Bnk v Mmm

respondent convinced him that the money was safer with her and so he transferred it to her bank account. To prove that she did not have any ill intentions, the respondent transferred her land property title number Gaturi/Weru/1XXX to their joint names. They identified property title number Mbeti/ Gachoka/5XXX which they intended to purchase for Kshs.450,000/=. The respondent paid the money on their behalf in 2016 and it was held in their joint names. 3. In 2017, they used the remaining pension money to pay for Mbeti/Gachoka/5XXX which was held in their joint names. The petitioner stated that he then sold another of his properties Gaturi/Weru/10650 for Kshs.3,100,000/= and the money was deposited into the respondent’s account. That money was later used to develop Mbeti/Gachoka/5XXX through construction of a house which was completed in 2019. They moved in together but after a few months, the respondent demanded that the joint ownership of Gaturi/Weru/1XXX be reverted to her name alone because her children were not comfortable with that arrangement. 4. In July 2020, the respondent moved out of their home and went to live with her children in Mwea. In July 2020, the respondent stated that she was no longer interested in the relationship and she agreed to return registration of Mbeti/Gachoka/5XXX and Mbeti/Gachoka/5XXX to the petitioner’s name. The respondent signed all the requisite documents but when the petitioner went to pursue registration of the transfers, he found that the respondent had encumbered the properties with cautions. He tried all means to have the respondent remove the cautions to no avail. Replying Afidavit 5. The respondent filed a replying affidavit denying the averments made in the petition. She stated that when she met the petitioner, he was divorced and his former wife had forced him to stop collecting rental income from their investment together through a court order. She stated that she took care of him as they lived together until one day he was informed to collect in pension money which he did. He advised her to keep the money so that his ex-wife would not take it. She kept the money in her bank account as they figured out what to do with it. In the meantime, she added the petitioner as a joint owner of Gaturi/Weru/1XXX, property she had bought earlier and he added her to Gaturi/ Weru/10XXX which belonged to him. 6. Under paragraph 8 of the replying affidavit, she broke down the petitioner’s expenditure of his pension funds that she was holding. She stated that as the petitioner spent his pension money, she looked for and bought Mbeti/Gachoka/5XXX costing Kshs.450,000/= and Mbeti/Gachoka/5XXX costing Kshs.480,000/=. She stated that the amount of Kshs.3,100,000/= used for constructing the house was a loan which their lawyer helped them to secure because the petitioner’s ex-wife would always threaten the petitioner using court orders. She produced her bank account records to prove that she paid workers at the construction every week and she also bought construction materials. She stated that they moved into the new house in December 2018. In 2019, she discovered that while she was away working in Mwea, the petitioner was engaging in a romantic affair in their new house for the whole week, and that the other woman only left on Fridays when the respondent would be coming home. She asked the petitioner to return ownership of Gaturi/Weru/1XXX to her name solely and she left the home they had built. She placed cautions on Mbeti/Gachoka/5XXX and Mbeti/Gachoka/5XXX to safeguard her interest in them since she purchased them and constructed her matrimonial home with her own money. Petitioner’s Further Afidavit 7. In his further affidavit, the petitioner stated that the respondent never fended for his needs even after his retirement because he had several sources of income to meet his financial needs. He denied that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5069/eng@2026-04-22 2

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respondent participated in purchasing Mbeti/Gachoka/5XXX and Mbeti/Gachoka/5XXX and he insisted that they were bought with his pension money. That Mbeti/Gachoka/5XXX was developed with money gotten from the sale of Gaturi/Weru/10XXX. 8. He denied knowledge of any lawyers who acted on their behalf to obtain the money for construction of the matrimonial home. He stated that when the respondent left the matrimonial home and refused to return, she said that she was comfortable with her husband in Mwea. He tried to reconcile with the respondent and even used 3 mediators but the respondent refused to return. According to him, the respondent is seeking to unjustly enrich herself through his money and resources. Summary of the Evidence 9. The matter was heard viva voce. 10. PW1 was the petitioner who adopted his witness statement wherein the averments made were the same as those made in the petition itself. He also produced documentary evidence in support of his case. He prayed that all the properties bought with his money be registered in his name since, currently, they are registered in his name and that of the respondent. In cross-examination, he stated that they lived as husband and wife with the respondent between 2015 and 2019. 11. That in 2016, she put his pension money into her bank account and it is the money, Kshs.1,172,920/= that was used to purchase parcel number Mbeti/Gachoka/5XXX and Mbeti/Gachoka/5XXX costing a total of Kshs.930,000/=. He gave the remaining Kshs.321,000/= to the respondent who needed it for further studies at KEMU University. He stated that the respondent never contributed to acquisition of the properties and he singlehandedly had to look for money to build a house. He stated that he used to maintain the respondent from his rental income of Kshs.120,000/= from his 34 rental units monthly. He used to use the respondent’s car but she took it away. She lived in his house as his wife. 12. RW1 was the respondent who relied on her replying affidavit. She stated that she left the petitioner because he was entertaining another woman while she was with him. In cross-examination, she stated that she met the petitioner in 2014 and they swore an affidavit before they started living together. That at the time, the petitioner had rental houses but he could not access any rental income because his exwife had encumbered the property. 13. She stated that she used to feed and take care of the petitioner since he had no income and when the pension money was paid, he put it into her bank account. She stated that her bank statement did not show that she withdrew Kshs.295,000/= for him from her bank account. She stated that the money used for constructing the house on Mbeti/Gachoka/5XXX was her own and she asserted that she paid the contractor and the workers. She left the petitioner in July 2020 and she went to live by herself. At the time, the petitioner gave her some things but she did not agree to give him anything, even the properties. Parties’ Submissions 14. In his submissions, the petitioner relied on the cases of PNN v ZWN (Civil Appeal 128 of 2014) [2017] KECA 753 (KLR) and Peter Mburu Echaria v Priscilla Njeri Echaria [2007] KECA 504 (KLR). He submitted that the contribution of the respondent towards acquisition of matrimonial property is a key consideration. That the respondent has not provided any proof of contribution towards the matrimonial property. He urged the court to allow the petition. 15. The respondent relied on the meaning of contribution according to section 2 of the Matrimonial Property Act and argued that she singlehandedly acquired the properties even though they are in their https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5069/eng@2026-04-22 3

