Prs v Mwr

3. It is not in dispute that the parties were married on 10th December 1994 at [Particulars Withheld] Catholic Parish, Longonot. The marriage was later dissolved through Divorce Cause No. 1 of 2020 at the High Court of Kenya at Narok, culminating in a Decree Absolute issued on 9th November 2022. 4. The Applicant contends that during the subsistence of the marriage, the parties jointly acquired several properties through their efforts and resources, but that many of those properties were registered in the sole name of the Respondent. He therefore seeks declarations that the said assets constitute matrimonial property and should be equitably divided between the parties. 5. The Respondent opposes the application and contends that although some properties were acquired during the subsistence of the marriage, others were acquired solely through her personal business efforts or after the parties had separated and therefore do not constitute matrimonial property. She further disputes the extent of the Applicant’s alleged contribution towards the acquisition of the properties. B. The Pleadings 6. The dispute before the Court arises from the Amended Originating Summons dated 29th August 2025 filed by the Applicant. 7. In the Amended Originating Summons, the Applicant principally seeks the following orders: 8. i. A declaration that several properties registered in the name of the Respondent, jointly in the names of the parties, or otherwise held on behalf of the Respondent, constitute matrimonial property. ii. Orders for the distribution of the said properties between the parties in the proportions proposed in the Amended Originating Summons. The properties listed in the application comprise several parcels of land, business premises, and other assets which the Applicant alleges were acquired during the subsistence of the marriage. These include, inter alia: I. Mungu Tulinde Plot No. 1x4 II. Cis Mara/Koiyaki Dagurugureti LR No. 4x5 III. Cis Mara/Ololulunga LR Nos. 13xx3 and 13xx9 IV. Plot No. 1x0 V. Ololulunga LR No. 12xx7 ([Particulars Withheld] Hall) VI. Cis Mara/Oldonyo Rasha LR No. 1x5 VII. Opposite [Particulars Withheld] Plot (100 × 100) VIII. Behind [Particulars |Withheld] Plot (50 × 100) IX. [Particulars Withheld] Farm (approximately 1½ acres) X. [Particulars Withheld] Farm XI. Keroka Plot (50 × 100) XII. Kebenei Plot (50 × 100) XIII. Cis Mara LR No. 13xx7 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4075/eng@2026-03-27 2

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XIV. Baba Mungai Plot (50 × 100) XV. [Particulars Withheld] Bar and Restaurant XVI. After [Particulars Withheld] Plot (MW's Home) XVII. Motor Vehicle Registration No. KAQ xxxM 9. 10. In support of the Amended Originating Summons, the Applicant filed the following documents: i. A Supporting Affidavit sworn on 4th May 2024, together with annexures; ii. A Further Affidavit sworn on 29th August 2025; and iii. A Further Affidavit dated 24th September 2025 responding to the Respondent’s replying to affidavit. The Respondent opposed the application and filed: i. A Replying Affidavit sworn on 1st July 2024; ii. A Replying Affidavit to the Amended Originating Summons dated 29th August 2025; and iii. A Further List of Documents dated 23rd October 2025, together with other documentary evidence. 11. In her pleadings, the Respondent contends that she is a businesswoman engaged in hospitality, catering, and travel-related enterprises operating under the trade name [Particulars Withheld] Enterprises, and that through these business activities she secured loans and other financing which enabled her to acquire several of the properties in question. 12. She further asserts that the Applicant was employed as a driver earning a modest salary and therefore made minimal financial contribution towards the acquisition of the disputed properties. 13. The matter proceeded to hearing, during which both parties tendered evidence in support of their respective cases. Upon conclusion of the hearing, the Court directed the parties to file written submissions. C. Evidence i. Applicant’s Evidence 14. The Applicant, PW1 PRS, testified in support of his case and adopted the contents of his Amended Originating Summons dated 29th August 2025, and the supporting and further affidavits filed in the matter as part of his evidence in chief. 15. He testified that he and the Respondent were married on 10th December 1994 at [Particulars Withheld] Catholic Parish, Longonot, and that the marriage subsisted until the parties separated in 2013. The marriage was subsequently dissolved by the court. During the subsistence of the marriage, the parties acquired several properties which, according to him, constituted matrimonial property. 16. The Applicant produced a list of properties which he stated were acquired during the marriage. These included: a. Mungu Tulinde Plot No. 1x4 b. Cis Mara/Koiyaki Dagurugureti LR No. 4x5 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4075/eng@2026-03-27 3

