High Court 3641 of 2026

division of the property between the applicant and the respondent in the same ratio as the Court may deem fit. c. That costs of the summon be provided for. 2. The Summons is supported by the affidavits of the applicant, sworn on 17th March 2023, 18th January 20024, and 23rd June 2005. 3. The respondent opposes the Summons and has filed replying affidavits sworn on 18th May 2023 and 16th July 2024. 4. The matter proceeded by way of Viva Voce evidence. Summary of the Applicant’s Evidence 5. The parties were married between 24th June 2006 and 8th December 2021. They had two children born in 2006 and 2010, respectively. During the pendency of the marriage, the listed properties were acquired and improved by the applicant. 6. Throughout the period of marriage, the applicant was in gainful employment, and he also ran a business to supplement his income. The sequence of employment was [Particulars Withheld] National Empowerment Network of People with HIV (NEPHAK), African Academy of Science, Intra Health International and at the time of the Filing of the Summons his employer was Kenya Red Cross Society. During the periods when he was in between jobs, he derived income from his business. 7. The respondent, on her part, worked at Kenya Broadcasting and subsequently at the Office of the Auditor General. She earned less than the applicant. 8. He bore the larger financial burden supporting the family; he paid fees for the two children of the marriage, he was the sole provider of medical for the family, paid the rent when the family lived in a rental house and bought groceries for the house. 9. In 2007, they jointly purchased the parcel of land KJD/ Kaputiei North/7690. He contributed more, Kshs 150000; the respondent contributed Kshs 100000. He paid the legal fees for the transaction. The property is registered in their joint names. He later took a loan in 2008 from NEPHAK and constructed a temporary house. Later, he took an additional loan, supplemented with income from his business, FYNEFIT solutions and built a 5-bedroom house. They lived there until 2017, when they moved to the Imara Daima House (House No 19 on LR 209/1139 at Kings Millennium Apartments) 10. He bought the respondent a car, which she later sold, and with a top-up bought herself a Toyota Runx KBP XXXX. 11. Whereas he has utilised his income on the family, the respondent has taken out loans and bought her own separate properties in Kitengela and Archers post in Samburu County. 12. In order to purchase the Imara Daima House, the respondent took out a mortgage. She continued to receive rent from the Kitengela House to help offset the mortgage. In addition to this contribution, he also made an indirect contribution to the acquisition and refurbishment of the Imara Daima Property. When the marriage broke down, the applicant moved to the Kitengela home. Later, he rented it out and has been collecting Kshs 40,000 in rent. 13. He solely acquired the properties in Mumias; the respondent did not support him in this. With regard to LR No. N/Wanga/Lung'anyiro/1593 he took a loan from LSK Sacco. As relates to LR No. N/ https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3641/eng@2026-03-19 2

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Wanga/Namamali/1793, he utilised his pension pay-out from Intra health International and topped up with a loan from the LSK Sacco 14. On cross examination- He conceded that the applicant is still servicing the mortgage. He had made a significant contribution to the purchase of the Imara Daima House. His payment for the Kitengela property was made from his company's earnings. He acknowledged that he did not have accounts or statements to prove the Company's earnings. 15. He did not have documentation to show his contribution towards the purchase of the Kitengela Property. At the time he bought the Mumias properties, the family was staying in Kitengela. No rent was payable. He conceded that during this period, the respondent was servicing the mortgage herself. 16. On re-examination, he clarified that the supervision of the construction at Kitengela was by a foreman. At the time of the hearing, the respondent was collecting the rental income from the Kitengela Home. He proposes that the property be distributed as followsa. Kitengela 80 per cent to him b. If he gets 80% of Kitengela, he will relinquish his claim to Imara Daima c. The Mumias properties are solely his. Summary of Respondent’s Case 17. She confirmed that they got married on 24th June 2006 and the marriage dissolved in 2021. For the duration of the marriage, she was in permanent and pensionable employment. The applicant did not make a financial contribution towards the acquisition of the property at Imara Daima. She supported the applicant's business by leveraging her contacts to secure contracts with KBC. He was not as responsible as he sought to portray, as on both occasions when their children were born, the appellant did not contribute towards the hospital bill. 18. During the pendency of the marriage, the appellant was in and out of jobs. When he was between jobs, the running of the home fell on her. He did not disclose to her the money he was making at his business. She paid fees for the Children and the respondent made intermittent payments and recovered the money he paid as a refund from his employer. 19. She made a substantial contribution towards the purchase and development of the Kitengela property. Her contribution towards family projects enabled the applicant to purchase the properties in Mumias. 20. On distribution, she proposes as follows- 21. a. That the Imara Daima be allocated to her solely b. She is allocated 85% of the Kitengela property c. The applicant is to retain the Mumias Properties Solely d. She be allotted 25 per cent of the proceeds of FYNEFIT On cross examination She asserted that she also paid school fees for the minors. She also shopped for groceries and household utilities. She continues to pay Kshs 100000 per month towards the mortgage. She had the bank statements up to 2015 to show payments towards Kajiado. The loan from Mtangazaji Sacco was used to construct the Kitengela Home. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3641/eng@2026-03-19 3

