Ba H-o v Aca-o

4. The joint tenancy in the matrimonial home established in Ramunde sub–location, East Ugenya Location, Siaya District, be severed and each party accorded an independent 50% share of the same. 5. Value of the Ramunde house be established by an independent valuer to be agreed upon by the parties within seven (7) days of this order. 6. L.R. Number 21/1/XXX and L.R. Number 21/1/XXX be distributed within six (6) months of this order in one of the following ways: a. L.R. Number 21/1/XXX and L.R. Number 21/1/ XXX be transferred solely to the Applicant in consideration of 50% of the value established under paragraph 2 above, to be paid by the Applicant to the Respondent; or in the alternative. b. L.R. Number 21/1/XXX and L. R. Number 21/1/ XXX be transferred solely to the Respondent in consideration of 50% of the value established under paragraph 2 above to be paid by the said Respondent to the Applicant. 2. The application is based on the grounds thereof and supported by affidavit sworn by BAH - O on 17th April, 2014. 3. The application was opposed vide the Respondent’s replying affidavit sworn on 11th June 2014 together with annexures thereto. 4. The court after several applications directed the matter to proceed by way of oral evidence. Both parties testified and they did not call any witnesses. They relied substantively on their bundle of documents. 5. After they closed their cases, they each filed written submissions. 6. Before looking at the said submissions it is appropriate at this juncture to summarize the evidence as presented.Top of Form 1. Bottom of Form 7. Brigitte Ann Hillen-Ogutu, the Applicant while relying on her witness statements and bundles of documents or exhibits, testified that the properties in dispute were acquired and developed during the subsistence of the marriage through joint effort, although she maintained that she bore a substantial portion of the financial responsibility. 8. She stated that she contributed to the construction and improvement of the properties, including financing building materials, repairs and general maintenance, albeit without retaining complete documentary evidence of such contributions. 9. She for instance stated that she contributed a total sum of 1 million dollars towards the purchase of the Roslyn properties. 10. She emphasized that the developments, particularly residential and rental units, were intended for family use and generated income applied towards household needs. She further testified that she was actively involved in the management of the properties, including overseeing tenants and maintenance, but was subsequently denied access by the Respondent. 11. She stated that her attempts to access the premises and manage tenants were frustrated and that some tenants were prevented from occupying or accessing the property. She maintained that the Respondent assumed exclusive control over the properties and the rental income derived therefrom without rendering any account to her. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5499/eng@2026-04-30 2

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12. She also raised concerns regarding unilateral dealings by the Respondent, stating that certain transactions, including transfers and other dispositions of property, were undertaken without her knowledge or consent. She alleged that some documents relied upon in those transactions were irregular and suggested that her signature may have been forged. She further testified that she did not benefit from proceeds arising from such transactions and only became aware of some dealings after they had been completed. 13. On financial matters, she maintained that she contributed significantly to the family’s upkeep, including payment of school fees, utilities and other household expenses and that she took loans to support both the family and property development. She also testified to the existence of other assets, including funds and properties held locally and abroad and asserted that there had been no full disclosure or proper accounting by the Respondent in respect of such assets. 14. In cross-examination, the witness conceded that she did not possess complete documentation evidencing her financial contributions and that some transactions occurred several years prior. She further acknowledged that certain properties were registered solely in the Respondent’s name. Nonetheless, she maintained that her contributions, both financial and non-financial, were substantial and that the properties were acquired during the marriage, thereby entitling her to a beneficial interest and an equitable share upon distribution. 15. The flat in Germany for instance belonged to her mother and the ranch in Colorado was long sold. 16. Aggrey Christopher Ackello-Ogutu the Respondent, testified that the matrimonial properties were acquired and developed through joint effort, primarily financed from pooled family resources, including income deposited in joint accounts. 17. He maintained that both parties contributed to the acquisition and development of the matrimonial home and other assets and denied the Applicant’s assertion of exclusive or predominant financial contribution. 18. He stated that funds used for construction and acquisition were drawn from shared accounts, including earnings from his consultancy work and that the Applicant’s role was largely managerial in handling such accounts rather than sole financier. 19. He testified that being a lecturer at Nairobi University entitled him to some duty-free car facilities and that is how he acquired the vehicles although the Applicant enjoyed the same facility at the United Nations. 20. He further testified that he played a central role in the development and management of the matrimonial properties, including supervising construction works, engaging professionals and overseeing repairs and renovations. He specifically referred to maintenance and restoration works undertaken after damage to the property, stating that he solely incurred the costs of such repairs and through the well-wishers’ contributions. 21. He also indicated that the properties, including the matrimonial home, were of substantial value and continued to generate income, which he utilised for upkeep and related expenses. He disputed the Applicant’s allegations of exclusion, maintaining that she voluntarily left the matrimonial home and that her departure was not occasioned by any denial of access or threat to her safety. 22. He further testified that upon leaving, the Applicant removed her personal belongings and continued to retain control over certain assets, including funds and properties held locally and abroad, which he contended were acquired through joint effort but not disclosed in these proceedings. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5499/eng@2026-04-30 3