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c. Cis Mara/Ololulunga LR No. 13xx3 d. Cis Mara/Ololulunga LR No. 13xx9 e. Plot No. 1x0 f. [Particulars Withheld] Bar and Restaurant g. After [Particulars Withheld] (MW's Home) h. Cis Mara/Oldonyo Rasha LR No. 1x5 i. Plot opposite [Particulars Withheld] (100 x 100) j. Plot behind [Particulars Withheld] (50 x 100) k. [Particulars Withheld] Farm (approximately ½ acre) l. [Particulars Withheld] Farm (approximately ½ acre) m. Keroka Plot (50 x 100) n. Kebenei Plot (50 x 100) o. Cis Mara LR No. 13xx7 p. Baba Mungai Plot (50 x 100) q. Motor vehicle registration number KAQ xxxM 17. The Applicant testified that although many of the properties were registered in the name of the Respondent, they were acquired through the joint efforts of the parties during the marriage. He stated that the Respondent had admitted obtaining loans from financial institutions which were used to purchase some of the properties, but he contended that the Court ought to determine whether those properties were acquired during the subsistence of the marriage and therefore constituted matrimonial property. 18. According to the Applicant, the parties also disposed of certain properties during the marriage and used the proceeds to acquire or develop other properties. He produced a bundle of sale agreements dated 9th July 2008 and others in support of this assertion. 19. The Applicant further testified that he currently resides on Mungu Tulinde Plot No. 1x4, where he operates a business. He stated that he had developed the property and used the proceeds generated from it to support the family and educate the children. 20. In his evidence, the Applicant proposed that the properties be distributed in such a manner that he would retain the following properties: a. Mungu Tulinde Plot No. 1x4 b. Cis Mara/Koiyaki Dagurugureti LR No. 4x5 c. Cis Mara/Ololulunga LR No. 13xx3 d. Cis Mara/Ololulunga LR No. 13xx9 e. Plot No. 1x0 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4075/eng@2026-03-27 4

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21. He proposed that the Respondent retain the remaining properties, including [Particulars Withheld] Bar and Restaurant, MW's home, and the other parcels of land listed in his affidavit. 22. The Applicant also testified that some properties claimed by the Respondent did not form part of the matrimonial property. In particular, he referred to Ololulunga LR No. 12xx7 ([Particulars Withheld] Hall) and stated that the property had been the subject of Narok ELC Case No. 89 of 2019, in which judgment was delivered on 30th May 2023 in favour of the plaintiff who had claimed the land through allocation by elders in the 1970s. According to him, the said property therefore did not form part of the matrimonial property. 23. He also testified that Plot No. 1x0 had been sold by the Respondent through a sale agreement dated 10th February 2024. 24. The Applicant further stated that certain properties, including Narok/Cis Mara/Nkoben/x2 and Kajiado/Kitengela/4xx5, were acquired by him before the marriage and therefore did not constitute matrimonial property. 25. During cross-examination, the Applicant confirmed that the parties married in 1994 and separated in 2013. He acknowledged that there had been no agreement between the parties regarding the division of the properties and that the distribution he proposed in his affidavits reflected his own view of how the properties should be shared. 26. He testified that the Respondent had largely been a housewife during the marriage while he provided financial support for the family and the acquisition of property. He stated that he contributed money towards the purchase and development of several properties and that the proceeds from some properties were used to educate the children. 27. Regarding Cis Mara/Koiyaki Dagurugureti LR No. 4x5, he stated that the property was registered in two names and that it could be shared between the parties. He also acknowledged that certain properties had been sold during the marriage, including portions of land which the Respondent sold in order to expand her business. 28. With respect to Cis Mara/Ololulunga LR No. 13xx3, the Applicant stated that he did not hold a title document for the property but claimed that he had contributed to its acquisition and development. 29. He further testified that Cis Mara/Ololulunga LR No. 13xx9 was registered in the names of the parties’ children but expressed the view that the property should be transferred to him. 30. The Applicant also confirmed that some of the properties listed in his affidavit, including the Respondent’s home and [Particulars Withheld] Bar and Restaurant, were occupied or operated by the Respondent. 31. In re-examination, the Applicant stated that he had proposed to retain only five of the properties and was willing to leave the remaining properties to the Respondent. 32. He reiterated that certain properties, including Ololulunga LR No. 12xx7, had already been the subject of litigation in the Environment and Land Court and therefore should not be considered part of the matrimonial property in dispute. 33. He maintained that the properties he claimed were acquired during the marriage and that he was entitled to a share of them. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4075/eng@2026-03-27 5

