Rkg v Family

5. Their viva voce evidence can be summarized as hereunder. 6. The Applicant, RKG, testified that the Respondent, his former wife, holds the disputed apartment in her sole name despite his financial contribution toward its acquisition. He adopted his witness statement, affidavit and bundle of documents in support of his claim. 7. He stated that he contributed a total of Kshs. 3.1 million toward the purchase of Apartment No. 2, [Particulars Withheld] Court, comprising Kshs. 1.8 million paid on 4th May, 2012, Kshs. 1.1 million paid directly to the developer on 21st June, 2013 and Kshs. 200,000/= paid on 9th October, 2013 as legal fees. 8. According to the Applicant, the property was registered solely in the Respondent’s name because he trusted her and had no reason to anticipate the breakdown of the marriage. He further testified that although the parties maintained a joint locker, the issue relating thereto had since been resolved. He urged the court to order reimbursement of his contribution and to award him a share of the rental income derived from the apartment. 9. The Applicant further testified that the parties never resided in the apartment, which was instead leased out for rental income ranging between Kshs. 90,000/= and Kshs. 120,000/= per month. He stated that despite the Respondent collecting rent from the property for several years, he had never received any portion of the proceeds. 10. He maintained that the apartment was acquired during the subsistence of the marriage in or about the year 2013 and therefore constituted matrimonial property. 11. During cross-examination, he confirmed that the parties had one child together, that the marriage had broken down leading to divorce proceeding. 12. In response, the Respondent adopted her replying and supplementary affidavits as part of her evidence and denied that the apartment was jointly acquired. She testified that the apartment was principally financed through contributions from her father and other family members, including a payment of approximately Kshs. 4.85 million made directly by her father to the developer, Highway Developers. 13. She maintained that the apartment was acquired as a commercial investment and not as a matrimonial home, emphasizing that the parties never occupied it together as a family residence. 14. The Respondent also challenged the Applicant’s assertion that his alleged payments established a proprietary interest in the apartment. She testified that the funds relied upon by the Applicant either did not directly relate to the purchase price or were insufficient to confer ownership rights. 15. She further relied on receipts, bank records and other transaction documents to demonstrate that the apartment remained her personal investment and that she solely catered for expenses such as service charges, maintenance and management of the property. 16. Overall, the viva voce evidence disclosed two competing positions: the Applicant asserting that the apartment was matrimonial property acquired through joint contribution during marriage, and the Respondent maintaining that it was her exclusive commercial investment substantially financed by her family. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6631/eng@2026-05-14 2

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Analysis and Determination 17. I have carefully considered the originating summons, the affidavits filed by both parties, the viva voce evidence tendered before the court, the annexed documentary evidence and the rival submissions together with the authorities relied upon. 18. The dispute revolves around whether Apartment No. 2, [Particulars Withheld] Court on L.R. No. 209/65/18 constitutes matrimonial property and whether the Applicant established a beneficial interest therein by virtue of his alleged contribution toward its acquisition. 19. 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. 20. 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. 21. 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. 22. 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 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.' 23. The Supreme Court of Kenya in Petition No. 10 of 2020 JOO v MBO [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…” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6631/eng@2026-05-14 3

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24. There is no dispute that the parties were lawfully married on 27th August, 2008 and that the apartment was acquired during the subsistence of the marriage. The property, however, was registered solely in the Respondent’s name. Under Sections 6, 7 and 14 of the Matrimonial Property Act, property acquired during marriage may qualify as matrimonial property and where such property is registered in the name of one spouse, there arises a rebuttable presumption that the property is held in trust for the other spouse. 25. However, the law is now settled that the mere existence of marriage or acquisition of property during coverture does not automatically entitle either spouse to an equal share. The spouse claiming a beneficial interest must demonstrate contribution, whether direct or indirect, toward the acquisition, improvement or preservation of the property. Proof of actual contribution is required before a proprietary interest may arise. 26. In the present case, the Applicant produced evidence showing payments amounting to approximately Kshs. 3.1 million allegedly made towards acquisition of the apartment, including Kshs. 1.8 million remitted to the Respondent, Kshs. 1.1 million paid directly to the developer and Kshs. 200,000/= in legal fees. 27. The Respondent does not entirely deny receipt of some of these funds but disputes their purpose and contends that the apartment was principally financed by herself, her father and her cousin. 28. The documentary evidence placed before court demonstrates that substantial sums toward the purchase price indeed originated from the Respondent’s family members, particularly the contribution of Kshs. 4.85 million by her father and Kshs. 1,957,500/= by her cousin. 29. It is also evident that the apartment was never occupied by the parties as a matrimonial home but was acquired and utilized as an income-generating investment property. Nonetheless, the fact that the property was not occupied as a family residence does not by itself remove it from the ambit of matrimonial property where evidence discloses contribution toward its acquisition during marriage. 30. It was acknowledged and admitted by the Respondent that the rent proceeds from the apartment went into education and maintenance of their minor son. So, in essence it was beneficial to them as a family. This is buttressed by the children’s case at the lower court in which it appeared the Applicant failed to support. 31. The court is persuaded that the Applicant established some level of direct financial contribution toward the acquisition of the apartment, particularly in relation to the payments made to the developer and legal fees. 32. However, the evidence does not support the Applicant’s contention that he made equal or predominant contribution toward the acquisition of the property. Equally, the evidence demonstrates that the Respondent and her family bore the substantial financial burden in acquiring and maintaining the apartment, including servicing expenses associated with the property. 33. In the circumstances, the court finds that although the apartment was acquired during the marriage and therefore falls within the broad category of matrimonial property, the Applicant only proved a limited beneficial interest proportionate to his demonstrated contribution and not entitlement to an equal share. His claim for equal sharing of rental proceeds is therefore unsustainable, particularly in light of the evidence that the Respondent exclusively managed the property and applied the rental income toward maintenance of the minor child and upkeep of the apartment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6631/eng@2026-05-14 4

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34. Consequently, I hold that the Applicant is entitled only to reimbursement or recognition of the proven financial contribution made toward acquisition of the apartment and not to equal ownership or equal division of rental income. 35. The claim relating to the joint locker was overtaken by events following the distribution of the contents by consent of the parties. 36. In the premises and taking into consideration the above findings I hold that the Applicant is entitled to 40% of the said apartment and the Respondent 60%. 37. The parties are at liberty to buy out each other after valuation has been done and if not the same be sold out by way of public auction and the proceeds shared out in similar ratio less proven liabilities. 38. The final orders are as hereunder: (a) The apartment situate on LR No. 209/65/18 Apartment Number 2, [Particulars Withheld] Court is for all intent and purposes matrimonial property and shall be shared out between the Applicant and the Respondent in the ratio of 40%:60% respectively. (b) The parties shall get a professional and a registered valuer who shall value the property within 90 days from the date herein and in the event of any disagreement the Deputy Registrar of this court shall be at liberty to appoint one without further reference to the parties. (c) The parties within 45 days after valuation shall be at liberty to buy out each other and in default the court be at liberty to appoint a professional and registered auctioneer who shall dispose the said apartment by way of public auction and the proceeds paid out to the parties in the above ratio less any proven liabilities. (d) The costs of both the valuer and the auctioneer shall be equally met by the Applicant and the Respondent in the ratio of 40%:60%. (e) Should any of them refuse to execute any transfer instrument the Deputy Registrar of this court shall be at liberty to do so. (f) Each party to bear its costs. DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 14TH DAY OF MAY 2026. H K CHEMITEI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6631/eng@2026-05-14 5

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