Soo v Fho & 1 other

and the plaintiff and the children left the property. Subsequently, the marriage was dissolved. The parties recorded a consent, where custody of the children was granted to the plaintiff, and an order was made for the plaintiff and the children to go back to Bukhayo/Bugengi/XXXX. She avers that the 1st defendant had purported to sell Bukhayo/Bugengi/XXXX to the 2nd defendant, after removing a caution that had been registered against the title. 3. She has annexed documents to her affidavit, to support her case. There is a sale agreement, executed on 16th March 1993, between VE and the 1st defendant, for Kshs. 25,000.00, in respect of sale of 0.05 Ha, out of Bukhayo/Bugengi/XXXX, in the presence of the plaintiff and another. There is a consent of the Land Control Board, for transfer of Bukhayo/Bugengi/XXXX, in favour of the 2nd defendant, executed by the 1st defendant. There is a certificate of official search, dated 4th April 2023, reflecting a caution, registered against the title in Bukhayo/Bugengi/XXXX, filed on 4th April 2023. There is a copy of the caution, dated 3rd April 2023, presented by the plaintiff, claiming matrimonial or beneficial interest. There is a letter, dated 3rd April 2023, from the Assistant Chief of Amerikwai Sub-Location, where Bukhayo/Bugengi/XXXX is situated, stating that the plaintiff resided in that area. 4. The 1st defendant reacted by filing an affidavit sworn on 11th March 2025. He asserts to have been the owner of South Teso/Angoromo/3415, which he sold after it was left unused. He states that he bought it using his own resources, without any contribution from the plaintiff. He argues that the plaintiff has not provided any proof of her contribution to the purchase of the property. He states that the plaintiff came from Uganda, and had nothing to contribute. 5. The 2nd defendant responded to the claim, by way of a replying affidavit, sworn on 10th August 2023, limited to the issues that touch on him. He states that he did enter into a sale agreement with the 1st defendant, over the suit property, after he had conducted due diligence, at the Busia Lands Registry. He fully paid for the land, and the title was transferred to his name. He asserts that he would suffer loss, should the property be declared to be matrimonial property, as he would be denied the right to access, occupy and use the same as legal owner. He urges for dismissal of the claim, or, in the alternative, reimbursement of Kshs. 1,500,000.00, being the purchase price he paid for the land. The 2nd defendant has attached a copy of the sale agreement, executed on 20th March 2023, between him and the 1st defendant. 6. The matter was canvassed by way of viva voce evidence, based on affidavits and witness statements. The oral hearing began in earnest, on 11th March 2025. 7. The plaintiff was the first to take to the witness stand. She described herself as the customary law wife of the 1st defendant, with whom she lived until 2000, and divorced by judicial decree in 2002. She stated that she did not know the 2nd defendant, after he began to claim that the land was his, after he had bought it from the 1st defendant, she asserted that the land was hers, although registered in the name of the 1st defendant, for she was the one who paid for it, for the 1st defendant was unemployed at the time. She asserted that he did not contribute a dime to the purchase price. She stated that he was only registered as proprietor, in his capacity as her husband, and the head of their home. She stated that at divorce court, it was ordered that she should be allowed to go back to the land, with the children, but the order was not complied with. 8. She said that she still collected rent from the land. She stated that they had children, born in 1989, 1991, 1992 and 1995. She stated that she was in the mitumba business, while the 1st defendant was not working. She explained that she filed a caution against the title, when she established that the same had been sold. She said that she did not support the sale of the land. She said that the 1st defendant was removed from the land in 2000. She testified that there was a house, where the family used to reside, and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4919/eng@2026-04-15 2

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trees that she had planted. She said that she moved out of the house, for security reasons, and rented the house out. She said that after the sale to the 2nd defendant, he put in some people in the house, when she protested, they moved out, but vandalised the house. 9. During cross-examination, by Mr. Omeri for the 1st defendant, she stated that she and the 1st defendant were not mere friends, but persons who were married to each other since 1989. They lived together, and had children. She stated that she had a court document, showing that they had divorced, although she did not produce it in court. She testified that separation was in 2000, followed by divorce. She said that the land was bought during matrimony, in 1993, and not after separation. She stated that she paid Kshs. 25,000.00 for the land. She asserted that the money came from her, and, after the full purchase price was paid, in 1999, the land was transferred to the name of the 1st defendant. She stated that the 1st defendant was working, when they got married, but he lost his job. She described their marriage as stormy, characterised by violence. 