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ii. Respondent’s Evidence 34. The Respondent, MWR, testified as DW1 and relied on her Replying Affidavit, Replying Affidavit to the Amended Originating Summons, and the documents annexed thereto as her evidence in chief. 35. DW1 testified that she married the Applicant in 1994, and the marriage subsisted until 2013 when the parties separated following persistent marital disagreements. She stated that the marriage had experienced turbulence from around 2010, which led her to report the matter to the local chief and elders for mediation. Despite attempts at reconciliation, the relationship deteriorated, prompting her to file divorce proceedings, which were later withdrawn after the Applicant promised to change his conduct. However, the situation did not improve, and the parties ultimately separated in 2013, although the divorce was formally finalized later. 36. DW1 further testified that during the marriage, the parties had four biological children and one adopted child, and after the separation, the children largely remained under her care. She stated that while the Applicant occasionally assisted with payment of school fees, she bore the primary responsibility for the children’s welfare, including provision of food, shelter, clothing, medical expenses, and other necessities. 37. The Respondent testified that she had never been a housewife during the marriage, but had always been engaged in business activities. According to her testimony, she operated businesses in hospitality, catering, hotel management, travel organization, and supply services, which she conducted under the trade name [Particulars Withheld] Enterprises. She stated that through these business ventures she obtained loans from financial institutions, sometimes amounting to up to Kshs. 1.5 million, which she used to finance the acquisition of several parcels of land and other developments. 38. DW1 maintained that many of the properties registered in her name were acquired through her own business income and bank financing, and that the Applicant made little or no financial contribution towards their acquisition. In support of this position she produced bank statements, loan statements, loan agreements, business registration documents for [Particulars Withheld] Enterprises, and other documentary evidence demonstrating her engagement with financial institutions and business operations. 39. DW1 acknowledged that some of the properties listed by the Applicant were indeed acquired during the subsistence of the marriage. She identified the following as properties acquired during the marriage: 40. a. Mungu Tulinde Plot No. 1x4 b. Cis Mara/Koiyaki Dagurugureti LR No. 4x5 c. Cis Mara/Ololulunga LR No. 13xx3 d. Cis Mara/Ololulunga LR No. 13xx9 e. Plot No. 1x0 f. Ololulunga LR No. 12xx7 ([Particulars Withheld] Hall) g. Cis Mara/Oldonyo Orasha LR No. 1x5 h. Baba Mungai Plot (50 × 100) However, she maintained that although some properties were acquired during the marriage, the financial resources used to acquire them were largely generated through her businesses and loans obtained in her name. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4075/eng@2026-03-27 6

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41. DW1 disputed the Applicant’s claim that certain properties constituted matrimonial property. She testified that the following properties were acquired after the parties had separated in 2013, and were therefore her personal acquisitions: a. [Particulars Withheld] Bar & Restaurant, acquired in 2016 from FKON. b. After [Particulars Withheld] Plot (MW Home), acquired in 2015 from Kasual Ole Lenjir, using proceeds from the sale of land given to her by her mother. c. Behind [Particulars Withheld] Plot, acquired in 2014 from the Kimiti Shunkurr family. 42. She produced sale agreements, transfer documents, and bank statements to demonstrate the acquisition of these properties after separation. 43. DW1 gave detailed testimony regarding several of the properties in dispute. a. Mungu Tulinde Plot No. 1x4 44. She testified that this plot was purchased in October 1995 from Sirere Ole Koikai at a price of Kshs. 80,000 using family resources. The property was developed with four commercial shops and fourteen guest rooms, which generate rental income. 45. According to DW1, since the parties separated in 2013, the Applicant has been solely collecting the rental proceeds from the property. She estimated that the Applicant had received approximately Kshs. 45,576,000 in rental income from the property over that period. She therefore sought an order requiring the Applicant to refund half of the proceeds amounting to Kshs. 22,788,000, and that future income from the property be deposited in a joint account for the benefit of both parties. b. Cis Mara/Koiyaki Dagurugureti LR No. 4x5 46. DW1 testified that this property measures approximately 32.53 hectares (about 80 acres) and is registered in the joint names of the parties. She stated that the property had been leased to Mara Conservancy for 25 years, and that the Applicant had been receiving lease payments amounting to Kshs. 8,419 per acre annually, translating to approximately Kshs. 676,466 per year. 47. She testified that from 2019 to the time of filing the case, the Applicant had received approximately Kshs. 4,058,796 from the lease without sharing the proceeds with her. She therefore sought payment of half the amount received and an order directing that future lease payments be shared equally between them. c. Cis Mara/Ololulunga LR No. 13xx3 48. DW1 testified that this property measures approximately three-quarters of an acre and was purchased by her during marriage with the Applicant’s knowledge. She stated that in 2012, a portion measuring 50 × 100 feet was sold to Benjamin Kimutai Chepkelat for Kshs. 280,000, and that the Applicant was aware of the sale and even signed the sale agreement as a witness. The proceeds of that sale were used to roof [Particulars Withheld] Hall. 49. She testified that the Applicant currently occupies the remaining portion of the land where he has constructed temporary rental structures generating approximately Kshs. 14,000 per month. She therefore proposed that the sold portion be formally transferred to the purchaser and the remainder of the property be shared equally between the parties. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4075/eng@2026-03-27 7

