Msk v Lmm

2. That the respondent, by himself, his agents and or servants and or employees and or anybody acting through him, be restrained from alienating, disposing, transferring, selling, and or dealing with the said properties in any manner prejudicial to the applicant’s interest; 3. That where the respondent has alienated, encumbered, disposed of, or dealt with any of the properties in any manner prejudicial to the applicant’s right, then he be ordered to compensate the applicant her share at market rate as at the time of the hearing of this suit; 4. That the honourable court be pleased to order that the said property, no Title Sub Division No Kwale/Diani/1xx9, awarded to the applicant for her benefit as she solely contributed towards its acquisition; 5. That should the honourable court not deem it fit to grant order no 4 above, in the alternative, be pleased to order the division and sale of the said property no Kwale/Diani/1xx9 and its proceeds shared in accordance to parties’ contribution; 6. That this honourable Court be pleased to grant such further or other relief as may be just in the circumstance. 4. In the grounds in support of the originating summons, the claimant averred that attempts to procure an amicable settlement of the matter were frustrated. She was apprehensive that the respondent was frustrating her in an effort to sell and transfer the property to a third party. Further, she stated that if the orders sought weren’t granted, she stood to lose her share of the matrimonial property, which she had solely acquired through her own efforts, and that she would thereby suffer irreparable loss and damage. 5. The claimant filed the originating summons, together with a notice of motion application dated 2nd April 2025, which this Court considered on 5th April 2025. Satisfied that there was sufficient cause to issue temporary injunctive relief, the Court granted interim orders. Specifically, the Court ordered that:- 6. 1. Pending the hearing of the motion interpartes on 12th May 2025, an order of inhibition was issued against the registration of any dealing with the proprietorship interest in Title No Kwale/Diani/1xx9; 2. Pending the hearing of the said motion interpartes, an injunction was issued restraining the respondent, his agents or servants, and or employees, or anything or anybody acting through him, from alienating, disposing, transferring, selling, and or subdividing all of that property known as Title No Kwale/Diani/1xx9. Despite being served, the respondent neither appealed nor filed a response to the claim. On 12th May 2025, this Court, being satisfied on the basis of the affidavit evidence that service was effected, confirmed the interim orders issued on 5th April 2025 by allowing the notice of motion dated 2nd April 2025, in terms of prayers 2, 3, and 4, pending the hearing and determination of the originating summons. Evidence Adduced in Court 7. Directions regarding hearing were issued on 27th May 2025. The matter was stated for hearing on 10th July 2025. 8. On 10th July 2025, the matter was heard. The hearing took place in the absence of the respondent, who was served but did not appear. I will give a summary of the evidence below. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19306/eng@2025-08-06 2

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9. Ms MSK relied on her supporting affidavit, which was deemed as her evidence in chief, and produced documents showing that her marriage had been dissolved (the two decrees of divorce), a copy of the certificate of title, and a copy of the sale agreement. 10. She testified that she is the one who bought the plot. It was her evidence that Mr. LMM lacked the means to contribute anything. She erected a 3-bedroom house on the suit property. The bedrooms are all en-suite. She also built a swimming pool. Ms MSK reckoned that her contribution was 90%, while his was 10%, comprising supervising the building contractors and acquiring the building materials. She testified that she wouldn’t mind if he got 10%. 11. The Claimant averred that she has tried to have the matter amicably resolved, but that her overture was unsuccessful. She therefore prayed that the Originating Summons be allowed as prayed. The Applicable Law 12. Kenya has a very progressive Constitution. At the heart of our constitutional order is the equality of the sexes, as well as the equality of spouses upon marriage. 13. Article 45(3) of the Constitution of Kenya 2010 provides that:“ parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage, and at the dissolution of the marriage”. 14. Sections 6 and 7 of the Matrimonial Property Act, Act No 49 of 2013, provide that:“ 6. (1) 7. For the purposes of this Act, matrimonial property means— (a) the matrimonial home or homes; (b) household goods and effects in the matrimonial home or homes; or (c) any other immovable and movable property jointly owned and acquired during the subsistence of the marriage. (2) Despite subsection (1), trust property, including property held in trust under customary law, does not form part of matrimonial property. (3) Despite subsection (1), the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights. (4) A party to an agreement made under subsection (3) may apply to the Court to set aside the agreement, and the Court may set aside the agreement if it determines that the agreement was infiuenced by fraud, coercion, or is manifestly unjust. Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19306/eng@2025-08-06 3

