Maor v Hwmr

4. She further asserted that she made a significant contribution to the acquisition, development, and maintenance of the property. M stated that she supported the respondent in his managerial role at Galu Sea Lodge, where she was responsible for administration, marketing, and guest relations, without pay. She further stated that she and the respondent paid for family expenses from their jointly owned internet businesses. Most of the funds earned were deposited into their joint Barclays Bank account, which was closed in 2015. 5. She further stated that from 2009 to 2011, she worked at Belro Investments Ltd as a property manager, managing tourist properties in Diani Beach, and used the income earned to cover family expenses. 6. M averred that the suit property was purchased in the year 2011 for Kes 10,000,000 as a family home by way of a purchase of the entire share capital of Monkey Beach Limited, which holds the title to the suit property and loan assignment via deed of assignment dated 12 August 2011. She contended that she spent Kes 319,520 on renovations and Kes 400,000 on furnishing the house. 7. She averred that after they celebrated their marriage, they lived on the suit property, and that is where all their children were born. With the respondent’s agreement, she left for further studies in Melbourne, Australia, in 2012 and completed them in 2017. Her application was supported by the respondent, who wrote a letter dated 22nd January 2012 to the Australian embassy, in which he declared that M was a co-owner of the matrimonial home and acknowledged her contribution to the family’s wealth. 8. She deponed that since the purchase of the suit property, she had consistently paid for the maintenance and management of the house, and has been the one paying the house help to clean the home to a high standard, even in her absence. 9. In response, the interested party filed a replying affidavit sworn by the respondent on 28th October 2023. He denied the claim by the claimant and stated that the interested party is a private company limited by shares that has perpetual succession. The company, in its corporate name, has the power to sue and be sued, to hold property in its own name, and further has a memorandum of articles of association that clearly defines the workings of the company and the relationship between directors and shareholders, amongst others. 10. He stated that the interested party is the registered owner of all that piece of property known as Garden Cottage, Title No Kwale/Galu Kinondo/XXX, Beach Road, Galu Beach Diani. 11. Mr. R stated that he is the founding director of the interested party and that he was in charge of its dayto-day management. He further stated that he and the claimant are co-directors and shareholders of the interested party and were also spouses from 16th December 2001 until 24th March 2023, when the marriage was dissolved. He agreed with the claimant that their marriage was blessed with three issues. 12. He averred that their respective shares and interests in the property registered in the name of the interested party are distinct and not linked to matrimonial property. In his view, the suit property was worth Kes 37,000,000. He denied that he holds any shares in the interested party in trust for the claimant as alleged. 13. Mr. R contended that he had been living in the suit property continuously and uninterrupted for the last 23 years, from as early as 2000, before he met the claimant. In 2011, he purchased shares in the interested party. Since the suit property had appreciated, and he could not afford it on his own, he approached two investors, Alec Van Wijk and Guido Pallada, Belgian and Dutch nationals, respectively to pool resources together, and on 13th August 2010, they formed a development company called Soaring Holdings Limited, where each of the 3 shareholders contributed capital for purchase and development of the property with the title duly transferred to said company. They agreed that he https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19409/eng@2025-12-16 2

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could purchase the property to be owned by the interested party from Soaring Holdings Limited at a consideration of Kes 14,000,000. 14. He averred that on 9th September 2011, he purchased 99 ordinary shares from Alec Roger Agnes Van Wijk at the consideration of Kes 1,368,180 for the benefit of the interested party and 1 ordinary share from Benjamin Nyanya Mutua at a consideration of Kes 100 in the claimant’s name for the benefit of the interested party. Mr. R contended that the claimant did not contribute any funds for the purchase of the shares, as the same were granted to her by the respondent, thus she holds the same in trust. Further, the claimant did not contribute to the share capital and was only brought on board as a director and shareholder of the interested party due to legal provisions/requirements. 15. He stated that any money towards business expenses was borne by him, and most money in their joint account emanated from his personal bank accounts in Australia, including from his Australian family trust funds. He contended that the Barclays bank account also benefited from funds from his other sources. He stated that the only contribution the claimant has ever made in the form of improvement is about Kes 500,000, which he would be willing to buy the same from her and offset the same against her shares. 