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d. Cis Mara/Ololulunga LR No. 13xx9 50. DW1 testified that this property was purchased by her from Salonik Ole Shankur around 2007 or 2008, during the marriage. She stated that although the Applicant currently occupies and cultivates the land, it should be shared equally between them as it was acquired during the marriage. e. Plot No. 1x0 51. She further testified that Plot No. 1x0 was purchased by her in November 2006 from Sakana Ole Chepukel for Kshs. 170,000 and is registered in her name. She stated that the Applicant is currently occupying the plot and has erected temporary structures thereon. She proposed that the property be shared equally between the parties. Ololulunga LR No. 12xx7 ([Particulars Withheld] Hall) 52. DW1 testified that this property was gifted to the parties on 11th December 2000 by the Applicant’s late brother MS. The land measures approximately two acres and contains several developments including a hall, rental houses, and shops. 53. She stated that since the parties separated in 2013, the Applicant had been collecting rental income from the property alone amounting to approximately Kshs. 6,732,000, and she sought payment of half of that sum (Kshs. 3,366,000) and equal sharing of future proceeds. 54. DW1 also disputed the existence or ownership of several properties listed by the Applicant, including Opposite [Particulars Withheld] Plot, [Particulars Withheld] Farm, [Particulars Withheld] Farm, Keroka Plot, and Cis Mara LR No. 13xx7, stating that she had no knowledge of them or that the properties belonged to other persons. 55. The Respondent further testified that the Applicant had acquired certain parcels of land during the subsistence of the marriage which he had not disclosed in the proceedings. She identified these as: a. Narok/Cis-Mara/Nkoben/x2 b. Kajiado/Kitengela/4xx5 56. She therefore claimed half shares in those properties as matrimonial property. 57. During cross-examination, DW1 reiterated that she had been engaged in business activities including hotel management, catering services, and supply tenders throughout the marriage. She maintained that she obtained loans and used her business income to acquire various properties. 58. She also confirmed that the parties separated in 2013 and that the divorce was finalized in 2022. She stated that although the Applicant had been employed as a tour guide/driver in the [Particulars Withheld], earning a modest income, she was primarily responsible for running the family businesses. 59. In re-examination, DW1 reiterated that she had actively managed the [Particulars Withheld] Hotel and other business enterprises, while the Applicant worked in the [Particulars Withheld]. She maintained that her claims in the case were aimed at ensuring that the Court fairly determines the parties’ respective rights in the property and income derived from them. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4075/eng@2026-03-27 8

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D. Parties Submissions i. Applicant’s submissions 60. The Applicant submits that the properties listed in the Amended Originating Summons qualify as matrimonial property within the meaning of Section 6 of the Matrimonial Property Act, 2013. The Applicant submits that all the listed properties were acquired during the subsistence of the marriage between 10th December 1994 and 9th November 2022, when the marriage was formally dissolved. Reliance is placed on the decision in TMW v FMC [2018] eKLR. 61. The Applicant therefore contends that the relevant test is whether the property was acquired during the subsistence of the marriage. He submits that the Respondent does not dispute that the properties were acquired during the marriage and that some are registered either jointly or in her sole name. Accordingly, the Applicant argues that the properties fall within the definition of matrimonial property. The Applicant further invokes Section 14 of the Matrimonial Property Act, which creates presumptions regarding property acquired during marriage. On that basis, the Applicant urges the Court to find that the suit properties constitute matrimonial property. 62. The Applicant further submits that both monetary and non-monetary contributions must be considered when determining entitlement to matrimonial property. Reliance is placed on Sections 2 and 7 of the Matrimonial Property Act. 63. The Applicant submits that he made substantial monetary contributions towards the acquisition and development of the properties. He states that at the time of the marriage, he was employed by [Particulars Withheld] Hotels Limited at [Particulars Withheld] Camp and that he used his income from employment together with proceeds from a hotel business to acquire the properties. 64. Conversely, the Applicant challenges the Respondent’s assertion that she solely acquired the properties through loans obtained from financial institutions. He submits that the Respondent failed to demonstrate her source of income or produce evidence showing how she qualified for such loans. The Applicant, therefore, argues that the Respondent did not establish exclusive financial contribution. 65. The Applicant also relies on non-monetary contributions recognized under Section 2 of the Matrimonial Property Act. He submits that during the subsistence of the marriage, he contributed in the following ways: Managing and maintaining the matrimonial home; Paying for domestic workers and household expenses; Providing security and utilities for the home; Paying school fees and medical expenses for the children; Managing family businesses, including farming and hotel operations; and providing companionship and emotional support. The Applicant relies on the decision in PNN v ZWN [2017] eKLR, where Kiage JA discussed the nature of non-monetary contribution in matrimonial property disputes and stated that the existence of marriage alone does not automatically entitle a spouse to equal property distribution where no contribution is demonstrated. 66. The Applicant submits that the Court should therefore evaluate the actual contributions of each spouse, rather than automatically applying a 50:50 distribution. The Applicant also relies on the decision in Francis Njoroge v Virginia Wanjiku Njoroge, Nairobi Civil Appeal No. 179 of 2009, where the Court emphasized that the division of matrimonial property must depend on the peculiar circumstances of each case. Reference is also made to the decision of the Singapore Court of Appeal in Lock Yeng Fun v Chua Hock Chye [2007] SGCA 33, where the Court stated that the division of matrimonial property cannot be a precise mathematical exercise. The Applicant therefore submits that both parties made substantial but difficult-to-quantify contributions toward the acquisition of the matrimonial assets. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4075/eng@2026-03-27 9