10. When cross-examined by Mr. Were, for the 2nd defendant, she stated that she was illiterate, and could not tell the land reference number for the land, nor its acreage. She asserted that she bought the land, and it was transferred to the name of the 1st defendant, so that, by the time the 1st defendant sold it to the 2nd defendant, it was in the name of the 1st defendant. She said that she left the land in 2000. She said that she had a borehole on the land, and the 2nd defendant had also dug his. She also asserted that she had a house on the land. She said she did not know about dowry, for daughters usually did not know when dowry was paid. She stated that she did not know that the 1st defendant had another wife, but at the time they contracted marriage in 1989, he did not have a wife. She explained that the firstborn child died, and was buried at Funyula, the ancestral home of the 1st defendant. 11. The plaintiff called a witness, OM. He was a child of the plaintiff and the 1st defendant. He said that their parents had 4 children. He explained that the family used to live on the land in dispute, but they moved out, after their parents had issues, and police were involved. He stated that they still utilised the land. He said that their personal property was moved to Funyula, his grandfather’s home. He said that they were moved by force, in 2000. He said that their parents bought the suit land jointly, as a family, with the plaintiff providing the money, but the land was registered in the name of the 1st defendant. He was 1 year old in 1993, and 8 years old in 2000. He stated that they, the children, were taken to Funyula, and the plaintiff would visit them, but they would be hidden from her. Eventually, they were taken to court, and handed over to the plaintiff. He stated that the land was their boma. 12. The 2nd defendant testified next. He stated that he was not aware that the divorce was in 2000, saying that he bought the land in 2003. He stated that when he bought it, the land was bushy. He said that the land was registered in the name of the 1st defendant, in 1999. He disclosed that the 1st defendant had informed him that he had had a wife, but they had divorced in 2000. He said that he had carried out a search, and established that the land was in the name of the 1st defendant. He asserted that he bought the property after the 2 had divorced. He stated that there was no one in occupation. He said that neighbours informed him that the land belonged to the 1st defendant, and that his wife had left, and was married in Uganda. He stated that there was an old house, which had fallen. He sunk a borehole on the land, after he bought the property. He said that he was not aware of any caution on the land, and that, at the time of the sale, the 1st defendant said that he had no wife. 13. The 1st defendant testified last. He identified the plaintiff as his second wife. He said that he sold land to the 2nd defendant. He stated that he had 4 children with the deceased, and some of the children had died, and were buried at their ancestral home. He stated that he bought land for the plaintiff, in Uganda and at Stadium. He stated that the land he sold to the 2nd defendant was where he resided with his 2 wives, and he disposed of it to sort out some personal issues. He said it was his land, which he https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4919/eng@2026-04-15 3

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could sell at any time. He said that the first wife was settled at Funyula, and the plaintiff at Stadium and Uganda. He said that the land he sold was his solely. He said that the plaintiff was present when he bought the land. He said he did not buy the land for the plaintiff, but for himself. He stated that he put up a structure on the land, which was his boma. He said that when he sold the land, to the 2nd defendant, he could not get the plaintiff involved, as she had ceased to be his wife, and had, at one time, attempted to kill him.. 14. The parties filed written submissions and cited judicial precedents. I have read the written submissions, and noted the arguments made. 15. The issues, for determination, are whether the property is matrimonial property, jointly owned by the plaintiff and the 1st defendant; whether the plaintiff and the children are entitled to exclusive possession and ownership of the said property; whether the sale of the said land to the 2nd defendant was null and void ab initio; and what other consequential orders are to be made. 16. The most recent decision on these matters is that in JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae) [2023] KESC 4 (KLR)(Mwilu, Ibrahim, Wanjala, Ndung’u & Lenaola, SCJJ), where several principles were stated: that the equality principle in Article 45(3) of the Constitution did not empower the court to vary existing proprietary rights of the parties, and the other party is not entitled to a share in such property merely on account of marriage; that the guiding principle in apportionment and division of matrimonial property is that the same could only be done on the basis of what each party contributed to the acquisition of the property; among others. See also TKM v SMW [2020] eKLR (Ouko P, Musinga & Gatembu, JJA). I shall bear these principles in mind as I determine the issues that arise herein. 