High Court 9693 of 2026

been acquired jointly with the deceased and with her contribution that arose from her earnings as a clinical officer. 4. The Applicants also relied on the Affidavit of Protest sworn by Anthony Werasuswa Lunani dated 30th September 2025 in response to the Summons for Confirmation of grant dated 22nd March 2025 wherein he deposed that Eldoret/Langas/xxxx was purchased jointly by the deceased and the 3rd Administrator. That further in the said protest, he contends that the plots at Sikhendu and Eldoret were also matrimonial properties of the 3rd Administrator, who jointly purchased them with the deceased and later, while working as a clinical officer, solely put up commercial premises thereon. 5. That the protestor also proposed that the estate be shared in accordance with the arrangement allegedly made by the deceased, including treating Eldoret/Langas/xxxx as the matrimonial property of the 3rd Administrator and assigning it to the 2nd house, and prayed that the court reject the mode of distribution proposed by the 1st Administrator. 6. The Applicant’s case was further supported by independent witness statements as follows: a. Samson Kisembe Kiboi, the Administrator of the estate of the late Kiboi Kisembe Serebe (the vendor), deposes that on or about 1st March 1991, he witnessed the deceased Eliud Lunani and Rebeccah Cherotich Lunani jointly purchase a plot measuring 37.5 x 100 feet at Chepkoroko (now Eldoret/Langas/xxxx). He confirms that the full purchase price was paid and possession was taken, and that thereafter the 3rd Petitioner solely constructed commercial premises on the plot, on which she operated a clinic known as NEEMA. b. Musa Lunyasi Khatsalwa, a pastor and former tenant on the suit property from the year 2000 to 2007, deposes that during his tenancy, the 3rd Petitioner had her matrimonial home on the plot and had constructed several rental houses thereon. c. Veronica Muthoni Njau, a business lady and long-time resident of Langas, deposes that since the year 2000 she has known the 3rd Petitioner as the landlady of Eldoret/Langas/xxxx. She also states that the 3rd Petitioner developed rental premises on the parcel and that she and her husband were tenants on the property from 1989, during which time the 3rd Petitioner was living in her matrimonial home on the same plot. Replying Afidavit 7. The 1st Administrator, Thomas Kubende Lunani, opposes the application by way of a Replying Affidavit sworn on 27th October 2025. He states that Eldoret/Langas/xxxx is not matrimonial property and that if it were, the Applicant ought to have filed matrimonial proceedings. He denies any evidence of joint acquisition by the deceased and the 3rd Administrator, or any proof that she solely constructed the commercial premises. 8. He further deposes that the Applicant's status as a clinical officer does not mean she contributed to the acquisition or development of the parcel. He contends that the application lacks merit, was not brought in good faith, and that the beneficiaries will suffer prejudice if it is allowed. Supplementary afidavit 9. The Applicant filed a supplementary affidavit in response to the 1st Administrator’s replying affidavit sworn on 27th October 2025. In that affidavit, she states that the 1st Administrator’s reply is based on a misapprehension of both the law and the facts regarding matrimonial property. She reiterates that Eldoret/Langas/xxxx was jointly acquired by purchase, that it was her matrimonial home, and that she later built several commercial rental premises on the parcel herself. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9693/eng@2026-07-02 2

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10. She further states that she contributed to the acquisition from her earnings as a clinical officer and that no prejudice will be occasioned to the beneficiaries if her matrimonial share is first identified and the residue thereafter shared among all beneficiaries, including herself. 11. She adds that, apart from the 1st Administrator, the other beneficiaries have not raised any objection to her claim. Her position is that the application is brought in utmost good faith and seeks only determination of her matrimonial share before distribution of the free property. The Application was canvassed by way of written submissions Applicant’s Submissions 12. Regarding the application dated 30th September 2025, counsel for the 3rd Administratrix submitted that the Applicant is the widow of the deceased herein and that she seeks a determination of her share in Eldoret/Langas/xxxx before the deceased’s free property is distributed. Counsel submitted that the central issue for determination is whether this Honourable Court has jurisdiction to entertain the application. 13. Counsel submitted that this Court does have jurisdiction, since the 3rd Administratrix and the deceased were husband and wife, and that was not contested by the 1st and 2nd Administrators. Counsel argued that the claim concerns matrimonial property allegedly jointly acquired during the subsistence of the marriage, and that the Applicant’s interest ought to be identified and set aside before any distribution of the estate is undertaken. 14. Counsel further submitted that the 3rd Administratrix’s position is that Eldoret/Langas/xxxx was acquired jointly with the deceased, and that she contributed to its acquisition and development from her earnings as a clinical officer. Counsel pointed out that she also deponed that she personally put up the commercial premises on the parcel and used part of it as her residence. 15. Counsel maintained that the claim by the Applicant is not a fresh attempt to expand the estate, but a legitimate request for recognition of a surviving spouse’s proprietary interest in property acquired during marriage. Counsel therefore urged the Court to find that the application was properly before it and that the Applicant’s matrimonial share ought to be determined before confirmation and distribution of the estate. 16. Counsel relied on the authority of Esther W. Gitau v Mary W. Githatu Eldoret Court of Appeal No. 50 of 2016 eKLR and submitted that the succession court has jurisdiction to consider and resolve disputes relating to a spouse’s share in matrimonial property. Counsel argued that where property is shown to be matrimonial property, it must first be carved out and excluded from the free estate before the residue is shared out among the beneficiaries 1st Administrator’s Submissions 17. Counsel for the 1st Administrator submitted that the application dated 30/09/2025 is incompetent and was brought in bad faith. Counsel argued that the Applicant ought to have filed matrimonial proceedings rather than raising the issue within the succession cause. 18. Counsel submitted that Eldoret/Langas/xxxx is not matrimonial property and that the Applicant has failed to tender evidence showing that it was jointly acquired by the deceased and the 3rd Administratrix. Counsel further contended that the mere fact that the 3rd Administratrix was a clinical officer does not prove that she contributed to the acquisition of the parcel or to the construction of the commercial premises thereon. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9693/eng@2026-07-02 3