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67. On distribution, the Applicant relies on Article 45(3) of the Constitution of Kenya, 2010.The Applicant further relies on the decision in PWK v JKG [2015] eKLR, where the Court of Appeal adopted the principles stated in Echaria v Echaria [2007] eKLR regarding the division of matrimonial property. The Applicant also relies on Gissing v Gissing [1970] 2 All ER 780, where Lord Pearson cautioned that courts should avoid rigid application of equal distribution where the extent of contributions can reasonably be determined. The Applicant submits that in circumstances where the parties made substantial but unascertainable contributions, courts have applied the equitable maxim “equality is equity.” 68. He therefore urges the Court to distribute the properties in accordance with the proposals contained in the Amended Originating Summons or, in the alternative, order the sale of the properties and division of the proceeds between the parties. 69. Finally, the Applicant submits that costs follow the event and should therefore be awarded to the successful party. ii. Respondent’s submissions 70. The Respondent submits that she has always been a businesswoman engaged in hospitality, catering, and tourism-related services. She states that she operates under the trade name [Particulars Withheld] Enterprises, through which she has conducted business activities, including catering services, hotel management, and organizing travel arrangements for visitors. 71. According to the Respondent, the documentary evidence placed before the Court—including bank statements and loan records—demonstrates that she obtained several loans from financial institutions, including sums of Kshs. 200,000, Kshs. 500,000, Kshs. 1,000,000, and Kshs. 1,500,000, which enabled her to acquire a number of properties. 72. The Respondent submits that this evidence clearly demonstrates that she was actively engaged in business and financial transactions and was not merely a housewife as suggested by the Applicant. 73. Conversely, the Respondent submits that the Applicant failed to demonstrate a meaningful financial contribution towards the acquisition of the properties. She argues that the Applicant was employed as a driver with the [Particulars Withheld] Conservancy, earning approximately Kshs. 5,500 per month, and he did not produce any pay slips or documentation to demonstrate that his income enabled him to acquire the disputed properties. 74. The Respondent, therefore, contends that the Applicant’s claim of equal contribution lacks evidentiary support. 75. In support of her position on the legal framework governing matrimonial property, the Respondent relies on the decision in TMW v FMC [2018] eKLR. 76. The Respondent submits that although property acquired during marriage may constitute matrimonial property, the Court must still examine the actual contribution of each spouse before determining the extent of their beneficial interest. 77. The Respondent addressed each of the disputed properties individually. 78. On Mungu Tulinde Plot No. 1x4, The Respondent submits that this property was purchased in October 1995 from Mr. Sirere Ole Koikai for Kshs. 80,000 using family resources. The property is developed with four commercial shops generating monthly rental income and fourteen guest rooms generating accommodation income. The Respondent states that since 2013, when the parties https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4075/eng@2026-03-27 10

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separated, the Applicant has been solely receiving the rental income from the property. She estimates that the Applicant has received approximately Kshs. 45,576,000 from the property since separation. The Respondent therefore prays that the Court orders the Applicant to refund half of the proceeds, which is Kshs. 22,788,000, and thereafter direct that future proceeds from the property be deposited into a joint account for the benefit of both parties. 79. On Cis Mara/Koiyaki Dagurugureti LR No. 4x5, the Respondent submits that this property measures approximately 32.53 hectares (about 80 acres) and is registered in the joint names of the parties. The property has been leased to the Mara Conservancy for a period of 25 years, generating an annual income of Kshs. 676,466, calculated at Kshs. 8,419 per acre per year. 80. The Respondent contends that the Applicant leased the property without her knowledge and has been receiving the proceeds exclusively since 2019, amounting to Kshs. 4,058,796 to date. 81. She therefore urges the Court to order the Applicant to refund half of the proceeds, which are Kshs. 2,029,398, and to direct that future payments be deposited in accounts benefiting both parties equally. 82. On Cis Mara/Ololulunga LR No. 13xx3, the Respondent states that this property was purchased by her with knowledge of the Applicant. She further submits that in 2012, a portion measuring 50 x 100 feet was sold to Benjamin Kimutai Chepkelat, with the Applicant witnessing the sale agreement. The proceeds of Kshs. 280,000 were used to roof [Particulars Withheld] Hall. The Respondent therefore asks the Court to order the transfer of the sold portion to the purchaser and thereafter divide the remaining property equally between the parties. 83. On Cis Mara/Ololulunga LR No. 13xx9, the Respondent states that this property was purchased in 2007 from Mr. Salonik Ole Shankur, as evidenced by a sale agreement dated 29th June 2007. She submits that although the Applicant is currently occupying and cultivating the land, the property was acquired during the subsistence of the marriage and should therefore be shared equally between the parties. 84. On Plot No. 1x0, the Respondent states that she purchased this property from Mr. Sakana Ole Chepukel for Kshs. 170,000, and that it is registered in her name. However, she acknowledges that the property was acquired during the marriage and therefore proposes that it be shared equally between the parties. 85. On Ololulunga LR No. 12xx7 ([Particulars Withheld] Hall), the Respondent submits that this property was gifted to both parties by their late brother MS on 11th December 2000 through a Deed of Gift executed before an advocate. The property measures approximately two acres and contains: [Particulars Withheld] Hall; Two rental shops; Several residential rental units. 86. The Respondent states that the Applicant has been receiving all the rental income since 2013, amounting to Kshs. 6,732,000. She therefore prays that the Applicant refunds half the proceeds, being Kshs. 3,366,000, and thereafter share future proceeds equally. The Respondent further submits that several properties listed by the Applicant do not constitute matrimonial property because they were acquired after the parties separated in 2013. These include [Particulars Withheld] Bar & Restaurant (acquired in 2016); After [Particulars Withheld] – MW Home (acquired in 2015); Behind [Particulars Withheld] Plot (acquired in 2014). 87. The Respondent states that these properties were acquired solely through her personal business efforts and proceeds from property sold by her family. She therefore urges the Court to find that these properties fall outside the scope of matrimonial property. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4075/eng@2026-03-27 11