16. He stated that the claimant, being a co-director, collects hefty rent of up to Kes 11,000,000 per annum from business ventures of providing short-term guest rentals via Airbnb, TripAdvisor, and other similar apps. 17. He denied that he had attempted to evict the claimant and stated that he has no intention of evicting or interfering with her access to the property. Mr. R stated that the claimant lives in Australia, where her primary residence is, and is at liberty to stay in the suit property or that of the sister company. He further contended that he has no intention of selling, leasing, mortgaging, transferring, or otherwise disposing of the suit property and/or selling, leasing, charging, transferring, and/or disposing of his shares in the interested party. Mr. R further stated that he has no intention of demolishing, removing, bringing down, wasting, damaging, or destroying the suit property, and on the contrary, only seeks to improve it as it has been his home for the last 23 years. 18. He stated that this court’s jurisdiction is limited to the respective rights of husband and wife to shares in a company, to ascertain their respective beneficial rights, and declaring the number of shares held in trust, but not to distribute properties registered in the name of a company in which both spouses are shareholders, or to order the transfer of the legal titles to property or to pass proprietary interest from one spouse to the other. 19. In conclusion, he urged the court to dismiss the summons with costs. 20. The respondent filed an affidavit and stated that Net Limited and Ethernet Limited were all struggling financially. He averred that he had to keep on loaning the said businesses money. Mr. R contended that the claimant held her single share in the interested party in trust for him as her husband and was, in fact, drawing a salary of Kes 18,377 out of which she bought a car worth Kes 600,000 in cash. He denied that there were any savings from the two companies, either by himself or the claimant. 21. He averred that the money he used acquired the interested party and other companies, Galu Beach House One Ltd, Galu Beach Villa One Ltd, and Galu Beach Villa Two Limited, where the claimant holds shares in trust for him were purchased with funds from his inheritance from Australia. That he transferred USD 170,098.03, equivalent to Kes 14,235.406.25, to Kenya to purchase the property, which initially was his rented house since 2000 when he was working for Diani Promotional Services Ltd. That, in addition to the Kes 1,000,000 transferred to the claimant to renovate the interested party, he also spent Kes 2,257,217 for renovation of the interested party. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19409/eng@2025-12-16 3

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22. He averred that, as his contribution to the well-being of the family, he leased and paid a rental house for the claimant for five years in Australia and paid for power, water, gas, and living expenses. He also paid school fees for the children, amounting to Kes 18,900,000, and also bought a car which the claimant used for 8 years. 23. He further averred that he had been a loving husband to the claimant before she migrated to Australia and a loving father who took care of his family by being there for them, cooking for them, taking them on holiday, and giving them tender care, which he will always do all his lifetime. 24. The claimant filed a further affidavit sworn on 22nd April 2023 in response to the respondent’s replying affidavit, and a further affidavit sworn on 30th November 2023, in response to the respondent’s further affidavit, in which he reiterated her position in the originating summons and the supporting affidavit. 25. She stated that to date she has not received her share of the sale of the Hot Gossip business, as the respondent retained the proceeds, as well as rental income from Galu Beach Villa One Ltd and Galu Beach Villa Two Ltd since 2018. 26. She denied the allegation that the respondent leased a house for her in Melbourne and stated that the lease agreement listed both as tenants and that expenses were shared equally between them. M deposed that the car referred to by the respondent was not bought for her, as it was purchased by the respondent in his name but used by both parties to run family errands until December 2021, when their relationship broke down. The respondent repossessed the said car and sold it on 1st May 2022, and kept the funds. 27. The originating summons was canvassed by way of viva voce evidence. I will give a précis of the evidence below. 28. The claimant, the sole witness for the claimant, adopted the contents of the originating summons, the supporting affidavit, as well as the two further affidavits as her evidence in chief. She reiterated her position and stated that she visits Diani once a year. It was her evidence that in December 2022, the respondent tried to evict her from the suit property as he didn’t want her to spend the night there, as he wanted his friend to come for a sleepover, forcing them to move to a different property. She testified that she reported the matter to the authorities. 29. It was her evidence that the bank statements produced by the respondent belong to other properties and that they paid Kes 2,500,000 to Kes 3,000,000 to Soaring Holdings Ltd and Kes 1,000,000 for other expenses. 30. She urged the court to find that she has 50% interest in the family home due to her contribution and also sought 50% share in the interested party. M also sought to prevent her eviction from the suit property and prayed that the parties be given the option of buying each other out if possible. 31. When cross-examined by Mr. Njoroge Mwangi, she stated that the suit property was registered in the name of the interested party. She contended that the fact that she had proposed that the house be sold and the proceeds divided equally among the parties did not mean that she had no sentimental attachment to the property; however, she is of the opinion that the property should not be sold. 32. M testified that she was able to fund her lifestyle, pay school fees, buy a plot and a car from her income, and that both of them contributed to the travel costs. 33. Upon being cross-examined by Ms. Aroka, she testified that they were both directors and shareholders of the interested party and that not all decisions were made through meetings. She stated that there had only been two formal meetings: the 1st one, when they were opening an account, and the second one, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19409/eng@2025-12-16 4