17. What constitutes matrimonial property is defined in section 6(1) of the Matrimonial Property Act, to mean the matrimonial home or homes; household goods and effects in the matrimonial home or homes; or any other immovable and movable property jointly owned and acquired during the subsistence of the marriage. It excludes property held under trust, according to section 6(2). Section 5 makes exclusions, so that property acquired or inherited before marriage is excluded from the definition of matrimonial property. Section 9, however, provides that property acquired prior to marriage, including that which is inherited, could become matrimonial property, upon the other spouse contributing upon its improvement. The definition of matrimonial home in section 2 could also be relevant, to mean property occupied or utilized by spouses as their family home, including homes owned or leased by one or both spouses. 18. There is not dispute that the property in question was acquired when the plaintiff and the 1st defendant were married. It is also not in dispute that it was developed over that period, by way of a house being put up on the land. Both the plaintiff and the 1st defendant describe it as a boma. There is a conflict as whose boma it was. The plaintiff asserted that she was the one who provided the money for the purchase of the land, as the 1st defendant was not working, and that she built the house that was on that land, and it was her home. Her son testified that the family lived there, before it scattered in 2000. The 1st defendant asserts that he had settled the plaintiff, as his spouse, on different pieces of land, at Stadium and in Uganda, and that he had set up the house on the land as his own boma. 19. So, was this property matrimonial? I believe it was. It was acquired during coverture, and a presumption arose, that it was meant to be matrimonial property. It would be up to whoever is asserting to the contrary to provide evidence to counter that presumption. That presumption favours the plaintiff, given that the land was registered in the name of the 1st defendant, and it was up to the 1st defendant to establish that that presumption did not arise, or apply, in the circumstances. Other than his oral https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4919/eng@2026-04-15 4

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testimony, the 1st defendant provided no concrete evidence, that the acquisition of the property was not intended to add onto the family wealth, but was, instead, to be his own or personal wealth. 20. Of course, there is the other truism, that the mere fact that property was acquired during matrimony does not make it matrimonial property, for entitlement to matrimonial property is founded on contribution. The plaintiff asserted that the money used to acquire the property came solely from her, and the 1st defendant contributed nothing, although the property was eventually registered in his name. However, the plaintiff did not provide any concrete evidence, that the money used to buy the land came from her exclusively. The 1st defendant also did not adduce any concrete evidence that it was his money which bought the land. He relies on the fact of registration. However, that of itself is not always concrete evidence, for it is not uncommon, in African families, for the wife to acquire property, and for it to be registered in the name of the husband. 21. Based on the above, there is inadequate proof, from both sides, on how they contributed, financially, to the acquisition of the land. There is no money trail. No tracing can be made of who provided the cash, for buying the land. I only have the word of mouth from each side. No evidence was adduced on what the 2 did for a living, that could earn them enough money, at that time, to acquire that property. The plaintiff claimed that she was in the mitumba business. However, no concrete proof was provided of that. She alleged that the 1st defendant was not working, for he had been sacked from his job. There was no proof of that. The 1st defendant himself did not talk about that aspect of his life, when he testified. Of course, there was evidence that the 2 were in a marriage, and had 4 children, and it would appear that the plaintiff was taking care of them, at that time, for they were still of minority age, and needed maternal care. In view of such shallow evidence on contribution, I am left with no option, but to find that the 2 contributed equally to the acquisition of the property. 