and by consent of the parties, any party wishing to keep the property Number Dagoretti/ Mutuini/XXXX can buy the other party out by paying that party the value of the property. 4. No orders as to costs. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF OCTOBER, 2025. E.K OGOLLA https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16436/eng@2025-10-07 4

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JUDGE In the presence of: Ms Mulongo holding brief Karanja ...for the Applicant Gisiele....... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16436/eng@2025-10-07 5

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