Jwm v Cgg

3. That this Honourable Court be pleased to order the sale of the property known as PLOT NO. 2XX (HALF) (unregistered) in Greenfields Estate, Mugumo Off Kamiti Road in Kiambu County together with all the buildings and developments thereon which was acquired during the subsistence of the marriage between the parties and the proceeds from the sale be shared between the Applicant and the Respondent on a ratio of 80 and 20 percent respectively. 4. That the Respondent be ordered to execute any necessary documents for the transfer of PLOT NO. 2XX (HALF) (unregistered) in Greenfields Estate, Mugumo Off Kamiti Road in Kiambu County to an identified buyer within fourteen (14) days of receipt of any such transfer documents. 5. That in default of the above, the Registrar High Court of Kenya be authorized to sign any transfer documents in place of the Respondent to effect all the orders of this court in relation to the sale of PLOT NO. 2XX (HALF) (unregistered) in Greenfields Estate, Mugumo Off Kamiti Road in Kiambu County. 6. That this Honourable Court be pleased to order that all the household items be retained by the Applicant. 7. That the Honourable Court be pleased to make such further or other orders as it may deem just and expedient in the circumstances of this case. 8. That the costs of this application be provided for. 3. The matter was referred for mediation which was partially successful. The parties agreed on some of the issues and entered into a partial settlement agreement. In the report, they agreed that the Property was a matrimonial property and that both parties had contributed towards its acquisition. They also agreed that the Respondent would retain household items namely, washing machine, projector, King size bed, and home theatre. Lastly, they agreed that each party would bear its own costs of the suit. 4. The parties referred the remaining contested issues back to Court for determination and framed them as follows; a. Whether the Respondent is entitled to 80% ratio of the matrimonial property and the Applicant is entitled to 20% ratio of the matrimonial property. b. Whether the Applicant is entitled to 80% of the Matrimonial property and the Respondent is entitled to 20% of the matrimonial property. c. Whether other household items should be shared or retained by the Applicant. 5. The matter went for hearing and both parties gave their oral testimonies before the Court. They also filed their respective submissions which this Court has considered at length. 6. Having considered the amended Originating Summons, the partial settlement agreement, and the submission of the parties, I find that there are three issues for determination, which are basically the three issues that the parties had framed for the Court; a. Whether the Respondent is entitled to 80% ratio of the matrimonial property and the Applicant is entitled to 20% ratio of the matrimonial property. b. Whether the Applicant is entitled to 80% of the Matrimonial property and the Respondent is entitled to 20% of the matrimonial property. c. Whether other household items should be shared or retained by the Applicant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6131/eng@2026-04-29 2

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The evidence on Record 7. Before I determine the three issues, I shall first outline the parties’ oral testimonies and the evidence tendered during the hearing. 8. PW1 was the Applicant. She stated that she is a marketer. She testified that they purchased the Property from one Stanley Kimani in 2013 at Kshs.3,050,000/=. She produced a sale agreement dated 9th April, 2013 which was Exhibit 3, and which indicates that Stanley Kimani was the vendor. She told the Court that she personally paid Kshs.1,130,000.00/= to the vendor and she produced a bank statement Exhibit 17 indicating the transfer to the vendor. 9. She also told the Court that she took a loan of Kshs.1,500,000.00 from her Sacco and transferred the entire loan amount to the vendor. She produced a statement from her Sacco, which was exhibit 17, indicating the transfer from her Sacco account to the vendor’s account. In addition, she testified that she contributed to the construction of the Property through direct financial contribution to the tune of Kshs.1,925,000.00. She produced a statement of her Stima Sacco Account, which was exhibit 17, to support her claims about the said payments. 10. She also told the Court that she contributed by taking care of the home since 2017, having been paying fees, clothes, buying food for them, and paying for school related expenses. She testified that she participated in school extra-curricular activities, medical expenses, did domestic work, made meals for the family, and maintained good condition of the property single handedly. She asked the Court to award her 80% of the Property. She stated that she contributed 75% of the purchase price being Kshs.2.6 million and the construction by Kshs.1,925,000.00. 11. The Respondent was the DW1. He stated that he purchased the Property through a loan with the Sacco and also took a bank loan. He stated that he catered for everything during their marriage, catered for rent, and all including holidays for the family. He disagreed that the Applicant had contributed toward the purchase and construction of the Property. He testified that he contributed more than her because he took a loan and also used the better part of his salary towards the construction. He told the Court that his contribution is 80%. 12. In cross-examination, he stated that the Property was bought in 2013 and that he took a loan from Tembo Sacco. He stated that he had a bank statement showing that the money went to his account and that it went into the purchase of the Property. However, he could not identify the particular transaction in the said statement. He, nonetheless, maintained that he bought the Property singlehandedly at Kshs.3,050,000.00/=. He stated that he made some of the payments to the contractors and suppliers in cash. He also stated that he supervised the construction. 13. He told the Court that he took an emergency loan of Kshs.2,000,000.00/= that went towards the construction of the Property. He stated that by the time he had the accident in 2016 the Property was 90% completed. Later in his testimony, he stated that the construction was completed towards the end of 2015. He stated that he had attached bank statements that show how he paid out. He stated that he spent more than 7 million on furniture and fittings. 14. Should the Property be shared between the parties herein? The question on how matrimonial property is to be shared has now been settled by the law and the superior Courts. The position is that the distribution depends on the spouses’ individual contributions in the acquisition of the properties. Section 7 of the Act provides as follows; “7. Ownership of matrimonial property: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6131/eng@2026-04-29 3