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when they were appointed as directors of the interested party. She conceded that the memorandum and articles of association are binding on the interested party, the directors, and shareholders. 34. It was her evidence that the respondent purchased the property on behalf of the family, as it was their family home, and she is the one who has always paid the management fees. M stated that the interested party is not a commercial business but a family home registered in a company’s name. 35. When re-examined, she reiterated her position in her affidavits and evidence and stated that they didn’t have board resolutions to determine who would occupy which room. 36. She stated that Robert Jagero was an accountant for Soaring Holdings Ltd and that he provided documentation showing expenses to her and the respondent. 37. Hugh William Murray R was the sole witness for the respondent. Mr. R reiterated the contents of his depositions. He stated that in 2011, he wasn’t a Kenyan citizen. There was a restriction on foreign ownership. It was his evidence that after the acquisition of the suit property, he carried out renovation and remodelling at a cost of Kes 2,500,000, which sum of money was from what he had inherited. He urged the court to dismiss the summons. 38. During cross-examination by Ms. Aroka and Ms. Mwasame, he reiterated his position and stated that the company has a memorandum and articles of association, which are binding, and that they had board meetings in which minutes were kept. After the purchase of the company, they had a handover meeting with the former directors, and with the claimant present, and they both signed the minutes. Both parties are signatories to the bank account of the interested party. 39. It was his evidence that he, together with the claimant and the children, lived in the suit property. The suit property was their home until the claimant left for Australia with one child in 2012. 40. He stated that the suit property was dealt with as company property and that they used to file nil returns as the company was not run as a business. The further stated that the decisions of the company were made by resolution, and that there was no requirement for VAT returns. 41. It was his evidence that whenever he visited Melbourne, he would stay with the claimant, as the house therein was rented for her and the young child. That he paid the claimant's school fees and also took care of the family expenses. 42. In re-examination, he upheld his previous position and urged the court to dismiss the summons. 43. The respondent also testified on behalf of the interested party and reiterated his evidence above. Since his evidence in support of the interested party’s case was similar to that he gave on his own account as the respondent, I will not rehash it here. 44. Upon the conclusion of the hearing, parties were directed to file written submissions. 45. The claimant, through her advocates Mwasame Koya & Company Advocates, filed written submissions dated 18th March 2025. Counsel for the claimant identified 9 issues that she submitted on. These are: whether the suit property ,the Garden Cottage, whose title is held by the interested party, is indeed matrimonial property and subject to the jurisdiction of the Family Court; whether the claimant has a claim to the suit property, based on the contribution she made to the said property’s acquisition, and development; whether the respondent’s financial claims regarding his contribution to the acquisition of the garden cottage home held in the name of the interested party are substantiated; whether inconsistencies in the respondent’s testimony affect the credibility of his claim of sole ownership of the interested party and the Garden Cottage; whether the respondent’s financial concealment or misrepresentation to inflate his contribution to the acquisition and improvement of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19409/eng@2025-12-16 5

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the Garden Cottage suit property; whether the claimant has an equal beneficial interest in interested party acquired jointly in the names of both parties; whether the respondent holds 49% shareholding of the interested party in trust for the claimant; whether the claimant is entitled to injunctive relief with respect to the suit property; and who should pay for costs of the suit. 46. Counsel relied on sections 2 and 6 of the Matrimonial Property Act and submitted that the parties got married in 2001 and therefore the claimant has a proprietary interest in Garden Cottage as it was a matrimonial property. Ms. Mwasame, learned counsel for the claimant, submitted that M had an interest in the matrimonial property as she made both monetary and non-monetary contributions. She urged that Garden Cottage was acquired and developed between 2001 and 2023, during the subsistence of the marriage. 