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E. Issues for Determination 88. 89. After carefully considering the pleadings, evidence on record, and submissions by the parties, the Court is of the view that the following issues arise for determination: i. Whether the properties listed by the parties constitute matrimonial property within the meaning of the Matrimonial Property Act, 2013. ii. Whether the parties contributed—either financially or through non-monetary contribution —to the acquisition and development of the said properties, and if so, to what extent. iii. Whether certain properties were acquired after separation or before marriage and therefore fall outside the definition of matrimonial property. iv. What orders should issue regarding the distribution of matrimonial property between the parties. The Court will address each of the issues sequentially. F. Analysis and Determination I. Whether the properties constitute matrimonial property 90. The starting point in determining disputes relating to matrimonial property is the Constitution of Kenya, 2010 and the Matrimonial Property Act, No. 49 of 2013. 91. Article 45(3) of the Constitution of Kenya, 2010 provides: “ 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.” 92. The statutory framework is found in the Matrimonial Property Act, 2013. 93. Section 6(1) of the Act defines matrimonial property as: 94. a. the matrimonial home or homes. b. household goods and effects in the matrimonial home; and c. any other immovable and movable property jointly owned and acquired during the subsistence of the marriage. Further, Section 7 of the Act provides: “ 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. The Court of Appeal has interpreted these provisions in several decisions. 96. In TMW v FMC [2018] eKLR, the Court of Appeal held that: “ For property to qualify as matrimonial property, it must be shown that it was acquired during the subsistence of the marriage and that the parties made contribution, whether direct or indirect, towards its acquisition.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4075/eng@2026-03-27 12

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97. Similarly, in PNN v ZWN [2017] eKLR, Kiage JA stated: “ The law recognizes that matrimonial property may be acquired through financial contribution, domestic labour, childcare, companionship, management of family business or other forms of non-monetary contribution.” 98. In the present case, both parties acknowledge that several of the properties were acquired during the subsistence of the marriage. Indeed, the Respondent herself confirmed that the following properties were acquired during the marriage: i. Mungu Tulinde Plot No. 1x4 ii. Cis Mara/Koiyaki Dagurugureti LR No. 4x5 iii. Cis Mara/Ololulunga LR Nos. 13xx3 and 13xx9 iv. Plot No. 1x0 v. Ololulunga LR No. 12xx7 ([Particulars Withheld] Hall) vi. Cis Mara/Oldonyo Rasha LR No. 1x5 vii. Baba Mungai Plot 99. The Court therefore finds that the above properties fall within the definition of matrimonial property under Section 6 of the Matrimonial Property Act since they were acquired during the subsistence of the marriage. 100. However, the Respondent contends that several other properties were acquired after the parties separated in 2013, namely: i. [Particulars Withheld] Bar & Restaurant (acquired 2016) ii. After [Particulars Withheld] Plot (MW Home) – acquired 2015 iii. Behind [Particulars Withheld] Plot – acquired 2014 101. The law recognizes that property acquired after separation may fall outside matrimonial property unless it is demonstrated that matrimonial resources were used to acquire it. 102. In MNK v POM, Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] eKLR, the Supreme Court held: “ The division of matrimonial property must be based on proof of contribution. Marriage alone does not entitle a spouse to an automatic half share of property acquired during the marriage. 103. The Court must therefore determine whether the properties alleged to have been acquired after separation were purchased using matrimonial resources or through the Respondent’s independent efforts. 104. Based on the documentary evidence produced by the Respondent, including sale agreements and bank records, the Court is satisfied that the properties acquired in 2014, 2015, and 2016 were purchased after the parties had already separated and through the Respondent’s business income. 105. Consequently, the Court finds that those properties do not constitute matrimonial property. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4075/eng@2026-03-27 13