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19. Counsel also submitted that there is no evidence placing the property within the category of property available for recognition as matrimonial property in the manner alleged by the Applicant. It was argued that the application is unsupported by proof and that the Applicant’s claim should therefore fail. 20. Counsel urged that the application lacks merit and that allowing it would prejudice the beneficiaries of the estate. For that reason, counsel prayed that the application be Dismissed with Costs. Determination 21. Having considered the application, the affidavits in support of and against, the witness statements, submissions as well as the proceedings, it is my considered opinion that the issues that arises for determination is; i. 22. Whether Eldoret/Langas/xxxx qualifies as matrimonial property under Section 6 of the Matrimonial Property Act, 2013. For a property to qualify as a matrimonial property, it must meet the definition under Section 6 of the Matrimonial Properties Act No. 49 of 2013. For the purposes of this case, Section 6(1) of the Act provides as follows; Meaning of matrimonial property 1. For the purposes of this Act, matrimonial property means— 23. 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” Under Section 2 of the Act, ‘Matrimonial home’ is defined as: “ Any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home and includes any other attached property.” 24. Further, Section 14 of the Act sets out rebuttable presumptions on property acquired during marriage as follows: “ Where matrimonial property is acquired during marriagea. 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.” 25. In this case, it is undisputed that the applicant and the deceased were married, and the evidence shows that Eldoret/Langas/xxxx was acquired during the subsistence of the marriage between the deceased and the 3rd Administratrix. Further, the 3rd Petitioner has demonstrated through her Supporting and Supplementary Affidavit together with credible supporting witness statements, that the property was purchased jointly by her and the deceased in or about 1991. 26. On the issue regarding the contribution of a spouse towards the acquisition of matrimonial property, the same under Section 2 of the Matrimonial Property Act is broadly defined to include both https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9693/eng@2026-07-02 4

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monetary and non-monetary contribution. Non-monetary contribution expressly includes domestic work, companionship, management of the matrimonial home, and family care. 27. The Applicant’s occupation of the property, her role as a spouse, and her contribution to the maintenance and development of the matrimonial home is not disputed by the 1st Petitioner. The witness statement of Samson Kisembe Kiboi, the Administrator of the estate of the vendor (the late Kiboi Kisembe Serebe), confirms the joint purchase of the plot measuring 37.5 x 100 feet, the full payment of the purchase price by the deceased and the Applicant and goes on to state that the 3rd Petitioner solely constructed the commercial premises thereon and operated a clinic known as NEEMA. 28. This evidence is further corroborated by the statements of Musa Lunyasi Khatsalwa and Veronica Muthoni Njau, both former tenants, who confirmed that the 3rd Petitioner/Applicant had her matrimonial home on the plot and personally developed several rental houses, constituting substantial non-monetary contribution. 29. It is worth noting that save to state and submit that the fact that the Applicant was a clinical Officer is not enough cause to maintain that she bought the suit property together with the deceased, the 1st Petitioner has not in any meaningful and/or substantial way rebutted or controverted the Applicant’s contention as well as the evidence in support of her assertion. 30. Rather, the 1st Petitioner, in his Replying Affidavit, merely offered a bare denial without producing any evidence to rebut the presumption or disprove the 3rd Petitioner’s contribution. On the other hand, the Applicant asserts that she was in gainful employment throughout the marriage and that she contributed to the development of the property, including construction and improvements, for which she annexed her payslip as evidence. 31. In the absence of credible rebuttal evidence, the presumption under Section 14(a) of the Matrimonial Properties Act has not been dislodged but remains intact. In this regard, I am persuaded and therefore guided by the decision of the court in ALM Vs JNN 2022 eKLR, where the court held that: “ Further, Section 14(a) of the Act provides that where matrimonial property is acquired during the marriage in the name of the one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse.” 32. Even as the court notes the absence of documentary proof to support the assertion of contribution to the acquisition of the subject property, this does not negate the Applicant’s matrimonial interest in the property altogether. This is because under the said Section 14 of the Matrimonial Property Act, once contribution monetary or non-monetary is established, a presumption of trust arises in favour of the non-registered spouse and this presumption does not require proof of exact sums expended. 33. In conclusion, therefore, I am satisfied that the suit property having been acquired and registered in the deceased’s name during the marriage, coupled with the Applicant’s occupation of the same, her demonstrated non-monetary, and stated and monetary contribution towards its acquisition and development places the property within the ambit of matrimonial property as contemplated under Sections 2, 6, and 14 of the Matrimonial Property Act, 2013. 34. Accordingly, the court now hereby finds and holds that Eldoret/Langas/xxxx constitutes matrimonial property. The court in this regard now hereby directs that the Applicant’s share in Eldoret/Langas/ xxxx be determined first before distribution of the deceased’s free estate. This being a family matter, the costs shall be in the cause. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9693/eng@2026-07-02 5

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READ, DATED AND SIGNED AT BUNGOMA ON 2ND JULY 2026 E. OMINDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9693/eng@2026-07-02 6

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