Gmn v Jnn

(e) A declaration that motor vehicle registration number KBL xxxx acquired during the subsistence of the Applicant and Respondent marriage be sold and proceeds shared out equally between Applicant GMN and the Respondent JNN. (f) A declaration that the rent collected from the rental houses on parcel number Block105/4601 Utawala (previously known as Vxxx/Rxx) at the rate of Kshs. 55,000 per month w.e.f January 2011 until determination of this suit be shared equally and between GMN and JNN. (g) That interest of 18% per annum on a half share of the rent collected under prayer (f) above w.e.f January 2011 to full payment. (h) Costs to the Applicant. 2. When the matter came up for directions the Court ordered the same to proceed by way of oral evidence. Both the Applicant and the Respondent testified and did not call any witnesses. After the close of the case, they did file written submissions. 3. It was the Applicant’s case that their marriage ended on 24th February 2020 when a decree nisi was issued vide divorce case number 286 of 2019 at the Chief Magistrates’ Court at Nairobi. Their marriage was blessed with one daughter Joy Vashti Moraa born on 12th September 2010. 4. It was her case that during their union they acquired the properties which are enumerated on the originating summons. 5. According to her she heavily participated in their acquisition and developments. She attached several documents or exhibits including some loan documents from Afya Sacco as she was employed as an Enrolled Community Nurse by the Ministry of Health. 6. She testified and demonstrated how she transferred money from her account at Barclays Bank to the Respondent’s account at the same Bank 7. It was her case therefore that she funded the acquisition and development of both movable and immovable properties. 8. She took issue with land parcel number West Mugirango/ Bonyamatuta/xxxx in which the Respondent transferred it to himself and his minor son who was not the Applicant’s child. She said that the same was intentional and meant to defeat the Applicant’s claim. 9. On his part the Respondent opposed the suit vide his replying affidavit sworn on 15th November 2022. 10. He testified that all the properties were and are still registered under his name and that the Applicant had not made any contribution as such. 11. He also denied that the Applicant transferred funds to an account at Barclays Bank and that he could not recall such an account. 12. The Respondent prayed for the suit to be dismissed. 13. The parties as stated above filed their submissions. 14. It is the Applicant’s case that she had proved on a balance of probabilities that she had heavily contributed towards the purchase of the said properties 15. She also accused the Respondent of enjoying the rent from 2011 to date and she prayed that he be compelled to refund half of the said rent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9491/eng@2026-07-02 2

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16. On his part the Respondent submitted that the Applicant had not proved her case and this was evidenced by the fact that the titles to the properties read his names. 17. That the Applicant had failed to prove contribution on the acquisition of the same and that she was unable to explain how the loans were channeled. 18. The parties cited various authorities which I have had occasion to peruse. Analysis And Determination. 19. There is no doubt that the properties mentioned by the parties herein were acquired during coverture. They were also developed during the same period. 20. Section 7 of the Matrimonial Property Act 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. It is thus clear that each of the parties ought to prove their contribution before laying claim on any of the properties. 22. I have perused the evidence as tendered by the Applicant which includes loan application forms with Afya Cooperative Savings and Credit Society Limited dated 15th November 2006 for a sum of Kshs. 200,000. This according to her was used to purchase the Utawala plots. 23. The Applicant equally produced several loan documents in her favour from Afya Sacco limited and also bank statements from Barclays bank indicating the movements of the said amount. 24. It is apparent that the amount was wired to the Respondent’s account at Barclays bank despite his denial during cross examination. I think the Respondent was insincere when he said that he was not sure of an account with the said bank. 25. Account number 09xxxx16 was obviously that of the Respondent and funds were transferred therein by the Applicant. 26. The same goes to the receipts from Embakasi Ranching Company Limited. Despite the same reading the Respondent’s name the payment trail can be easily traced to the Applicant. 27. The fact that the Applicant worked as an Enrolled Community Nurse with the Ministry of Health clearly shows that she was able to borrow the loan. 28. The Court is also persuaded that the Applicant heavily participated in the development of the rural home at West Mugirango/Bonyamatuta/xxxx. 29. The transfer of title in my view to himself and the minor was a calculated move by the Respondent to defeat the cause of justice. It is evident from the search document produced that the property at the period he transferred to his minor son and himself had a caution placed by the Applicant. 30. He on cross examination admitted as much and was unable to explain why the title passed to him and his son despite the caution placed against the register. 31. There is no evidence that the said caution was removed and how he did it is within his knowledge. It can only be inferred that the same was done so as to beat this suit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9491/eng@2026-07-02 3