47. She further submitted that the suit property was jointly acquired by the claimant and the respondent and that it was registered in the name of the interested party, which is company is a family company. The claimant and the respondent are shareholders and directors of the interested party. The claimant and the respondent purchased the suit property in 2011, having previously resided there since 2001, when it served as the manager’s house. At that time, the respondent was employed as the manager at Galu Sea Lodge, while the claimant assisted with administration, marketing, and guest relations in support of her then-husband’s managerial role. 48. Ms Mwasame urged that the acquisition involved the claimant and the respondent as joint purchasers, purchasing shares in the interested party, which holds the leasehold title to the Garden Cottage matrimonial home. It also involved the assignment of a loan from the vendor of the shares to the respondent and the claimant. The acquisition was for Kes 10,000,000 paid by the respondent, who was entrusted by the claimant with transferring family money to the vendor. 49. Counsel further submitted that the respondent conceded to the claimant’s contribution towards the acquisition, development, and maintenance of the suit property. It was urged that the interested party does not operate as a business entity and that it is a dormant company existing solely to hold the claimant and the respondent’s matrimonial home. The property generates no income and is not for rental, as he lives there with his children, and after marrying the claimant, it became her home too. 50. It was urged that the respondent conceded that he was neither an employee nor a designated manager of the interested party. In his divorce petition, he termed the suit property as a matrimonial home. The parties purchased the suit property during their marriage, and at the time of their divorce, they were still the sole residents of the premises, along with their children. Therefore, the suit property is a matrimonial home owned through the family company, the interested party. 51. On the second issue, counsel submitted that a spouse’s interest is determined based on their contribution to the matrimonial property. Counsel relied on section 2 of the act and submitted that the claimant made both monetary and non-monetary contributions towards the acquisition, maintenance, and development of the suit property. It was submitted that the claimant spent Kes 319,520 on renovations and Kes 400,000 on furnishings, bringing the total to Kes 719,520. Counsel submitted that the respondent conceded that the claimant held independent financial resources, distinct from him, enabling her to manage both family obligations and personal expenditures. 52. Further, the claimant juggled several jobs, including working in the family business, to support the family’s living expenses. She was employed by the family business Hot Gossip, which began as Well Connected Net, which became Invisible Net Ltd, earning Kes 20,000 gross salary. She functioned as a co-director on an equal basis with the respondent. The income earned by both parties was deposited in a joint account. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19409/eng@2025-12-16 6

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53. Between 2002 and 2005, the claimant managed a tour business, Wild Safaris in Kwale, and between 2009 and 2011 she worked as a property manager for Belro Investments Ltd, earning Kes 50,000. 54. Counsel submitted that the funds to purchase the suit property were drawn from the joint account of both the claimant and the respondent. 55. Further, the claimant provided means of transport for the family, which included three vans gifted to her by Wildside Safaris and Neil and Tracy Moore, who relocated to the United Kingdom from Kenya in 2003. She also purchased a Subaru Legacy Station Wagon in 2011, which served as a family car. 56. Ms. Mwasame urged further that M also contributed financially towards the repairs and maintenance of the home, including interior design, gardening, renovation works, and landscaping. She also paid for electricity and gas bills, insurance, and miscellaneous costs. Further, she has solely been responsible for the domestic work and management of the home, including supervising work on the home, and also the primary caretaker of their children since birth, and their custodian since 2012 when she moved with them to Australia. She had also been primarily responsible for financially supporting the children, both in Kenya and Australia. She also provided companionship and consortium to the respondent in marriage since 2001 up to the time the marriage ended. 57. On the third issue, counsel submitted that the respondent had not provided sufficient evidence of his personal financial input towards the acquisition and development of the Garden Cottage to warrant his claim of 100% ownership of the interested party and the suit property. 58. On the fourth issue, counsel submitted that the respondent attempted to build a false narrative that the suit property is Monkey Beach House and that the purchase price was Kes 14,000,000, which was rebutted during trial. 59. Regarding the fifth issue, counsel submitted that the respondent’s testimony during cross-examination contained significant inconsistencies that undermined his credibility and provided support to the claimant’s claim for 50% share in the suit property. He also failed to prove that the claimant was merely transferring funds from Galu Beach House One Limited on his behalf via PayPal, and that inheritance funds were available to purchase the suit property. It was submitted that the respondent’s inconsistent testimony and deliberate misrepresentation of company records further highlight the lack of credibility and the need for the court to look beyond the corporate structures in determining the party’s rightful interests in the properties. 