Mnm v Eim

vide a Replying Affidavit dated 29th September 2025. This application was, however, never heard. By consent of the parties, it was deferred pending the hearing and determination of the Originating Summons. 4. The matter proceeded for hearing. Both parties appeared before the Court, tendered their respective evidence, and subsequently filed written submissions. Petitioner’s Case 5. It is the Petitioner’s case that during the subsistence of the marriage, she and the Respondent acquired several properties through joint efforts, both financial and non-financial. She contends that although most of the properties were registered solely in the Respondent’s name, this was on the mutual understanding that he would hold the same in trust for her. 6. The Petitioner states that she is a businesswoman operating a beauty shop, while the Respondent is an accountant by profession. She asserts that she nurtured the family, managed the matrimonial home, and ran her business to support the Respondent in pursuing and advancing his career. 7. The Petitioner further contends that she regularly surrendered the proceeds of her business to the Respondent to assist him in servicing loans and meeting family obligations. By way of example, she cited the Mwihoko (Githurai) plot, purchased at approximately Kshs. 1.3 million, to which she claims to have contributed Kshs. 950,000/=. 8. She elaborated that she single handedly managed the matrimonial home after the Respondent allegedly withdrew financial support, and as a result of financial constraints, the parties’ two children were unable to attend college. She explained that she subsequently incorporated the children, who are currently unemployed, into her beauty products business. 9. In her witness statement dated 15th May 2024, as well as in her list of documents and supplementary list of documents dated 17th November 2023 and 15th May 2024 respectively, the Petitioner detailed how the Respondent negatively affected her beauty business and how she invested substantial time and resources in the tea farming project on LR No. LOC. 8/Matharite/1XXX. 10. The petitioner contends that all the assets and property of the marriage are matrimonial property and should be distributed at the ratio of 50:50 between the parties. Respondent’s Case 11. The Respondent disputes the Petitioner’s claims and maintains that he solely acquired the contested properties through his own resources. He argues that Article 45(3) of the Constitution does not entitle a court to vary existing proprietary rights merely because parties were married. 12. The Respondent contends that to award property to a spouse who allegedly made no contribution would amount to an unjust deprivation of property, contrary to Article 40(1) and (2) of the Constitution, which guarantees the right to property. 13. In support of his position, the Respondent relied on the authority of PNN v ZWN, Civil Appeal No. 128 of 2014 [2017] eKLR, where the Court of Appeal emphasized that division of matrimonial property must be based on proven contribution. 14. The Respondent further argues that the Petitioner currently resides in the matrimonial home built and owned by him, owns a store in Kahawa West, and that it has been over two (2) years since the dissolution of the marriage without her seeking maintenance, thereby negating any claim for support. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/54/eng@2026-01-15 2

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15. The properties placed before the Court for determination are as follows: a. Jua Kali (Ngei II Kugeria – Kahawa West Phase III) Plot No. 1XX, registered in the Respondent’s name, comprising four fioors with twelve (12) residential apartments generating approximately Kshs. 150,000 per month in rental income. b. Jua Kali (Ngei II Kugeria – Kahawa West Phase III) Plot No. 2XX, registered in the Respondent’s name, comprising six fioors with twelve (12) two-bedroom apartments, currently in the Respondent’s possession. c. LOC.8 /Matharite /1XXX (Murang’a), registered in the Respondent’s name, being a tea farm, currently in the Applicant’s possession. d. Mwihoko Githurai Plot, jointly registered, being vacant land, currently in the Respondent’s possession. e. Plots Nos. 5XX and 5XX B/H, Mavoko, registered in the Respondent’s name, being vacant land, currently in the Respondent’s possession. f. Stores Nos. X and X, Kahawa West Market, registered in the Respondent’s name, housing a beauty shop, currently in the Applicant’s possession. g. Stores Nos. 7X and 8X, Kahawa West Market, registered in the Respondent’s name, currently occupied by the parties’ two adult children. h. Motor Vehicles Suzuki Vitara KBP XXXP and Toyota Aqua KCT XXXV, registered in the Respondent’s name, currently in his possession. i. Kahawa West House No. XXX, registered in the Respondent’s name and serving as the matrimonial home, currently occupied by the Applicant. Determination 16. Having considered the pleadings, affidavits, evidence, and submissions, the Court frames the following issues for determination: a. The nature and extent of each party’s contribution. b. Whether the listed properties constitute matrimonial property. c. The appropriate mode of division of the matrimonial property. d. Whether the Petitioner is entitled to maintenance. 17. Article 45(3) of the Constitution of Kenya, guarantees parties to a marriage equal rights at the time of marriage, during the marriage, and at the dissolution of the marriage. It was intended to promote fairness in matrimonial property distribution at the point of dissolution. Equality in that context meant equitable entitlement based on demonstrated contribution, not automatic entitlement to half of the property. Marriage alone did not confer co-ownership or vest proprietary rights. 18. ‘The guiding principle in matrimonial property division was contribution. A party must prove contribution monetary or non-monetary, to be entitled to a share.’ JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae) [2023] KESC 4 (KLR) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/54/eng@2026-01-15 3