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shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.” 15. Section 14 of the said Act provides that: “ Where matrimonial property is acquired during marriage— (a) In the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse; and (b) In the names of the spouses jointly, there shall be a rebuttable presumption that their beneficial interests in the matrimonial property are equal.” Issues for Determination 16. I have considered the pleadings and testimony of the claimant. Although the Respondent did not appear for the hearing, I must nevertheless consider whether the claimant proved her case. In my view, it is not enough that the case was not contested; the facts and the law must support her case for the orders she seeks to be granted. Thus, I must make a reasoned decision. It would thus appear to me that I must determine: 1. Whether the property the subject matter of these proceedings is matrimonial, and if so, what the respective contributions of the parties were; 2. What orders should be issued based on my findings above; and 3. Who should bear the costs Analysis of the Law 17. I will look at each of the issues that I have identified above in turn as I make my determination. Is the Suit Property a Matrimonial Property? 18. The evidence adduced shows that the claimant purchased the said property in 2008. It was registered in the name of the respondent as a trustee. The claimant testified that she developed the property. This happened during the subsistence of the marriage. 19. In TMW versus FMC [2018] eKLR, the Court said as follows: “ Firstly, I shall determine whether the suit property falls in the category of matrimonial property. Turning to the provisions of the Matrimonial Property Act, Section 6 of the Matrimonial Property Act, 2013 defines a matrimonial property to include the matrimonial home or homes, any household goods in the home or homes, or any other property jointly owned and acquired during the subsistence of the marriage. Basically, for property to qualify as matrimonial property, it ought to have been acquired during the subsistence of the marriage between the parties unless otherwise agreed between them that such property would not form part of matrimonial property. In the instant case, the marriage between the parties herein commenced in 1993 and was officiated through Kikuyu Customary Law in 2001. The property in question was acquired in 2010, and the same was acquired during the subsistence of the marriage between the parties herein. There is also evidence that the suit property was acquired for purposes of building a family home. As a result, there is no https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19306/eng@2025-08-06 4

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doubt whatsoever that the suit property, including the Juja farm, forms part of matrimonial property as far as the parties herein are concerned.” 20. The property, having been intended as the matrimonial home of the claimant and the respondent, it is my finding that it is indeed so. What Were the Respective Contributions of the Parties? 21. It is clear from the evidence adduced, which evidence is unchallenged, that the claimant was the only spouse who made a monetary contribution. The 10% that the claimant was willing to concede, as being the respondent’s contribution, during her testimony, was in kind, through project supervision and sourcing of materials. The respondent had the subsequent benefit of the home without, in my view, further contribution. Such use, in my view, was sufficient to extinguish his very humble interest in the property. 22. The Supreme Court in Joseph Ombogi Ongentoto versus Martha Bosibori Ogentoto [2023]eKLR stated, in agreeing with what Tuiyott J (as he then was) said in UMM versus IMM [2014]eKLR, as follows:“ We find the above opinion and findings persuasive, and it is our finding that the stated equity under Article 45(3) means that the Courts are to ensure that at the dissolution of a marriage, each party to a marriage gets a fair share of the matrimonial property based on their contribution. This is best done by considering the respective contribution of each party to ensure no party is unfairly denied what they deserve, as well as ensuring that no party is unfairly given more than what they contributed.” 23. I agree wholeheartedly with the holding above. Thus, in this case, not only must I consider what each contributed monetarily, but I must also bear in mind non-monetary contributions. Having done so, I have found that, in the circumstances of this case, the Respondent must be deemed to have made no contribution. Determination and Final Orders 24. Although the respondent was served with the originating summons, he never entered an appearance nor did he file a response. 25. The evidence of MSK that she solely purchased Title No Kwale/Diani/1xx9 was not controverted. The claimant tendered evidence that was cogent and unchallenged. The property was purchased during the subsistence of the marriage. The same was registered on 15th December 2008. The marriage, on the other hand, was celebrated on 21st February 2006 at the Registrar’s Office, Mombasa, and was dissolved on 28th December 2024. 26. Under the circumstances, I find and hold that the Title No Kwale/Diani/1xx9 was acquired with the funds solely provided by the claimant. I further find and hold that the same solely belongs to her. 27. I order that the certificate of title in respect of Title No Kwale/Diani/1xx9 be rectified by the Lands Registrar, Kwale, and that a new title be issued in the name of the claimant forthwith. 28. As this is a family matter, I make no orders as to costs. 29. It is so ordered. DATED AND SIGNED THIS 6TH DAY OF AUGUST 2025. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19306/eng@2025-08-06 5

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GREGORY MUTAI JUDGE In the presence of Mr Langat, for the Claimant; No appearance for the Respondent; and Arthur – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19306/eng@2025-08-06 6

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