60. On the sixth issue, counsel submitted that the claimant is entitled to an equal share of the matrimonial property acquired during the subsistence of the marriage. Counsel relied on section 14 (b) of the Act and submitted that the suit property was jointly acquired by the parties in their names, as evidenced by the fact that they both signed the transaction documents used in the acquisition of the interested party, whose shares they both hold. Further, there was a presumption that the parties had equal beneficial interests in the suit property and the interested party. The claimant had established that the suit property is the matrimonial home. 61. On the 7th issue, counsel relied on Section 14(b) of the Act and submitted that the respondent has not rebutted the claimant’s claim for 50% entitlement in the shareholding of the interested party and in the value of the Garden Cottage matrimonial home. 62. On the 8th issue, counsel submitted that the claimant and their children have known that the suit property was their home and that it was the parties' expressed intention to leave the home to their children until the respondent decided to evict and disenfranchise the claimant’s rights. That being so, it was in the interest of justice that injunctive orders were issued restraining the respondent from evicting https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19409/eng@2025-12-16 7

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them or denying the claimant access to the suit property. That the respondent should be restrained from selling, disposing of the suit property, or shares of the family company. 63. On the question of costs, it was submitted that the respondent should pay costs to the claimant, as it is his misconduct that necessitated the filing of this suit. 64. In conclusion, Ms. Mwasame urged the court to allow the Originating Summons as prayed. 65. The respondent, through his advocates Njoroge Mwangi & Company Advocates, filed written submissions dated 29th April 2025. Counsel reiterated the respondent’s position. Mr. Njoroge Mwangi relied on Sections 2 and 6 of the Act and submitted that the suit property is not a matrimonial property as it is registered in the name of the interested party, with the respondent holding 99 shares and claimant 1, in trust for him. The interested party has not been utilized jointly by the parties for over a decade since the applicant moved to Australia in 2012, and thus the claimant cannot claim the same as being the matrimonial property/home. That by the time the respondent bought the interested party, the claimant was already an Australian citizen and as such a foreigner. 66. Counsel relied on Article 40 of the Constitution of Kenya, 2010, and section 7 of the Act and submitted that matrimonial property vests in any spouse according to their contribution. Further, the acquisition of the suit property was 100% done by the respondent, as the claimant did not contribute to the payment. The claimant did not show any non-monetary contribution, except for the spousal relationship and child care, which may not require money. That the claimant has not adduced any proof of earnings of any significant amount able to fund any substantial developments of the family or the interested party. 67. Mr. Njoroge Mwangi submitted that the claimant was working and therefore not a housewife, nor an enabler of the respondent. The respondent gave as much as he got from the claimant in terms of companionship and provided much more in terms of domestic work and management of the matrimonial home, whereby he paid all the management fees, child care, and school fees, as well as other children's expenses, which amounts to a non-monetary contribution. 68. On the injunction, counsel submitted that the claimant has not established the three principles of issuing an injunctive order and urged the court to dismiss the same. 69. The interested party, on the other hand, through its advocates, Aroka & Company Advocates, filed written submissions dated 5th May,2025. Ms Aroka, learned counsel for the interested party submitted on five issues for determination namely; which court has the primary role and jurisdiction to hear and determine disputes between directors regarding their shareholding and/or assets or accounts held in the name of a company; whether exceptional circumstances exist to warrant the suit property that is registered in a company’s name to be classified as matrimonial property; whether the claimant had proved contribution to the purchase/acquisition and/or development of the suit property; whether the claimant is entitled to the orders sought and who shall bear the costs of the suit. 70. Counsel relied on Section 107,109 and 119 of the Evidence Act and submitted that the claimant failed to discharge the legal burden of proof in support of her suit and therefore it ought to be dismissed with costs. 71. On the 1st issue, counsel submitted that the interested party, a private company limited by shares, is a separate legal entity and therefore the relationship between the claimant and the respondent is that of co-directors and shareholders, not as former spouses. Therefore, the parties herein are bound by the provisions of company law with no exception. That a property belonging to a company can only be https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19409/eng@2025-12-16 8