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22. She contended that there was no tenant in the house at Kitengela. She conceded that she was in possession of the Kajiado home. The applicant had the title document. She stated she contributed to the purchase of the Mumias property and the construction thereon. 23. On re-examination, she stated that her payslip shows she was having loans deducted from her salary. She took on extra jobs to supplement her income. Summary of Applicant’s Submissions. 24. 25. The issues for determination as framed by the applicant are – a. Whether the properties herein constitute matrimonial properties and what is the contribution of each party on the said properties b. How should the properties be distributed between the parties? Reference is made to the decision in the case of UMM vs IMM [2014] eKLR as the applicant submits that each party is only entitled to what they deserved based on their contribution, both financial and non- financial. It is submitted that this was reiterated in the decision of the Zambian Supreme Court in Mathew Chishimba Nkata vs Esther Golly Mwenda Nkata (SCZ Appeal No. 60/2015). Summary of Respondent’s Submissions 26. The respondent summarises her pleadings and evidence; she relies on the following authorities. a. PKR v AMR [ 2025] KEHC 15354 (KLR) For the assertion that she is entitled to her share of the proceeds of the portion of the Mumias property that was sold. b. PWK v JKG [2018] eKLR for the assertion that the respondent was obligated to prove his actual contribution towards the acquisition of the Imara Daima Property, which is registered in the sole name of the respondent. c. SN Vs FM [2019] eKLR for the assertion that any property acquired during the subsistence of the marriage is matrimonial property, including that which is inherited. Analysis and Determination 27. 28. Having considered the pleadings, evidence adduced, and respective submissions alongside the relevant law, I consider the following to be the issues for determinationa. Whether the listed properties comprise matrimonial property b. What is the share of the parties to the property based on their respective contribution? c. Arising from (b) and (c), what are the consequential orders- On the 1st issue, the relevant law is Section 6 of the Matrimonial Property Act, which at Section 6 (1) defines Matrimonial property to include 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/2026/3641/eng@2026-03-19 4

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29. Section 2 of the Act defines the ‘matrimonial home’ as any property that is owned or leased by one or both spouses and occupied or utilised by the spouses as their family home, and includes any other attached property. 30. It is not disputed that the assets subject herein were all acquired during the pendency of the marriage, and in fact, the Kitengela and Imara Daima Properties were set up as the matrimonial home. I therefore have no hesitation in finding that the following properties comprise matrimonial property- 31. a. KJD/ Kaputei North/ 790 (Kitengela Property) b. House Number LR 209/1139 at King’s Millenium (Imara Daima Property) c. LR No. N/Wanga/lung'anyiro/1593 d. LR No. N/Wanga/Namamali/1793 The 2nd issue, is the respective share of the parties to the property. Section 7 of the Matrimonial Property Act statesSubject 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 spouses if they divorce or their marriage is otherwise dissolved. 32. It is evident, therefore, that the crux of the matter is the contribution towards the acquisition or development of the property. Section 6(3) of the Matrimonial Property Act gives legal recognition to agreements that parties may enter into prior to the marriage to determine their property rights. By necessary implication, parties can also enter into post-nuptial agreements. When they fail to do it is left to the Court to distribute the property based on statutory presumptions. 33. The Supreme Court of Kenya in the decision in JOO v MO; Federation of Women Lawyers Anor (Interested Parties) Petition No. 11 of 2020 summarised it as hereunder [101] Therefore, in the event that a marriage breaks down, the function of any court is to make a fair and equitable division of the acquired matrimonial property guided by the provisions of Article 45(3) of the Constitution. To hold that Article 45(3) has the meaning of declaring that property should be automatically shared at the ratio of 50:50 would bring huge difficulties within marriages, and Tuiyott, J (as he then was) has explained why above. Noting the changing times and the norms in our society now, such a finding would encourage some parties to only enter into marriages, comfortably subsist in the marriage without making any monetary or non-monetary contribution, proceed to have the marriage dissolved, then wait to be automatically given 50% of the marital property. That could not have been the intention of our law on the subject. 34. Section 14 providesPresumptions as to property acquired during marriage Where matrimonial property is acquired during marriagea. 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 rebuttable presumption that their beneficial interests in the matrimonial property are equal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3641/eng@2026-03-19 5