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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”. 15. The Supreme Court in JOO v MBO & 2 others (Petition 11 of 2020) [2023] KESC 4 (KLR), underscored the centrality of contribution and held as follows; “ The guiding principle in matrimonial property division was contribution. A party must prove contribution—monetary or non-monetary—to be entitled to a share. The respondent demonstrated direct financial contribution during the marriage, thus entitling her to a fair share. Courts must assess contributions on a case-by-case basis”. 16. I shall now turn to the evidence and determine each party’s contribution to the acquisition of the said Property, starting with the Applicant. I have seen the Applicant’s statement of her Stima Sacco account dated 15th June, 2022 indicating that she received a loan amount of Kshs.1,500,000.00 on 17th April, 2013 and that she transferred the entire amount to A/C No 012189975XX00 on 29th April, 2013. With that, I am satisfied that she took a loan of the said amount and that the entire loan amount went into the purchase of the Property, and hence her contribution. 17. In addition, the Applicant told the Court that she also transferred Kshs.1,130,000.00 to the vendor of the Property on 11th April, 2013. She produced a Bank statement to show the same. I have confirmed the same transaction. 18. However, it is not clear whether the Kshs.1,130,000.00 that the Applicant transferred to the Vendor was her own/individual contribution or whether it was monies jointly held with the Respondent. The Kshs.1,130,000.00 had a brief history which might help the Court determine whether the money can be said to have been her own contribution or their joint equal contribution. 19. The Applicant told the Court that, before the purchase of the Property in question, they had earlier disposed a jointly owned property situated at Thika at Kshs.2,200,000.00 and that they put the proceeds of the sale in a joint A/C. She stated that out of the amount, Kshs.1,100,000.00 was her money and Kshs.1,100,000.00 was the Respondent’s. Her argument was that the Kshs.1,130,000.00 she sent to the vendor of the Property on 11th April, 2013, was her share of the proceeds from the earlier sale and thus her sole contribution. 20. The Applicant did not explain what became of the Respondent’s share of the Kshs.2,200,000.00. Although she stated that she transferred Kshs.715,000.00 to the Respondent on 28th March, 2013, she did not convince this Court that the said amount was the Respondent’s share of the Kshs.2,200,000.00/=. During cross-examination, she confirmed that she sent the said amount to the Respondent but she went on to tell the Court that she could not recall the exact reason she was sending the sum to the Respondent. 21. In the absence of any other explanation, this Court has not been persuaded that the Kshs.1,130,000.00 that the Applicant transferred to the vendor of the Property on 11th April, 2013 was her sole contribution. To the contrary, the Court presumes that the said amount was monies jointly held by the parties and to which each party had equal claim. This is particularly so because the money was transferred from their joint account which the Applicant held with the Respondent. 22. In that case, I find that the amount Kshs.1,130,000.0/= should be shared equally between the parties so that, in that particular transaction, the Applicant’s contribution was Kshs.565,000.00 while the Respondent’s contribution was Kshs.565,000.00. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6131/eng@2026-04-29 4