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distributed under the Companies Act and not the Matrimonial Properties Act, and therefore, the court with jurisdiction to hear this matter is the commercial division of the High Court of Kenya. 72. On the 2nd issue, counsel relied on sections 6 and 14 of the Matrimonial Property Act. She submitted that the claim that the respondent was holding shares in the interested party in trust for the claimant does not hold. Thus, the suit property is not a matrimonial property. 73. Counsel submitted that there was no resolution by the board of directors of the interested party to warrant the property that was acquired through the company to be a matrimonial property. 74. On the third issue, counsel submitted that any claim in matrimonial property is pegged on one’s contribution and that the claimant did not prove any direct and or indirect contribution towards the acquisition/maintenance and or development of the suit property. Ms. Aroka contended that the claimant only brought Kes 500,000 into the business, which the respondent is ready and willing to buy the same from the claimant and offset the same against her shares. 75. On the fourth issue, counsel submitted that the claimant had not tendered any proof that the respondent has an intention or interest in selling or assigning the property to any other person. 76. On the 5th issue, counsel submitted that costs follow events and therefore the costs of this suit should be borne by the claimant as she had not proved her case to the required standards. 77. In conclusion, counsel urged the court to be pleased to dismiss the originating summons filed by the claimant with costs. 78. I have considered the submissions of the parties. In my view, the issues in the matter are the following: whether this Court has jurisdiction, sitting as the Family Court, to hear and determine this matter; whether the subject matter is a matrimonial property; whether the respondent owns shares in the interested party in trust for the claimant, and what orders should be issued by the Court. 79. It is common ground that the claimant and the respondent got married in 2003. They have 3 issues together whose names I have already given. The property in dispute was acquired during coverture and has been used by the parties as their primary dwelling house whenever they are in Kenya. The parties disagree on who between them should occupy the house and whether the fact that the suit property is registered in a limited liability company in which both parties have shares ousts this Court’s jurisdiction. 80. Section 2 of the Matrimonial Properties Act defines matrimonial homes in the following terms: “ matrimonial home" means any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property.” 81. Section 6 of the said Act defines what “matrimonial property” is. It states that: “ (1) 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19409/eng@2025-12-16 9

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(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 influenced by fraud, coercion, or is manifestly unjust.” 82. It would appear to me that a property, for it to be deemed as matrimonial property, must be owned or leased by one or both spouses, be occupied or used as a matrimonial home, and have been acquired during the subsistence of the marriage. Is this the case herein? Can a property that has been registered in the name of a company be a matrimonial home? 83. There is no contestation that Title No. Kwale/Galu Kinondo/XXX, situated on Beach Road in Galu Beach, is registered in the name of a company called Monkey Beach Ltd. 99 shares in the interested party are owned by the respondent, while the claimant owns 1 share. 84. From the evidence adduced, Monkey Beach Ltd does not appear to be engaged in any business. Rather, it is a vehicle used by the parties to own the contested property. The property was used primarily as a home for the claimant and the respondent. The court notes that the interested party did not operate the way limited liability companies do, nor did it conduct any business for profit. This is borne out by the fact that its tax returns were “nil returns.” Certainly, there were no annual general meetings, nor meetings of any sort save those convened during the purchase of the suit property. Its operations were, for the most part, informal. 85. There can be no doubt that if the interested party is a bona fide company, then the Family Court wouldn’t have jurisdiction. In my view, issues regarding the control and operations of companies are within the province of the Commercial Court. The question then is whether Monkey Beach Ltd was a bona fide company or merely an alter ego of the respondent used by him to control the family home. In the event it was the latter, this Court has the necessary jurisdiction to hear and determine the matter. 86. The claimant seeks, in essence, for this court to pierce the corporate veil, to unravel the real status of the company, in support of her case that the interested party was an alter ego of the respondent. Should the court pierce the corporate veil for this purpose? 87. In my view, it should. The company was incorporated during coverture. I am persuaded that the company was a special-purpose vehicle created to hold the property. During the subsistence of the marriage, the parties lived there, whenever they were in Kenya. Both parties treated the company as a façade, as evidenced by the submissions of the respondent, wherein it is extensively submitted that the respondent bought the interested party or the interested property. That, in my view, shows that the interested party was merely a vehicle through which the property was purchased. 88. In Prest v Petrodel Resources Limited and others, [2013] UKSC 34, the Supreme Court of the United Kingdom held that where a spouse uses a company to hold property for personal benefit, the courts can pierce the corporate veil and treat the property as a matrimonial property. The key test was whether the company was a facade meant to defeat a spouse’s claim or legal rights. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19409/eng@2025-12-16 10