22. It is not disputed that the 2 were husband and wife. Both were in agreement that the marriage collapsed. The plaintiff alleged that there was a formal divorce decree, but no concrete evidence was adduced, for no court papers, as evidence of that formal divorce, were tabled. I shall, however, in the circumstances find and hold that the 2 are no longer husband and wife. 23. Was that land the boma for the plaintiff? Both sides testified that there was a boma on the land. The dispute is on whose boma it was? The plaintiff asserted that that was her home, from where she was forced out in 2000. That evidence was supported by PW2. The 1st defendant prevaricated on that. He initially claimed that his 2 wives resided on that land. Then he later shifted ground, to say that he had settled the first wife at Funyula, and the plaintiff at Stadium and Uganda. I understood that to mean that the boma for the first wife was at Funyula, while that for the plaintiff was either in Uganda or at Stadium, or at both places. Yet, the 1st defendant led no concrete evidence, to establish that he had, indeed, set up a boma at Stadium or in Uganda, for the plaintiff. No title documents were exhibited, of the land in Uganda or at Stadium, acquired by him, where a home or homes had been set up for the plaintiff. The only property that was proved to be in the name of the 1st defendant is the suit land herein. 24. There is evidence, from the concurrence in the testimonies of the plaintiff, PW2 and the 1st defendant, that there was a boma or a home in that land. But whose boma was it? A boma is a home, in Kiswahili, as distinct from a house. Families live in bomas. In African tradition, a man cannot have a boma where he lives alone. It is not customary for a man to settle his wife or wives in their own bomas, then he sets up one for himself, away from those of the wives. In the absence of proof of property in Uganda or at Stadium, and in view of the testimony that the other wife was settled at the ancestral home at Funyula, it would follow that the land in dispute is where the boma for the plaintiff was established. It was her matrimonial home, and, apparently, the only matrimonial property that she is laying claim to. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4919/eng@2026-04-15 5

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25. Having established that the suit property was matrimonial property, for both the plaintiff and the 1st defendant, the next consideration should be on how the same should be shared out, given that the marriage between them is dissolved or non-existent. I believe I have already disposed of that above, by finding and holding that the property was acquired on a 50:50 basis, and its division should follow the same pattern. 26. The only other issue for consideration would be the fate of the 2nd defendant. He bought property that was clearly matrimonial, having been the matrimonial home for the plaintiff and the 1st defendant, before their marriage fell apart. Being matrimonial property, it could not be disposed unilaterally, by one of the former spouses or beneficial co-owners, in a manner that defeats the beneficial interest of the non-consenting co-owner. The registered proprietor held the property in trust for, or for the beneficial interest of, the other spouse. He could not dispose of the property without her consent. In the absence of her consent, he was required to obtain the order of the court, by way of having the court pronounce on the sharing of the property before going ahead to dispose of it. The effect of that would be that the said sale was shaky, it lacked propriety and legality. It stands to be nullified, to secure the interest of the plaintiff as a beneficial co-owner of the property. 27. The final orders are: a. That I declare that Bukhayo/Bugengi/XXXX is matrimonial property, to be shared equally between the plaintiff and the 1st defendant; b. That Bukhayo/Bugengi/XXXX shall be valued, within the next 6 months, with both sides sharing the valuation costs equally, after which the 1st defendant shall pay 50% of its value to the plaintiff, within 6 months of the valuation; c. That, in default of the above happening, within the 1-year period given, in the order above, the plaintiff shall be at liberty to cause the said property to be sold, and the proceeds of sale shared equally between the said 2 parties hereto; d. That to facilitate execution of (b) and (c), above, the Busia Land Registrar shall cause cancelation of the registration of the 2nd defendant as proprietor, and register the same in the names of the plaintiff and the 1st defendant as co-owners in equal shares, pending implementation of (b) and (c), above; e. That the 2nd defendant shall recover the moneys he paid for the property from the 1st defendant; and f. That each party shall bear their own costs. DELIVERED, VIA EMAIL, DATED AND SIGNED IN CHAMBERS, AT BUSIA, THIS 15TH DAY OF APRIL 2026. W MUSYOKA JUDGE Mr. Arthur Etyang, Court Assistant. Ms. Obat, instructed by Mukongolo & Company, Advocates for the plaintiff. Mr. Omeri, instructed by Omeri & Associates, Advocates for the 1st defendant. Mr. Were, instructed by Fwaya Masakhwe Were & Company, Advocates for the 2nd defendant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4919/eng@2026-04-15 6

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