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joint names. She also relied on section 7 of the Matrimonial Property Act and the case of Federation of Women Lawyers Kenya (FIDA) v Attorney General; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) [2018] KEHC 7130 (KLR). She urged the court to dismiss the petition. Issues for Determination 16. Issues for determination are: 1. What constitutes matrimonial property in this case; and 2. If any, how should the matrimonial property be divided? Analysis and Determination 17. Section 14 of the Matrimonial Property Act provides: “ Where matrimonial property is acquired during marriage— 18. (a) 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.” Matrimonial property is defined under section 6(1) of the Matrimonial Property Act as: “ (1) For the purposes of this Act, matrimonial property means— (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.” 19. A determination of what constitutes matrimonial property is only possible from a consideration of the evidence of a marriage between the parties. Matrimonial property is property acquired during the subsistence of a marriage. In this case, the parties met in 2015 and they started living together as husband and wife until 2019. There is no proof that they were married or were presumed to be married, and that such marriage was dissolved. 20. Proceedings under the Matrimonial Property Act can only commence once a valid marriage under statute or a presumed marriage in law has been dissolved. Further, a declaration of matrimonial property may be made in favour of a spouse during a marriage. Rules 4 and 5 of the Matrimonial Property Rules clarify that matrimonial property proceedings may be instituted by a spouse against the other spouse or former spouse (and 2 other categories of persons). Rule 7 of the Matrimonial Property Rules provides: “ (1) Where, under section 17, a person seeks a declaration of any right to property that is contested between that person and a spouse or a former spouse in a petition made to a court for dissolution of the marriage under the Marriage Act (Cap. 150), the application may be made as part of the relief sought in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5069/eng@2026-04-22 4

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the matrimonial cause in accordance with the Matrimonial Proceedings Rules (sub. leg). (2) 21. Where a spouse seeks to assert a right of claim or interest after the dissolution of the marriage by a decree of a court given in final determination of proceedings under the Marriage Act (Cap. 150), the claim shall be made by way of Originating Summons, returnable before a judge or magistrate,…” In ENN v SNK [2021] eKLR the court found that: “ On whether the petition is fatally defective and ought to be struck out, this Court finds that it is trite law that a matter regarding division of matrimonial property ought/shall have the following facets proved by either party: a) The fact of a valid, legal, regular marriage in law; b) Dissolution of such marriage by/through an order of the Court; c) That earmarked/listed property constitutes matrimonial property; acquired and developed during subsistence of the marriage; d) Contribution by each party to the acquisition/ development. 23. These are factual issues that cannot be litigated at this point. This court has the requisite jurisdiction to hear and determine matters regarding division of matrimonial property and hence has power to hear and determine the instant matter and more specifically on the division of matrimonial property which shall commence upon proof of dissolution of marriage….” [Emphasis added] 22. Without a valid or presumed marriage ever existing between the parties herein, the court cannot exercise its jurisdiction over the matrimonial property proceedings herein. Even though evidence has been given, the court must ignore it and not consider it because the transactions towards acquisition of the land were conducted outside of the marriage setting. It follows that the issue of determination of what constitutes matrimonial property in this case is undeterminable since there is no dissolved marriage preceding these proceedings. 23. Naturally, the issue of how matrimonial property should be distributed is also clearly undeterminable too. At the very least, the transactions between the parties may be held as commercial transactions or land transactions. They definitely do not fall under the matrimonial property characterization. Disposition 24. The petition herein is fatally defective on the aforementioned grounds. Further, the form of institution these proceedings is also flawed in light of Rule 7(2) of the Matrimonial Property Rules which provides that the proceedings should be instituted by way of Originating Summons. 25. For all the foregoing reasons, the petition herein must be dismissed in its entirety. It is so dismissed in the absence of a marriage or dissolved marriage between the parties prior to institution of these proceedings. On that basis, the jurisdiction of the court cannot be exercised. 26. Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 22ND DAY OF APRIL, 2026. R. MWONGO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5069/eng@2026-04-22 5

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Delivered in the presence of: Ombongi holding brief for Rugaita for Petitioner Mageto holding brief for Bwononga Stella Kithinji - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5069/eng@2026-04-22 6

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