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89. In the said decision, Lord Sumption, in his leading judgment, stated as follows: “ 52. Whether assets legally vested in a company are beneficially owned by its controller is a highly fact-specific issue. It is not possible to give general guidance going beyond the ordinary principles and presumptions of equity, especially those relating to gifts and resulting trusts. But I venture to suggest, however tentatively, that in the case of the matrimonial home, the facts are quite likely to justify the inference that the property was held on trust for a spouse who owned and controlled the company. In many, perhaps most cases, the occupation of the company’s property as the matrimonial home of its controller will not be easily justified in the company’s interest, especially if it is gratuitous. The intention will normally be that the spouse in control of the company intends to retain a degree of control over the matrimonial home, which is not consistent with the company’s beneficial ownership. Of course, structures can be devised which give a different impression, and some of them will be entirely genuine. But where, say, the terms of acquisition and occupation of the matrimonial home are arranged between the husband in his personal capacity and the husband in his capacity as the sole effective agent of the company (or someone else acting at his direction), judges exercising family jurisdiction are entitled to be sceptical about whether the terms of occupation are really what they are said to be, or are simply a sham to conceal the reality of the husband’s beneficial ownership.” 90. The High Court made a similar decision in MNK v MRM [2017] e KLR where it was held that if a company is what may reasonably be called an alter ego of a spouse, and the property is used as a matrimonial home or purchased using marital funds, it may be subject to division under matrimonial property laws. 91. Similarly, in GKW v RNK [2025] KECA 1475 (KLR), the Court of Appeal upheld the decision made by the High Court to allow the amendments of pleadings to include limited liability companies as matrimonial properties. The court held that: “ Having considered the ruling of the trial court and the submissions of the parties, we find no basis for interfering with the trial court’s exercise of discretion. The position of our law, as the authorities we have noted above and those relied on by the trial court illustrate, is that amendments may be allowed to bring before the court the real issue or controversy between the parties; that mere delay is not a sufficient basis for denying an application for amendment; and that limited liability companies, as was sought in this case, can be joined as parties in a suit relating to matrimonial properties between spouses- see Muthembwa v Muthembwa [2002] 1 EA 186; PWK v JKG [2015] eKLR and Lacheka Lubricants Ltd & Another v Chanandin & 4 Others [2023] KECA 1359. In this latter case, this Court stated: “In PWK v JKG (supra) this Court …departed from the previous interpretation of Muthembwa v Muthembwa (supra) and the holding of the court in SNK v MNK (supra) that a trial court has no jurisdiction under section 17 of the MWP Act to distribute properties registered in the name of the company in which the spouses are the shareholders, due to the company’s separate legal personality. This is how the court reasoned: “With respect, we are not ourselves persuaded that Muthembwa v Muthembwa was to exactly that effect. Quite the opposite. The court there held, and we respectfully agree, that where https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19409/eng@2025-12-16 11

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the property of the company had been mixed with the matrimonial property, Section 17 allowed the court to deal with the parties’ respective interests in the company as injustice might otherwise result, which, to our way of thinking, is a repudiation, in appropriate cases, of the sometimes-unhelpful distinction between the parties as spouses as opposed to shareholders for purposes of section 17 proceedings. The Court in Muthembwa v Muthembwa found that section 17 of the MWPA did, in fact, allow a court to deal with the parties’ respective interests in a company in which they are shareholders. We agree with that court’s conclusion.” 92. I am persuaded that in the context of this matter, this Court is clothed with the necessary jurisdiction. Monkey Beach Ltd was merely a façade through which the parties owned the matrimonial home. This court must, in this limited way, look at the intent and not the form and make due conclusion. 93. Since the said property is matrimonial, the court must establish in what proportions the parties herein contributed towards its acquisition, development, and maintenance. 94. Having found that the property was held in the interested party, a façade, and was used by the disputants herein as a matrimonial home, I must consider whether it should be divided as proposed by the claimant. The first port of call is Section 7 of the Matrimonial Property Act, which states 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.” 95. What amounts to “contribution” is defined in section 2 of the Act as being: “ "contribution" means monetary and non-monetary contribution and includes— 96. (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;” In JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae) [2023] KESC 4 (KLR), the Supreme Court of Kenya held that: “ 82. While therefore reiterating the finding in Echaria, we also find that article 45(3) acts as a means of providing for equality as at the time of dissolution of marriage, but such equality can only mean that each party is entitled to their fair share of matrimonial property and no more. Nowhere in the Constitution do we find any suggestion that a marriage between parties automatically results in common ownership or co-ownership of property (hence vesting of property rights), and Article 45(3) was not designed for the purpose of enabling the court to pass property rights from one spouse to another by fact of marriage only. 83. The guiding principle, again, should be that apportionment and division of matrimonial property may only be done where parties fulfill their obligation https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19409/eng@2025-12-16 12