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32. The Respondent in his submissions has relied on the provisions of Section 26(1) of the Land Registration Act arguing among others that the said section insulated the Respondent and his son from the Applicants claim on parcel number xxxx above. 33. There is no evidence at all that the Respondent holds the title in trust for his son as envisaged under Section 6(2) of the Matrimonial Property Act. 34. The motor vehicle was again proved to have been purchased during coverture and I hold that the same remains a matrimonial property. 35. I have strained to see the contribution made by the Respondent. All the evidence presented before the Court are those by the Applicant. 36. There is no evidence of how the Respondent purchased the properties or even developed them. There is no evidence of any business run by the Applicant which could generate income or any employment for that matter. 37. It is expected under the provisions of Section 7 of the Act cited above that the Respondent would rebut the Applicant’s evidence by tangible grounds. All that is on record are mere denials during his evidence in chief and cross examination. 38. This Court is persuaded that the Applicant fundamentally contributed towards the acquisition and development of the properties during the marriage. The other contribution of course which the Respondent failed to rebut is on the Applicant’s homecare and maker responsibilities and more importantly taking care of their daughter. 39. There is no evidence to suggest that the Respondent contributed in any manner towards the welfare of the said minor or for that matter the management of the home. 40. He has not denied the fact that he has been collecting rent since 2011 from the premises. The Applicant has insisted that half of it be refunded to her. 41. Whereas this might be true there is no empirical evidence in any form either accounts or tenant’s records produced by the Applicant to persuade the Court to accede to the Applicant’s demands. 42. In view of the above observations, I find that this is a clear case where one of the parties over time has contributed immensely towards the acquisition and development of family assets. The loans taken by the Applicant speak as much. 43. Despite the properties being registered in the names of the Respondent she has proved contribution and this accords well with the Court’s findings in the case of PNE v PNE (2007) eKLR. 44. The Courts have now made it clear that each of the estranged spouse must prove their contribution. It is not enough as is the case herein to simply deny. The Respondent did not provide any rebuttal to all the documentary evidence by the Applicant. 45. It is of course accepted that the Respondent during coverture provided comfort and companionship to the Applicant as a husband and in line with the provisions of the Matrimonial Property Act the Court cannot wish it away. 46. Consequently, and taking all the factors herein I find that the Applicant is entitled to 70% of the properties which I deem that they are matrimonial. The Respondent shall be entitled to 30% thereof. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9491/eng@2026-07-02 4

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47. The best approach having found the above ratio is to value the properties and have the same shared out in the manner directed. The parties are at liberty to trade in where possible and acceptable to them outside this judgement. 48. Consequently, the Court orders as hereunder: (a) That properties number Mugirango/Bonyamatuta/xxxx, Block xxx/xxxx Formerly known as Vxxx/Pxxx Embakasi Ranching; Block xxxx formerly known as Vxxx/Rxx; Mwongori Settlement scheme; motor vehicle KBL xxxx are hereby declared matrimonial property. (b) The above properties shall be shared out in the following manner: 70 % in favour of the Applicant GMN and 30% in favour of the Respondent JNN. (c) The parties within 90 days from the date herein shall appoint a valuer registered and holding a current license who shall proceed to value the said properties and subsequently the same be shared out and or sold by way of public auction through a registered and license Auctioneer and the proceeds shared out in the above ratio. (d) The parties be at liberty to appoint a joint Valuer and an Auctioneer and in default the Deputy Registrar of this Court shall be at liberty to appoint them and their costs in any event shall be met by the parties jointly and in the above ratio. (e) With effect from the date herein any rent collected from the tenants shall be shared out in the ratio of 70:30 stated above. (f) Being a family matter each party shall bear its own costs. DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 2ND DAY OF JULY 2026. H.K. CHEMITEI JUDGE, FCIArb. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9491/eng@2026-07-02 5

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