Amkn v Mmwk

7. The two properties which are in contest are Dagoretti/Riruta/3XXX/6 and motor vehicle KCA 8XXX. 8. The defendant in her replying affidavit deponed that there were other properties jointly registered between the Plaintiff and her parents. The same was not denied by the Plaintiff. 9. When the matter came up for directions the Court directed the parties to file written submissions which they complied. 10. In his submissions the Plaintiff claimed that the above two properties and in particular the apartment were obtained by way of purchase from Stanley Mngaruthi Nkonge and Catherine Gicuku Nkonge and the same transferred to him on 28th December 2017. That he paid a sum of Ksh.8,700,000 as a purchase consideration. 11. He further submitted that he purchased the motor vehicle in August 2014 solely and that is why just like the apartment the same is registered in his name. 12. On her side the Defendant argued that the apartment was a gift from their parents, (her in laws) and that the Plaintiff did not purchase the same. That the vehicle for instance was a gift from her in laws after delivery of her children. 13. She further deponed and submitted that she has all along taken care of their two children for instance between the years 2010 and 2013 when the Plaintiff was in and out of rehabilitation in South Africa, China and Nairobi. 14. She therefore prays that the said properties be considered matrimonial and be divided equally. Analysis And Determination 15. I have carefully perused the rival affidavits as well as the submissions and the authorities cited herein which I need not reproduce them here. 16. The basic issue to be determined is whether the two properties though registered in the Plaintiff’s name can be termed as matrimonial. 17. The parties have each cited various authorities with the leading common authority of JOO V MBO (Petition 11 OF 2020 (2023) KESC 4 (KLR) in which the Supreme Court of Kenya emphasized that each case is to be dealt with independently and that there was no blanket 50:50 contribution. In other words, every party must prove its contribution towards the acquisition of the property. 18. It is the Plaintiff’s case that he purchased the apartment from his parents and he produced a transfer document to that effect. There was no, as rightly submitted by the Defendant, any sale agreement indicating that he purchased it from them. 19. If indeed there was such a sale, then there was nothing difficult in exhibiting the same and indicating paper trail on how the sum of Kshs. 8.7 million exchanged hands between him and her parents. 20. At any rate there is no evidence of any stamp duty paid or any other outgoings in terms of conveyancing processes. 21. The same goes with the motor vehicle. Mere exhibiting of the logbook in my view is insufficient. In any case just like the apartment the acquisition was done during coverture. 22. The court has had a look at the other properties specifically Dagoretti/Riruta/5XXX and 5XXX respectively in which the Plaintiff is a co - registered owner with I suppose his parents. In my view https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3595/eng@2026-03-19 2

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this lends credence to the argument that the contested Dagoretti/Riruta 3XXX/6 was a gift from the Plaintiff’s parents and therefore forms part of their matrimonial property. 23. There was no contestation on the part of the Plaintiff to the above assertion by the Defendant. 24. Taking the totality of my above findings I hold that the Defendant who has been staying with their children as well as using the above motor vehicle for family purposes is entitled to 50% thereof considering that all were acquired during coverture and that there was no evidence of any direct purchase whether monetary or otherwise by the Plaintiff. 25. Despite the fact that the property was not transferred in the parties’ joint names by the Plaintiff’s parents the Defendant by virtue of taking care of the home as well as the children and when the Plaintiff was undergoing rehabilitation, an issue which he has not denied, falls within the findings by Lord Justice Fox in Burns .v. Burns (1984) 1 ALL ER 244, that is ; “ Contributing to the running of and welfare of the home and easing the burden of the spouse paying for the property and caring for the children and the family at large as the other spouse works to earn money to pay for the property. “ 26. It is also not contested that the Defendant has been residing with the children in the above property and the Plaintiff has since moved to another abode. 27. It is also noted that since the Defendant is entitled to 50 % thereof it goes without say that she will be entitled to 50% of the Plaintiff’s share in any property held by the Plaintiff and registered jointly with other persons. In other words, and by way of example if he has shares in Dagoretti/Riruta/5XXX and 5XXX then the Defendant will be entitled to the Plaintiff’s share therein. 28. In the premises the court finds and directs that: (a) The Plaintiff and the Defendant are entitled to 50% shares each in Dagoretti/Riruta/3XXX/6 and motor vehicle registration number KCA 8XXX. (b) The Defendant is entitled to 50% share of any property jointly registered as at now, in the names of the Plaintiff and any other persons. (c) The parties be at liberty to agree on the mode of sharing out the said properties including but not limited to outright sale and sharing out the proceeds equally. (d) Being a family matter, each shall meet their respective costs. DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 19TH DAY OF MARCH 2026. H K CHEMITEI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3595/eng@2026-03-19 3

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