Mmk v Ams

6. She accused the Defendant of abandoning her and the children which led to some maintenance orders being issued against him. 7. She said that during the coverture they acquired the two properties namely the Lavington LR No 330/693 as well as Tiriki/ Shamakhokho/938 and two motor vehicles Mercedes Benz 4D Brown and BMW KUJ 340. 8. She said that the Lavington property was acquired and developed during marriage. 9. She also stated that while both of them were in the United States of America they had purchased a house at Piscataway which they later sold in the year 1982 for $74000 which was used to pay off the mortgage at Kenya Commercial Finance Company Ltd and purchased the two Lavington and Shamakhokho properties. 10. It was her case that she contributed both directly and indirectly towards the purchase and development of the two properties hence the need to have half share thereof. 11. PW2 GAA the sister to the Plaintiff supported her case by confirming that the Plaintiff and the children stayed at the Lavington home. 12. She said that she assisted the Plaintiff to get work at Kenyatta National hospital as she was the only one working until the Defendant got a job with the United Nations in January 1983. 13. Pw3 Moses Mugo, a valuer produced his valuation reports in respect to both the Lavington house as well as the Shamakhokho property. He said that he could not get access to the Shamakhokho property as the guard denied him access. 14. He also said on cross examination that he could not get a search over the same as it was not available in e-citizen platform. Defendant ’s Case 15. The Defendant testified denying the Plaintiff ’s allegations. He said that he purchased the Lavington property on 18th August 1972 before he married the Plaintiff and that he single-handedly developed the same courtesy of his late brother Advocate SS. He denied that there was any contribution by the Plaintiff or at all. 16. As regards the Shamakhokho property he said that he purchased it after their divorce. He produced an agreement dated 2nd May 1988 between him and the vendor, one, SNN purchaser. Thereafter he has single-handedly developed the same without any input from the Plaintiff who according to him has never set foot there. 17. The Court subsequently directed the parties to file written submissions which they have complied. 18. The Plaintiff submitted that she has been able to proof that she participated in the developments of both properties. She said that she had worked all through as opposed to the Defendant who hoped between work to work and at some point, he did not work and at that time she was the bread winner. 19. The Plaintiff submitted that the evidence of a joint account at City Bank New York where the money was wired from clearly demonstrated that she participated in the improvements of the said family properties. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10231/eng@2026-07-09 2

page 2 of 6

20. She submitted that she has been taking care of the children who are now adults and therefore she contributed both directly and indirectly in the acquisition of the two properties hence the need to have half share. 21. She submitted that since the Plaintiff had been leasing out and receiving rent from the Lavington home for many years she was entitled to reasonable compensation as well. 22. The Plaintiff relied on several authorities including Echaria v. Echaria (2001) and P.O.M V. M.N.K. (2017) eKLR. 23. The Defendant vehemently denied in his submissions that the Plaintiff was entitled to the prayers sought. He said that he acquired the properties before marriage, that is the Lavington property and Shamakhokho after the divorce. 24. He submitted that there was no meaningful proven evidence by the Plaintiff that she contributed towards their acquisitions. 25. He submitted that the proceeds from selling the Piscataway house in New York went into paying the Kenya Commercial Finance Limited and settling the family as they relocated back to Kenya. 26. He submitted that the Lavington house was developed through the money he sent to his relative Advocate Simani, now deceased. 27. He submitted that the Plaintiff’s suit was time barred and he relied on Section 4(2)(1) of the Limitation of Action Act as well as the case of C.W.M. V. J.P.M. (2017) eKLR. 28. He argued that the Plaintiff had waited for 29 years to bring her claim which was barred in law and urge the Court to dismiss the entire suit. Analysis And Determination 29. The central issue which is well captured by the parties in their submissions is whether in light of the evidence before this Court the two properties can be declared matrimonial and therefore ought to be shared equally. 30. Section 7 of the Matrimonial Property Act places the burden upon the parties to establish their contribution made towards the acquisition and subsequent development or improvements of the same. It goes on to state; “ 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. What constitute matrimonial property has been clearly spelt out under Section 6 of the said Act which states; “ For the purposes of this Act, matrimonial property means— (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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10231/eng@2026-07-09 3

