Ewm v Zkn

d. 3. 4. The respondent shall bear the costs of this summons. The application is premised on the following grounds: a. That there was a marriage between the applicant and the respondent. b. That the applicant and the respondent have since separated and their marriage dissolved absolutely, vide Thika CMCC Divorce Case No. 66 of 2020 EWM – vs ZKN. c. That both the applicant and the respondent contributed both directly and indirectly towards the acquisition of the matrimonial properties. d. That the parcels of land, namely Nyandarua/Olkalou Central /2124, Nyandarua /Olkalou West /1122, Juja /Kalimoni Block1/213, Plot Number T31-Kali/Kahawa West, within IR No. 8569/6, Olkalou plot LR No. P-25, Laikipia/Nyahururu/9144, and the stall in Olkalou Town Market, registered solely in the respondent’s name, are held in trust for the applicant. In his opposition, the respondent stated as follows: a. The applicant did not prove a contribution to the purchase of the properties. b. That she is not entitled to more than 10% share. 5. At the time of their marriage in 1991, the applicant and the respondent were both teachers. The marriage was solemnized on the 29th day of November 2003. 6. During the subsistence of their marriage, the parties herein acquired some property. These properties are: 7. a. Nyandarua/Ol Kalou Central/2124, b. Nyandarua/Ol Kalou West/1122, c. Juja/Kalimoni Block 1/213, d. Plot number T31-Jua kali/Kahawa West within IR No. 8569/6, e. Ol Kalou Plot LR No. P-25, f. Laikipia/Nyahururu/9144, g. Stall in Ol Kalou Town Market. Matrimonial property includes jointly owned homes, investments, land, and other assets acquired during marriage. Section 6(1) of the Matrimonial Property Act states: For this Act, matrimonial property means- 15. 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. Both parties agree that these properties are matrimonial. Their disagreement lies in the method of sharing: the applicant proposes an equal division, while the respondent proposes 90% in his favour and 10% in the applicant's. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5032/eng@2026-04-21 2

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16. When they began living together as husband and wife, both were teachers. It was undisputed that they were roughly at the same grade level. The applicant provided her payslips, but the respondent did not. 17. I would therefore be justified in concluding that both were earning comparable salaries. 18. The applicant provided three receipts indicating that the two purchased several properties jointly. In a marriage, it can be difficult to precisely establish each person's contribution unless it was documented in writing. A detailed record at the time of purchase is typically not expected when parties relate well. I may not strictly apply the maxim “Equality is equity” as mentioned in Echaria (infra). However, I will temper this maxim by considering the circumstances of this case and the evidence available. The Supreme Court of Kenya in Joseph Ombogi Ogentoto v Martha Bosibori Ogentoto, Petition No. 11 of 2020, held as follows: …we also find that Article 45(3) acts as a means of providing for equality as at the time of dissolution of marriage, but such equality can only mean that each party is entitled to their fair share of matrimonial property and no more. Nowhere in the Constitution do we find any suggestion that a marriage between parties automatically results in common ownership or coownership of property (hence vesting of property rights) and Article 45(3) was not designed of the purpose of enabling this court to pass property rights from one spouse to another by fact of marriage only……our view is that, while Article 45(3) deals with equality of the fundamental rights of spouses during and after dissolution of marriage, we must reiterate that equality does not mean the re-distribution of proprietary rights at the dissolution of a marriage. Neither does our reading of this provision lead to the assumption that spouses are automatically entitled to a 50% share by fact of being married……it is our finding that the stated quality under Article 45(3) means that the courts are to ensure that at the dissolution of a marriage, each party to a marriage gets a fair share of the matrimonial property based on their contribution. This is best done by considering the respective contribution of each party to ensure no party is unfairly denied what they deserve, as well as ensuring that no party is unfairly given more than what he or she contributed……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 Tuiyot, 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. 15. In this case, the applicant acknowledged that the land parcel Laikipia/Nyahururu 9144 was purchased when she went back to college and admitted she did not contribute financially towards its purchase. Therefore, she cannot claim a share of it. 16. The applicant, having proved on a balance of probabilities, her contribution in the acquisition of parcels of land Nyandarua/Ol Kalou Central/2124, Plot number T31-Jua kali/Kahawa West within IR No. 8569/6 and Ol Kalou Plot LR No. P-25 She is entitled to 50% of each property. 17. The couple ran a hardware business called [Particulars Withheld], which the applicant claims is an acronym of Z and E. I have no reason to doubt this. Given the circumstances of this case and that the two were investment-conscious, I also have no reason to doubt the applicant's assertion that this was a joint venture. Properties such as Nyandarua/Ol Kalou West/1122, Juja/Kalimoni Block 1/213, and a https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5032/eng@2026-04-21 3

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stall in Ol Kalou Town Market were very likely purchased with their business proceeds. It was admitted that the respondent started the business. Since the contributions of each are unspecified, I will grant the applicant a 30% share of these properties. 18. In Peter Mburu Echaria v Priscilla Njeri Echaria [2007] KECA 504 (KLR, the Court of Appeal held: Where the disputed property is not so registered in the joint names of the spouses but is registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective proportions of financial contribution, either direct or indirect, towards the acquisition of the property. However, in cases where each spouse has made a substantial but unascertainable contribution, it may be equitable to apply the maxim “Equality is equity” while heeding the caution by Lord Pearson in Gissing v Gissing (supra) at page 788 paragraph c that: No doubt it is reasonable to apply the maxim in a case where there have been very substantial contributions (otherwise than by way of advancement) by one spouse to the purchase of property in the name of the other spouse but the portion borne by the contributions to the total purchase price or cost is difficult to fix. But if it is plain, that the contributing spouse has contributed about one-quarter, I do not think it is helpful or right for the court to feel obliged to award either one-half or nothing. 15. Considering the current relationship between the two parties, it may not be easy for them to agree on how to divide the properties. If they fail to reach an agreement, the properties should be valued, and once this is done, the sharing formula can be determined through mediation. 16. This being a family matter, each party will bear its costs. DELIVERED AND SIGNED AT NYANDARUA, THIS 21ST DAY OF APRIL 2026 KIARIE WAWERU KIARIE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5032/eng@2026-04-21 4

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