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23. He testified that several properties and assets had previously been disposed off by mutual agreement, with proceeds shared between the parties, and that this reflected their recognition of joint ownership. He asserted that additional assets, including foreign properties and funds, remained undisclosed by the Applicant and should be considered in determining the overall distribution. 24. He further stated that he contributed to family expenses, including school fees and general upkeep, contrary to the Applicant’s assertion that she bore sole responsibility. 25. In cross-examination, the Respondent maintained that the evidence demonstrates substantial joint contribution and challenged the Applicant’s claims as exaggerated and unsupported by documentary proof. 26. While expressing willingness to have jointly owned property distributed, he proposed that each party retain specific assets in their possession, including his retention of the matrimonial home, considering his continued occupation, maintenance and financial input. He therefore urged the court to order full disclosure of all assets and to effect a distribution reflective of the parties’ respective contributions. DIVISION - Analysis And Determination 27. I have carefully considered the application, the responses thereto and the rival submissions filed by the parties. 28. The issues falling for determination are whether the properties in dispute constitute matrimonial property, the nature and extent of each party’s contribution and the appropriate mode of distribution. 29. Section 6 of the Matrimonial Property Act No. 49 of 2013 describes matrimonial property to mean the matrimonial home or homes, household goods and effects in the matrimonial home or homes and any other immovable and movable property jointly owned and acquired during the subsistence of the marriage. 30. Section 7 of the Matrimonial Property Act No. 49 of 2013 states that Subject to section 6 (3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved. 31. Section 8 of the Matrimonial Property Act No. 49 of 2013 states that where one spouse acquires property before or during the marriage and the property acquired during the marriage does not become matrimonial property, but the other spouse makes a contribution towards the improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made. 32. In NGV v CNV also known as CHM (Matrimonial Cause 6 of 2021) [2022] KEHC 16645 (KLR) (6 December 2022) (Judgment), at paragraphs 46 and 47, the court quoted with authority the case of TMW vs FMC (2018) eKLR where the court adopted the definition under Section 6 of the Matrimonial Disputes Act No. 49 of 2013 to hold that for property to qualify as matrimonial property, it must have been acquired during the subsistence of marriage unless agreed by both parties that such property will not form part of the matrimonial property. The burden of proof in law lies with the party alleging that such and such property indeed was acquired during the subsistence of the marriage and therefore constitutes matrimonial property. However, the mere fact that property is acquired during coverture does not automatically entitle each spouse or party a share after dissolution of the marriage. One has to prove contribution whether direct or indirect. The onus of proof, however, is subject to a rebuttable presumption of law under Section 14 of 'Matrimonial Properties Act which provides; 'Where matrimonial property is acquired during marriage—(a) In the name of one spouse, there shall https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5499/eng@2026-04-30 4