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23. The purchase price for the Property was Kshs.3,050,000.00/=. After factoring in the Kshs.1,500,000.00/= transferred to the vendor on 29th April, 2013 and the Kshs.1,130,000.00/= transferred to the vendor of the Property on 11th April, 2013, the balance of the purchase price was Kshs.420,000.00/=. 24. The Applicant stated that the rest of the purchase price was paid by the Respondent through cash and cheques. Based on the Applicant’s statement, I find that the Respondent paid the said amount through cash and cheques, thus completing the entire purchase price. 25. Based on this factual analysis, I find that with respect to the purchase price, the Applicant contributed Kshs.2,065,000.00/= (comprising Kshs.1,500,000.00 and Kshs.565,000.00). I also find that the Respondent contributed Kshs.985,000.00/=. (comprising Kshs.565,000.00/= and Kshs.420,000.00/ =). 26. The evidence on record shows that the Property has since been developed and thus this Court will also look at the evidence to determine each party’s contribution to the construction, development, and maintenance of the Property. 27. I shall first determine the Applicant’s contribution. She stated that she contributed to the construction of the Property through direct financial contribution to the tune of Kshs.1,925,000.00/=. She told the Court that she paid Kshs.300,000.00,/= Kshs.35,000.00/=, Kshs.140,000.00/=, Kshs.110,000.00/=, Kshs.40,000.00/=, Kshs.600,000.00/=, Kshs.600,000.00/=, and Kshs.200,000.00/= 28. I have seen the Applicant’s statement at Stima Sacco dated 15th June, 2022, which shows the following withdrawals; Kshs.140,000.00/= on 19th November, 2013; Kshs.110,000.00/= on 15th May, 2014; Kshs.300,000.00/= on 19th June, 2014; Kshs.40,000.00/= on 2nd September, 2014; and Kshs.365,000.00/= on 6th February, 2016. She also transferred Kshs.200,000.00/= to A/C 0021428101 on 5th February, 2016. (The last 2 transactions were funded by proceeds of a loan of Kshs.600,000.00/ = on 5th February, 2016). The total figure transacted as per the attached copy of Stima Sacco Account is Kshs.1,155,000.00/=. 29. The Applicant claimed that all these withdrawals went to the construction and development of the Property. I have considered the timelines within which she undertook these financial transactions. Even though she did not provide direct finance receipts to show how she spent the withdrawn funds, I find that it is likely that the said money went to fund the development and construction of the Property. I therefore find that there is documentary evidence to show that her direct financial contribution towards the construction of the Property is Kshs.1,155,000.00/=. 30. On the other hand, the Respondent told the Court that he took a loan in 2015 from Tembo Sacco of Kshs.1,200,000.00/= which he topped up with his saving to purchase the Thika Property. He claimed that the Applicant sold the said Thika Property without his knowledge and used the money for her personal benefits. He told the Court that he had a copy of his financial statements to show that the proceeds of the loaned money went into the purchase of the Thika property. However, in crossexamination, he could not identify the particular transaction in the financial statements. 31. In addition, he stated that he took a loan of Kshs.3,745,000.00/= from Standard Chartered Bank, Dubai sometimes in the year 2014. He claimed that he used the amount towards constructing the Property. The Respondent did not provide a copy of the loan agreement or a bank statement to show that the alleged loaned amount was credited into his bank account. Instead, he produced email correspondences and demand notices in which he was being called upon to clear some arrears of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6131/eng@2026-04-29 5

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loaned amount. However, the said emails do not disclose when the loan was secured and how much was the loan. 32. I have looked at his entire bank statement and I could not identify the said transaction into which the loan was credited in his account. This court was thus unable to determine whether he took the loan, when he took the loan (the month and dates), and the amount of the loan. It was also unable to trace the flow of the proceeds of the loan. 33. With these gaps, I find that the Respondent did not prove his claims that he took a loan of Kshs.3,745,000.00 from Standard Chartered Bank, Dubai, and that he used the same for the construction of the Property. 34. He also stated that he took an emergency loan of Kshs.2,000,000/=, and that the entire loan amount went towards the construction of the house. While the Applicant claimed that the said emergency loan was sourced due to the accident that the Respondent had been involved in in January, 2016, the Respondent denied the same and maintained that the loan was used for the construction of the Property. 35. I have checked the said bank statement. It shows that the Respondent received Kshs.2,013,660.00 / =in August 2016, which confirms that he secured the loan after he had been involved in the road accident. However, the Respondent did not specify which part of the loan proceeds went towards the construction of the said house. Upon my perusal, I found one transaction entry which shows that the Respondent paid out Kshs.108,600.00 on 29th August, 2016 for work done at home. I also found a transaction entry which shows that he paid Kshs.149,995.00/= to Furniture Palace on 22nd August, 2016. 36. However, his account that the entire loan proceeds went to the construction of the Property counters what he said in his oral testimony. He stated that by the time he got involved in the accident in 2016 the Property was 90% completed. Later in his testimony, he stated that the construction of the Property was completed towards the end of 2015. Yet, in his written statement he stated that the house was built from the year 2015 to the year 2017. 37. Based on these statements, coupled with the fact that the Respondent did not identify for the court the specific entries in his financial statements on how he utilized the loaned amount, I find that it is more likely that the Respondent did not spent all the proceeds of the loan acquired on 29th August, 2016 towards the construction and development of the Property. 38. The Respondent also told the Court that he paid contractors and suppliers through cash. He also produced a bank statement but he did not identify the specific transactions that went to the construction and development of the Property. 39. Lastly, the parties testified that they took care of other financial family obligations during their marriage. The Applicant testified that she had been paying school fees and school related expenses, buying clothes, buying food, and taking care of medical expenses. On the other hand, the Respondent told the court that he took medical cover for one of the kids and also paid school fees for the children. 40. The Matrimonial Properties Act also provides that contribution may be direct monetary contribution or otherwise. The law requires Court to also take into account non-monetary contribution. Section 2 of the Act defines ‘contribution’ as follows; “ contribution" means monetary and non-monetary contribution and includes(a) domestic work and management of the matrimonial home; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6131/eng@2026-04-29 6