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II. Whether the parties contributed to the acquisition of the properties 106. The next issue concerns the extent of each party’s contribution. 107. Section 2 of the Matrimonial Property Act defines contribution to include both monetary and nonmonetary contributions, including: a. Domestic work and management of the matrimonial home b. Childcare c. Companionship d. Management of family business or property e. Farm work 108. Kenyan courts have repeatedly emphasized that both forms of contribution must be considered. 109. In Echaria v Echaria [2007] eKLR, the Court of Appeal held: “ A spouse’s beneficial interest in matrimonial property ultimately depends on proof of contribution, whether direct or indirect.” 110. Similarly, in PWK v JKG [2015] eKLR, the Court of Appeal observed: “ Where it is difficult to ascertain the exact contribution of each spouse, courts may apply equitable principles to arrive at a fair distribution.” 111. In the present case, the Applicant testified that he contributed through his employment income and through supporting the family and paying school fees for the children. 112. The Respondent, on the other hand, produced documentary evidence demonstrating that she operated businesses under the name [Particulars Withheld] Enterprises and obtained several bank loans used to acquire properties. 113. The Court is satisfied that both parties made contributions toward the acquisition and development of some of the properties, albeit in different forms. 114. The Applicant’s contribution appears to have been primarily through employment income and support for the family, while the Respondent actively engaged in business and secured loans used to purchase properties. 115. This Court is guided by the principle articulated in Francis Njoroge v Virginia Wanjiku Njoroge, Civil Appeal No. 179 of 2009, where the Court held that: “ Division of matrimonial property is not a mathematical exercise, but an equitable process based on the peculiar circumstances of each case.” III. Whether certain properties fall outside matrimonial property 116. The Court must also determine whether certain properties should be excluded from the pool of matrimonial property. 117. The Applicant admitted that: Narok/Cis-Mara/Nkoben/x2 and Kajiado/Kitengela/4xx5 were acquired before the marriage. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4075/eng@2026-03-27 14

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118. Property acquired before marriage generally does not constitute matrimonial property unless it was substantially improved during the marriage using matrimonial resources. 119. This principle was affirmed in Muthembwa v Muthembwa [2002] 1 EA 186 (CA) where the Court of Appeal held that property acquired prior to marriage remains separate property unless evidence shows contribution by the other spouse during the marriage. 120. The Court therefore finds that the two properties acquired before the marriage do not form part of matrimonial property. 121. Similarly, the evidence shows that Ololulunga LR No. 12xx7 was the subject of Narok ELC Case No. 89 of 2019, where ownership was determined in separate proceedings. The Court will therefore refrain from making determinations inconsistent with that judgment. IV. What orders should issue regarding distribution 122. Having determined which properties constitute matrimonial property, the Court must now determine the appropriate distribution. 123. The Court is guided by the equitable principle expressed in Gissing v Gissing [1970] 2 All ER 780, where Lord Pearson stated: “ The court must do the best it can in the circumstances to reach a fair result, even where the evidence does not permit precise calculation.” 124. Kenyan courts have also adopted the equitable maxim that “equality is equity” where contributions cannot be precisely quantified. 125. In TMW v FMC [2018] eKLR, the Court of Appeal reiterated that: “ Where the respective contributions of spouses cannot be precisely determined, the court may resort to equitable distribution.” 126. In the present case, the Court finds that both parties contributed toward the acquisition of several properties during the marriage. 127. However, the Court also notes that: 128. a. The Applicant currently occupies and derives income from certain properties. b. The Respondent operates businesses and has developed other properties. Taking all these circumstances into account, the Court is satisfied that a fair and equitable distribution must ensure that both parties retain reasonable portions of the matrimonial assets. G. Conclusion 129. Having considered the pleadings, evidence, and applicable law, the Court finds that: a. Several of the disputed properties were acquired during the subsistence of the marriage and therefore constitute matrimonial property. b. Some properties were acquired before marriage or after separation and therefore fall outside the scope of matrimonial property. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4075/eng@2026-03-27 15

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c. 130. Both parties made contributions toward the acquisition of certain properties, though the extent of those contributions cannot be precisely quantified. Accordingly, the Court will proceed to make final orders regarding the distribution of the matrimonial property. G. Final Orders 131. Having carefully considered the pleadings, the evidence tendered by the parties, the written submissions, and the applicable law, the Court now proceeds to issue the final orders necessary for the just determination of this dispute. 132. The Court reiterates that the guiding legal framework in the determination of matrimonial property disputes is found in Article 45(3) of the Constitution of Kenya, 2010, together with Sections 2, 6, 7, and 14 of the Matrimonial Property Act, 2013. These provisions establish that spouses are entitled to equal rights during marriage and upon its dissolution, but the distribution of matrimonial property must be based on the proven contribution of each spouse. 133. In PNN v ZWN [2017] eKLR, the Court of Appeal emphasized that Article 45(3) does not automatically translate into a mandatory 50:50 division of matrimonial property. Rather, the Court must examine the respective contributions of the parties, whether monetary or non-monetary. Similarly, in Echaria v Echaria [2007] eKLR, the Court of Appeal held that beneficial interests in matrimonial property must be determined based on each party’s contribution. 134. Having applied these principles to the facts of the present case, the Court has reached the conclusion that several of the properties listed by the parties were acquired during the subsistence of the marriage and therefore qualify as matrimonial property. However, some properties were acquired after the parties had separated in 2013 and therefore fall outside the scope of matrimonial property. 135. In light of the foregoing findings, the Court now makes the following orders: Declaration of Matrimonial Property i. ii. The Court hereby declares that the following properties were acquired during the subsistence of the marriage between the Applicant and the Respondent and therefore constitute matrimonial property within the meaning of Section 6 of the Matrimonial Property Act, 2013: a. Mungu Tulinde Plot No. 1x4 b. Cis Mara/ Koiyaki Dagurugureti LR. No. 4x5 c. Cis Mara/Ololulunga LR No. 13xx3 d. Cis Mara/Ololulunga LR No. 13xx9 e. Plot No. 1x0 Properties Excluded from Matrimonial Property a. The Court further finds that the following properties were acquired after the parties had separated in 2013 and were not proven to have been acquired through joint efforts of the parties. They therefore do not constitute matrimonial property: b. [Particulars Withheld] Bar and Restaurant c. After [Particulars Withheld] Plot (MW's residence) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4075/eng@2026-03-27 16