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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.' 33. The Supreme Court of Kenya in Petition No. 10 of 2020 Joseph Ombogi Ogentoto v Martha Bosibori Ogentoto [2023] agreed with Echaria case on the principles applied for distribution of matrimonial property. It stated thus: “ (78) to our minds the finding in Echaria was essentially that a spouse does not acquire any beneficial interest in matrimonial property by fact of being married only and that specific contribution has to be ascertained to entitle such a spouse a share of the property.” The court went on to emphasize that the spouse seeking a share in the matrimonial property has to prove the extent of his or her contribution to the acquisition or development of the property. It stated: “[83] the guiding principle should be the apportionment and division of matrimonial property may only be done where parties fulfill their obligation of providing what they are entitled to by way of contribution.” 34. It is not in dispute that the parties were lawfully married in 1988 and that the marriage was subsequently dissolved upon conclusion of the divorce proceedings. The properties in question, particularly L.R. No. 21/1/XXX and L.R. No. 21/1/XXX at Rosslyn and the Ramunde home, were acquired and/or developed during the subsistence of the marriage. 35. Under Section 6 of the Matrimonial Property Act, such properties prima facie qualifies as matrimonial property. Further, the Rosslyn properties are registered in joint names, thereby invoking the rebuttable presumption under Section 14 (b) that the parties hold equal beneficial interests. However, that presumption is not absolute and must be weighed against the evidence of actual contribution as required under Section 7 of the Act and the principles set out in the case law cited above. 36. On the question of contribution, both parties advanced competing claims of financial dominance. The Applicant asserted that she solely financed acquisition and development through her UNEP income and loans, while the Respondent contended that the properties were funded through joint accounts, including his consultancy earnings and that he undertook supervisory and managerial roles. 37. The evidence on record demonstrates that although the Applicant earned a higher and more stable income and bore a significant portion of family expenses, including children’s education, the Respondent also made financial contributions through consultancy income deposited in joint accounts. Additionally, his role in overseeing construction and subsequent maintenance cannot be discounted as indirect contribution within the meaning of Section 2 of the Act. 38. The Applicant’s case on exclusive financial contribution is weakened by the absence of comprehensive documentary proof linking her funds directly to acquisition and construction, while the Respondent ’s claim of sole or predominant contribution is equally undermined by the existence of joint registration and admitted pooling of resources. 39. The evidence therefore points not to exclusive ownership by either party but to substantial joint contribution, both direct and indirect. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5499/eng@2026-04-30 5

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40. In respect of the Ramunde property, although it is situated on ancestral land, the uncontroverted evidence shows that the Applicant contributed towards its development. Consequently, she acquired a beneficial interest proportionate to her contribution under Section 8 of the Act. 41. On the issue of control and occupation, the evidence demonstrates that the Respondent has had exclusive possession and has derived benefit from the Rosslyn property, including rental income, since the Applicant’s departure. While the Respondent attributes the Applicant’s absence to voluntary departure, the surrounding circumstances, particularly the admitted breakdown of the marriage and lack of access, justify equitable consideration of her claim for a share of the income and value of the property. 42. Equally, the allegations by both parties of non-disclosure of assets held abroad were not conclusively proved and cannot form a firm basis for adjustment of shares, though they underscore the need for full disclosure in matrimonial disputes. 43. In the premises, and guided by the principle that division of matrimonial property is not based on equality per se but on proven contribution, I find that the Applicant and Respondent each made substantial, though not equal, contributions to the acquisition and development of the matrimonial properties. However, in light of the joint registration of the Rosslyn properties, the long duration of the marriage, the pooling of resources and the significant but difficult-to-quantify indirect contributions by both parties, the presumption of equality has not been sufficiently rebutted. 44. In light of the foregoing this court determines the Amended Originating summons dated 10th April, 2014 by making the following orders: 45. a) The properties known as L.R. No. 21/1/XXX and L. R. No. 21/1/XXX, Rosslyn, constitute matrimonial property jointly owned by the parties. b) The Ramunde property, though situated on ancestral land, is subject to a beneficial interest in favour of the Applicant to the extent of her proven contribution to its development. c) The beneficial interest in the Rosslyn properties as well as Ramunde is hereby determined at 50%:50% between the Applicant and the Respondent. d) The parties shall, within 90 days, agree on a joint valuer to ascertain the current market value of all the properties and elect either a buy-out by one party of the other’s 50% share or sale of the properties and equal division of proceeds. e) In the event of any disagreement, the Deputy Registrar of this court shall be at liberty to appoint a qualified registered valuer who shall undertake the above exercise within 30 days of such a disagreement and further appoint a qualified and a duly registered auctioneer who shall carry out a public disposal of the properties within 30 days thereafter and the amount recovered shall be shared out on 50:50 basis less any liabilities, statutory charges and any other outgoings. f. The Deputy Registrar of this court shall be at liberty to sign any documents in the event that any of the parties is unable to or fails to do so. Each party to bear its costs. DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 30TH DAY OF APRIL 2026. H K CHEMITEI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5499/eng@2026-04-30 6

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