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of proving what they are entitled to by way of contribution. We thus approve the finding in Echaria that:“As the case law currently shows, the status of the marriage does not solely entitle a spouse to a beneficial interest in the property registered in the name of the other, nor is the performance of domestic duties. Even the fact that the wife was economical in spending on housekeeping will not do…” 97. It is a common ground that the claimant had 3 children with the respondent and was the main caregiver of the children during their formative years. She performed domestic work and provided a comfortable home for the respondent, which allowed him to thrive. Even as she did so, the claimant was in gainful employment and earned money, which, though modest, contributed to the family's well-being and paid for the utilities. I am satisfied that the claimant contributed towards the renovation of the house, as evidenced by the analysis done by Robert Jagero. This is conceded in the replying affidavit of the respondent (as the interested party), sworn on 28th October 2023. 98. In addition to the foregoing, she ran a family business called Hot Gossip, whose proceeds went into the acquisition of the property. Taken together, her contribution was substantial, not as puny as the respondent sought to show. 99. Having found that the claimant contributed to the acquisition of the suit property and of its development and improvement, what share is she entitled to? In P N N v Z W N [2017] KECA 753 (KLR), it was held by Kiage as follows: “ I think that it would be surreal to suppose that the Constitution somehow converts the state of coverture into some sort of laissez-passer, a passport to fifty percent wealth regardless of what one does in that marriage. I cannot think of a more pernicious doctrine designed to convert otherwise honest people into gold-digging, sponsor-seeking, pleasure-loving, and divorce-hoping brides and, alas, grooms. Industry, economy, effort, frugality, investment, and all those principles that lead spouses to work together to improve the family fortunes stand in peril of abandonment were we to say the Constitution gives automatic half-share to a spouse, whether or not he or she earns it. I do not think that getting married gives a spouse a free to cash cheque bearing the words “50 per cent.” Thus it is that the Constitution, thankfully, does not say equal rights “including half of the property.” And it is no accident that when Parliament enacted the Matrimonial Property Act, 2013, it knew better than to simply declare that property shall be shared on a 50:50 basis. Rather, if set out in elaborate manner the principle that division of matrimonial property between spouses shall be based on their respective contribution to acquisition.” 100. The court cannot establish with exactitude what each party contributed. The documentary evidence adduced shows that the funds used to purchase the property came from a joint account. The claimant was able to show that she had independent income and made contributions. The respondent, on the other hand, stated that the money originally came from his inheritance. Given the disputed fact, I must consider what is fair and just in the circumstances of this case. 101. I do so in reliance on the case of PNE v PNE [2007] eKLR, where the Court of Appeal held that: “ However, in cases where each spouse has made a substantial but unascertainable contribution, it may be equitable to apply the maxim “Equality is equity” while heeding the caution by Lord Pearson in Gissing vs. Gissing (supra) at page 788 paragraph c that: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19409/eng@2025-12-16 13

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“No doubt it is reasonable to apply the maxim in a case where there has been very substantial contributions (otherwise than by way of advancement) by one spouse to the purchase of property in the name of the other spouse, but the portion borne by the contributions to the total purchase price or cost is difficult to fix. But if it is plain that the contributing spouse has contributed about one-quarter, I do not think it is helpful or right for the court to feel obliged to award either one-half or nothing.” 102. In the circumstances, I find and hold that the claimant has a cumulative 50% share in the matrimonial home registered in the name of the interested party. 103. I further find and hold that the respondent holds 49% share in Monkey Beach Ltd in trust for the claimant. 104. The court notes that the relationship between the parties has irretrievably broken down and that it may not be possible for them to share the suit property. In the circumstances, I order that the property be sold within 90 days of the date of this judgment, unless the parties agree who among them will buy the other one out. 105. This is a dispute between former spouses over a matrimonial property. Whereas it is the case that costs are at the discretion of the Court, I do not think that costs will be helpful in this matter. Each party will therefore bear his/her/their own costs. 106. It is so ordered. DATED AND SIGNED IN MOMBASA THIS 16TH DAY OF DECEMBER 2025. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of: Ms. Mwasame, for the Claimant; Mr. Njoroge Mwangi, for the Respondent; Ms. Aroka, for the Interested Party; and Mr. Zachary – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19409/eng@2025-12-16 14

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