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d. Plot behind [Particulars Withheld] e. These properties shall therefore remain the exclusive property of the Respondent. f. The Court finds that the properties listed as Opposite [Particulars Withheld] Plot, [Particulars Withheld] Farm, [Particulars Withheld] Farm, Keroka Plot, Kebenei Plot, Cis Mara LR No. 13xx7, and motor vehicle registration number KAQ xxxM were not proved to exist or to be owned by either party, or consequently, no orders shall issue in respect thereof. iii. In view of the determination in Narok ELC Case No. 89 of 2019 regarding ownership of Ololulunga LR No. 12xx7 ([Particulars Withheld] Hall), this Court declines jurisdiction to reopen the issue, and the said property is hereby excluded from the pool of matrimonial property. iv. Distribution of Matrimonial Property a. Although the law does not mandate equal distribution, this Court finds that in the present case, both parties made substantial contributions—both monetary and nonmonetary—towards the acquisition and development of the matrimonial properties. Given the nature of the evidence, and the difficulty in precisely quantifying each party’s contribution, the Court is persuaded that an equal distribution meets the ends of justice. b. Taking into account the evidence on record, the respective contributions of the parties, and the equitable considerations governing matrimonial property disputes, the Court orders that; the matrimonial properties listed in paragraph 136 above shall be shared equally between the Applicant and the Respondent. Accordingly: v. c. Mungu Tulinde Plot No. 1x4 shall be shared equally between the parties. d. Cis Mara/Koiyaki Dagurugureti LR No. 4x5, being registered in the joint names of the parties, shall remain jointly owned, and the income derived therefrom shall henceforth be shared equally between the Applicant and the Respondent. e. Cis Mara/Ololulunga LR No. 13xx3 shall be subdivided, and the remaining portion shared equally between the parties after the portion previously sold to the third-party purchaser is formally transferred. f. Cis Mara/Ololulunga LR No. 13xx9 shall be shared equally between the parties. g. Plot No. 1x0, In light of the conflicting evidence regarding the status of Plot No. 1x0, the Court directs that its current status be ascertained. In the event that the property has been sold, the proceeds thereof shall be accounted for and shared equally between the parties. Income Derived from Matrimonial Property a. The Court further finds that the Applicant has been in exclusive possession and control of certain matrimonial properties and has been receiving income therefrom since the parties separated in 2013. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4075/eng@2026-03-27 17

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vi. b. In the interests of equity and fairness, the Court directs that future income derived from the matrimonial properties shall be shared equally between the parties. c. Where necessary, the parties shall open a joint account into which rental or lease income from the matrimonial properties shall be deposited for equal distribution. d. With respect to Cis Mara/Koiyaki Dagurugureti LR No. 4x5, the Court notes that the property is registered in the joint names of the parties and has herein been found to constitute matrimonial property. Evidence on record demonstrates that the same was leased to a third party and that the Applicant has, since 2019, exclusively received lease proceeds therefrom to the exclusion of the Respondent. In law, income derived from matrimonial property forms part of the beneficial interest accruing to the spouses, and where such property is jointly owned, there arises a presumption of equal entitlement under Section 14(a) of the Matrimonial Property Act, 2013 and Section 93(2) of the Land Registration Act, 2012. Guided by the principles set out in MNK v POM; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] eKLR (Supreme Court) and Echaria v Echaria [2007] eKLR, the Court finds that the Applicant held the said proceeds in trust for both parties. Accordingly, the Court hereby orders the Applicant to render a full account of all lease income received from the said property from the year 2019 to date, and to pay to the Respondent one-half (½) of the net proceeds received, after any lawful deductions. For the avoidance of doubt, all future income arising from the said property shall be shared equally between the parties, and where necessary, the same shall be deposited in a joint interest-earning account in the name of both parties. e. The Court further notes that the Applicant has been in exclusive possession of Mungu Tulinde Plot No. 1x4 and has been receiving rental income therefrom since 2013. The Applicant shall render accounts of all income received from the said property from 2013 to date, and remit one-half (½) of the net proceeds to the Respondent. Liberty to Apply In the event that the parties are unable to agree on the mode of subdivision, valuation, or sale of any of the properties, either party shall be at liberty to apply to the Court for further directions. viii. Costs This being a dispute arising from a former matrimonial relationship, and taking into account the nature of the dispute, the Court is of the view that it is appropriate for each party to bear their own costs. 136. Accordingly, each party shall bear their own costs of the suit. It is so ordered. DATED, SIGNED, AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS 27TH DAY OF MARCH,2026. CHARLES KARIUKI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4075/eng@2026-03-27 18

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