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(b) child care; (c) companionship; (d) management of family business or property; and (e) farm work; 41. With regards to non-financial contribution, the Applicant told the Court that she took care of the home since 2017, participated in school extra-curricular activities, did domestic work, made meals for the family, and maintained good condition of the property single handedly. On the other hand, the Respondent also stated that he made non-financial contribution like participating towards the welfare of the home and that he was the one supervising the construction. 42. What percentage then should be given to the respective parties? In determining this last part, I associate myself with the decision of the Court of Appeal in EGM v BMM [2020] eKLR, where it held as follows; “ We think it was erroneous for the learned judge to assume and hold that the Constitution gives spouses an automatic 50% share of the matrimonial property simply by being married. …………………………………………………… The stated equality means no more than that the Courts to ensure that both parties at the dissolution of a marriage get their fair share of the property. This has to be in accordance with their respective contribution. It does not involve denying a party their due share or unfairly a party by giving such party more than he or she contributed”. 43. I have considered all these factors, the financial and non-financial (non-monetary) contribution of all the parties. I have considered the Applicant’s direct financial contribution to the purchase of the parcel of land on which the Property rests. I have compared the same with the Respondent’s direct financial contribution towards the purchase of the said parcel. I have also considered each party’s contribution to the development and construction of the Property. I have also factored in their nonmonetary contributions. In the end, I find that the Applicant should get 75% of the Property while the Respondent should get 25%. 44. Lastly, during the mediation, the parties agreed that the Respondent would retain household items namely, washing machine, projector, King size bed, and home theatre. In the spirit of equality, I find that it is only fair that the Applicant should be allowed to retain all the other household items. 45. In the end, I find that the Applicant’s amended Originating Summons dated 4th June, 2024 is merited and is hereby allowed albeit partially. Disposition 46. The Applicant’s amended Originating Summons dated 4th June, 2024 is hereby allowed, albeit partially. 47. These are the final orders of the Court. a. PLOT NO. 2XX (HALF) (unregistered) in Greenfields Estate, Mugumo Off Kamiti Road in Kiambu County together with all the buildings and developments thereon is a matrimonial property and the same shall be shared out between the Applicant and the Respondent in the ratio of 75:25 in favour of the Applicant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6131/eng@2026-04-29 7

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48. b. The above property shall be valued by a professional valuer and it be sold and the proceeds shared out between the Applicant and the Respondent in the ratio of 75:25 in favour of the Applicant, less any liabilities. c. The valuer shall be agreed upon by the parties, and in the event of any disagreement, the Deputy Registrar of this court shall be at liberty to appoint one. d. In compliance with (b) above the same shall be undertaken within 90 days from the date of this judgment herein. e. Either of the parties, upon valuation being undertaken, shall be at liberty to buy out the other. f. The property shall be sold by way of a public auction undertaken by a qualified and duly registered auctioneer. g. The professional costs or fees of both the valuer and the surveyor shall be met equally by both parties, and in default, they shall be at liberty to file their bills. h. All the household items shall be retained by the Applicant. i. Each party to bear their own costs. It is so ordered. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 29TH DAY OF APRIL, 2026. ………………………. C. KENDAGOR JUDGE In the presence of: Court Assistant: Beryl Ms. M’eruaki Advocate for the Applicant No attendance for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6131/eng@2026-04-29 8

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