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35. The respondent is registered as the sole proprietor on House Number LR 209/1139 at King’s Millenium (Imara Daima Property), and the applicant is the sole proprietor of the properties LR No. N/Wanga/Lung'anyiro/1593 and LR No. N/Wanga/Namamali/1793. 36. As stated, the law is prepared to presume that, since the properties were acquired during the course of the marriage, the property is held in trust for the other party. However, the spouse who is the registered proprietor can rebut this presumption. One way is to demonstrate that the other spouse did not contribute anything that would entitle them to a share in the property. 37. Section 2 defines contribution to mean monetary and non- monetary contribution and includesa. Domestic work and management of the matrimonial home b. Child care c. Companionship d. Management of family business or property; and e. Farm work 38. Regarding the Mumias properties, they are registered solely in the applicant's name. The parties hold conflicting accounts of the motivation for acquiring these properties. It is not disputed that the applicant made a significant financial contribution towards their acquisition. Although the respondent claimed she provided some money for the project, she was unable to prove on a balance of probabilities that she contributed financially either to the purchase of the parcels or their development. 39. Regarding non-financial and indirect contributions, it is clear that both parties took on responsibilities for running the household. Whether it involved paying utilities, providing companionship, caring for the children, paying school fees, or arranging medical cover, these tasks were shared. Therefore, in terms of contribution, they effectively cancel out. 40. The same will hold for the Imara Daima Property. The applicant has not demonstrated his financial contribution towards the acquisition of the property. His indirect and non-monetary contribution is cancelled out by that of the respondent. 41. The Kitengela Property is registered in the joint names of the parties. The law presumes that their beneficial interests are equal. Evidence shows that at the time of purchase, both parties contributed financially towards the purchase and subsequent development. I can infer that the respondent’s continued collection of rent reflects recognition of her contribution to the property. Additionally, it is uncontested that after separation, the applicant moved into the house as acknowledgment of his beneficial interest. I find that neither party has presented sufficient evidence to rebut the presumption that their beneficial interests are equal. 42. With regard to the respondent’s claim to shares at FYNEFIT, the issue only arose at the hearing and in submissions. The same is not included in her replying affidavits. I therefore dismiss the same as not having been pleaded. 43. In light of the foregoing, the property shall be distributed as set out below. 1. KJD/ Kaputei North/ 790 (Kitengela Property)- Equally 2. House Number LR 209/1139 at King’s Millenium (Imara Daima Property)-100% to the respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3641/eng@2026-03-19 6

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44. 3. LR No. N/Wanga/Lung'anyiro/1593 100 % to the applicant 4. LR No. N/Wanga/Namamali/1793 100% to the applicant In conclusion, these are the consequential orders arising from the findings above. a. The property KJD/ Kaputei North/ 790 (Kitengela Property)shall be shared equally between the applicant and the respondent b. The Counsel for the parties shall agree on a valuer within 21 days from the date hereof. In the event they are unable to agree, Counsel for the applicant will nominate a valuer c. The valuer nominated under (b) above will prepare a report within 30 days. d. The applicant will have the first right of purchase and to buy out the respondent within 90 days of receiving the valuer’s report. If the applicant elects not to exercise this right, the respondent will make an offer to buy out the applicant within 90 days of the applicant's communication. (e) If neither party is willing or able to buy out the other, the property shall be sold, and the net proceeds shall be shared equally between them. (f) Parties shall sign all necessary documents to enable the valuation, sale, and transfer of the property within 14 days of being presented with the documents. If any party fails to sign a document, the Deputy Registrar, Family Division, of Milimani Law Courts, shall sign it on their behalf. e. House Number LR 209/1139 at King’s Millenium (Imara Daima Property) to vest in the respondent absolutely f. LR No. N/Wanga/Lung'anyiro/1593 and any subsequent subdivisions derived therefrom vests in the applicant absolutely g. LR No. N/Wanga/Namamali/1793 vests in the applicant absolutely 45. On account of the relationship between the parties, there shall be no order as to costs. 46. Parties are at liberty to exercise their right of appeal within 30 days It is so ordered DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 19TH DAY OF MARCH, 2026. NYAUNDI JUDGE In the presence of: Ng’alamoi Court Assistant Ms. Muhanda for Applicant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3641/eng@2026-03-19 7

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