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19. Contribution may take many forms, including but not limited to financial input, payment of loans or mortgages, management of household affairs, child care, companionship, and general support that enables the other spouse to acquire property. 20. Article 45(3) underscores equality as a composite of fairness and equity. While spouses are entitled to equal rights upon dissolution of marriage, their contributions toward the acquisition of matrimonial property may differ in nature and magnitude. 21. In some marriages, one spouse may contribute substantially through financial means, while the other contributes indirectly through domestic responsibilities, child care, and emotional support. 22. Equity in matrimonial property disputes emphasizes fairness rather than rigid quantitative assessment. Contributions may include partial payment of the purchase price, regular payments toward acquisition, financial support for family expenses that enables loan repayment, and domestic work that reduces the financial burden on the earning spouse. 23. Article 45(3) secures equality in fundamental rights but does not justify the reallocation of property at dissolution. It does not create an automatic entitlement to fifty percent of matrimonial property solely by virtue of marriage. 24. Equality under article 45(3) therefore requires that each spouse receives a fair and just share commensurate with their contribution. Courts must carefully weigh the evidence to prevent injustice. 25. Section 14 of the Matrimonial Property Act establishes key presumptions for property acquired during marriage: if in one spouse's name, it's presumed held in trust for the other; if in joint names, beneficial interests are presumed equal. This is of course applied alongside the principles of Article 45 (3) of the Constitution. 26. Upon dissolution of marriage, courts are obligated to divide matrimonial property fairly and equitably under article 45(3) of the Constitution. 27. In the present case, the respondent adduced evidence of financial contribution, including loans and financial support toward the acquisition of the matrimonial home, properties and rental units. 28. The Court finds that the parties were married for a long duration of 34 years, during which time the applicant made substantial non-financial contributions, including managing the matrimonial home, raising the children, and supporting the Respondent’s career, as well as direct financial contributions through her business. 29. The evidence placed before Court demonstrates that although most properties are registered in the Respondent’s name, they were acquired during the subsistence of the marriage and therefore fall within the definition of matrimonial property under section 6 of the Matrimonial Property Act. 30. The Court is satisfied that the Petitioner proved contribution, both direct and indirect, and that equity demands a fair and just distribution, not necessarily an equal one, but one that refiects the parties’ respective contributions. 31. Consequently, the Court finds and holds that the Petitioner and Respondent shall share all the matrimonial properties as provided hereunder, save where otherwise specified: a. The proceeds from the tea farm on LR No. LOC. 8/Matharite/1XXX shall be shared at 60:40 in favour of the respondent, and the applicant’s share shall be availed to the applicant as from the date of dissolution of the marriage, i.e 17/11/2023. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/54/eng@2026-01-15 4

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b. The Mwihoko Githurai plot, being jointly registered, shall be shared equally at 50% each. c. The Kahawa West matrimonial home, House No. XXX shall be divided and shared at the ratio of 60:40 in favor of the respondent and shall be occupied by the applicant until it is sold to be shared in the said ratio of 60:40. d. Rental income from Plots Nos. 1XX and 2XX, Kahawa West, shall be shared at 70:30 in favor of the respondent. e. The motor vehicles shall remain exclusively with the Respondent. f. The Kahawa West market stores Nos. X, X, 7X, and 8X shall be co-owned by both parties, and proceeds shall be shared at 50:50, taking into account the Petitioner’s business and the children’s occupation. g. The plots nos. 5XX and 5XX B/H situated in Mavoko shall remain exclusively with the respondent. h. Any other matrimonial assets which shall be ascertained after these proceedings, or which may have been left out of these proceedings, shall be shared at the ratio of 50:50 by the parties. 32. In light of the distribution above and the lapse of time since dissolution of the marriage, the Court declines to grant a separate order for spousal maintenance. 33. In conclusion, the Court finds that the applicant has established her claim to matrimonial property based on both financial and non-financial contributions. The division ordered herein refiects the principles of equity, fairness, and the law governing matrimonial property in Kenya. 34. In the end, the orders are issued as follows: 35. a. The proceeds from the tea farm on LR No. LOC. 8/Matharite/1XXX shall be shared at 60:40 in favour of the respondent, and the applicant’s share shall be availed to the applicant as from the date of dissolution of the marriage, i.e. 17/11/2023. b. The Mwihoko Githurai plot, being jointly registered, shall be shared equally at 50% each. c. The Kahawa West matrimonial home, House No. XXX shall be divided and shared at the ratio of 60:40 in favor of the Respondent and shall be occupied by the applicant until it is sold to be shared in the said ratio of 60:40. d. Rental income from Plots Nos. 1XX and 2XX, Kahawa West, shall be shared at 70:30 in favor of the respondent. e. The motor vehicles shall remain exclusively with the Respondent. f. The Kahawa West market stores Nos. X, X, 7X, and 8X shall be co-owned by both parties, and proceeds shall be shared at 50:50, taking into account the Petitioner’s business and the children’s occupation. g. The plots nos. 5XX and 5XX B/H situated in Mavoko shall remain exclusively with the respondent. h. Any other matrimonial assets which shall be ascertained after these proceedings, or which may have been left out of these proceedings, shall be shared at the ratio of 50:50 by the parties. Parties shall each carry their costs of these proceedings. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/54/eng@2026-01-15 5

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It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF JANUARY 2026 ………………………………… E. K. OGOLA JUDGE In the Presence of: Mr. Machemi…………………………………………………………for the Applicant Mr. Muriuki…………………………………………………………for the Respondent Gisiele……………………………………………………………………Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/54/eng@2026-01-15 6

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