page 3 of 6

32. What is evident before me is that the Lavington property was acquired by the Defendant before marriage, a fact which is supported by the marriage certificate and not contested by the Plaintiff. 33. It is also evident that the parties spent considerable time in the United States of America where they schooled and worked with occasional coming back to Kenya. 34. In between their marriage and before divorce the Lavington house was built and the parties at some point stayed there especially the Plaintiff and the children. 35. It is the Plaintiff ‘s case that the money used to finance was through a loan from the Kenya Commercial Finance Limited which was later repaid through the sale of the house in America. This line of evidence was not denied by the Defendant. 36. The Defendant also stated that he would send some money to his relatives and specifically the late Advocate Simani who assisted in the construction of the house. 37. The Plaintiff as well stated that she would send money to the relatives while away in the United States and that as a matter of fact they stayed in the said house around 1983 with the children before the Defendant destroyed part of it therefore making it inhabitable and which caused her to relocate with the children back to America. 38. I have seen some bank cheques produced by the Plaintiff and undenied by the Defendant showing that they had a joint account at Citibank between 1979 and 1981. For whatever reasons they decided to have the joint account which they operated as a couple and decided jointly how to use the funds. It is undeniable therefore that the funds in that account although not clearly explained by the parties were utilized for their benefit. 39. As noted, earlier both of them worked and therefore earned salary despite the allegations by the Plaintiff that at some point the Defendant was unemployed. 40. Although I do not see any evidence of whether who ever the cheque was drawn to was towards the improvement or construction of the Lavington house it will be fair and reasonable to conclude that despite the title of the Lavington property reading the Defendant’s name the Plaintiff contributed directly and indirectly towards its development as the Defendant had not build anything at the time of purchase and marrying the Plaintiff. 41. It is also now acceptable that even if a spouse may no exhibit any financial contribution towards the acquisition of the asset, her contribution may be indirect in terms of taking care of the children, being a homemaker and in a way freeing the other spouse to work uninterrupted. 42. The case at hand is nevertheless unique in the sense that the Plaintiff was a qualified pharmacist (among the first Kenyan for that matter according to her). Evidence clearly showed that she worked in the USA almost all her life and clearly apart from supporting the Defendant she played a big role in taking care of their four children. 43. She was not therefore impecunious and she easily felt professionally equal to the Defendant who is an accountant and worked with various bodies including the United Nations as well as Johnson and Johnson. 44. Before arriving at what percentage each one contributed, I find that the Shamakhokho property was purchased by the Defendant after their divorce. There is no evidence of any contribution by the Plaintiff. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10231/eng@2026-07-09 4

page 4 of 6

45. In as much as she claimed that the proceeds from the sale of the New York house went into the purchase of the same, this was purchased later and the payments as it can be seen from the agreement were staggered. 46. If the proceeds had been from the sale stated above then I guess the payments would have been lumpsum. 47. The Plaintiff admitted on oath that she has never stepped in the said Shamavilla and this lance credent to my conclusion that she has nothing to do with it. 48. As for the vehicles, not much was proved by the Plaintiff. The Defendant admitted that he purchased the BMW for the Plaintiff and in my view each party should retained whatever car they hold. 49. What of the claim by the Plaintiff about loss of profits? 50. The Defendant stated that he has not leased the house to any tenant as it is a family home. 51. No evidence was led by the Plaintiff showing that there was a tenant in the house who paid rent. The allegations of an Ethiopian staying therein was not proved. 52. There is no evidence of such accounts tabulated indicating any rent which the Defendant collected and thus the Plaintiff ought to be compensated. 53. On this score I do not see sufficient reasons to award the Plaintiff. 54. As for the valuation and in view of what I have stated concerning the Shamakhokho property, there was no evidence of a value placed upon it. Neither do I buy the line of evidence by Pw3 that he was unable to value because of some reasons to do with e-citizen platform. In any event as found above the Plaintiff has not established any claim on it. 55. As regards the Lavington house I find the same to be a matrimonial home. There is no evidence that the Defendant settled with the Plaintiff during their marriage in any other place in Kenya other than the Lavington place. There children knew no other place except the said property. I find that major development was done during coverture and it is not true that the Plaintiff did not contribute. 56. The Defendant argued that the Plaintiff s claim was time barred by virtue of Section 4(2) of the Limitations of Action Act. He relied on C.W.M.V J.P.M(supra). 57. I have read the above decision by the three judges of the Court of Appeal and I respectfully find it distinguishable with the matter at hand. 58. While in that case the appellant had left the matrimonial home for 31 years, the property in question was an inheritance by the Respondent who had event shared it out to the children including the Appellant’s son and the reminder had it registered between him and his new wife. 59. The Court faulted her for going away for that long period only to come back later which the Court found it inordinate delay. 60. The case at hand is distinguishable on the grounds that the parties have been in conduct all along while in Kenya and specifically in America. The Plaintiff has been taking care of the children all along something which led to some undenied orders being issued against the Defendant to compel him support the children. 61. Additionally, the property in question has not been transferred to any other third party or extinguished. It remained intact as at the time when the divorce decree was granted. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10231/eng@2026-07-09 5

page 5 of 6

62. In the premises I do not agree that this suit is time barred as argued and submitted by the Defendant. 63. In terms of division of the Lavington house, there is no mathematical formula that can easily be applied in distributing matrimonial property. It is the duty however of the Court to determine what is fair and closer to each party’s contribution both monetary and non-monetary. 64. The Court is aware of the value ascribed by Pw3 which is Kshs. 110,00000. This was however a unilateral figure as a result of a valuation commissioned by the Plaintiff for her own consumption. There will be need to have an agreed valuer to undertake the same. 65. The Plaintiff has asked for a 50% share of the Lavington property. I find that this will not be fair taking into consideration that the Defendant purchased the property before marriage. Her contribution basically is towards its improvement and more particularly her indirect improvement during marriage as stated above. 66. In the premises and taking consideration of all the factors proved by way of evidence I shall apportion the Plaintiff 40% thereof while the Defendant 60% thereof. 67. The parties are at liberty to curve out the same if possible and alternatively value it and buy each other out or dispose it by way of public auction and the proceeds be shared out in the above percentage. 68. Both the Plaintiff and the Defendant prayed for costs. I however find that this is a family matter and I shall decline both invites. 69. In the premises I find and hold that: (a) The Lavington property namely LR No 330/693 [Particulars Withheld] is hereby declared to be a matrimonial property and the parties are hereby directed to share out the same in the ratio of 40% in favour of the Plaintiff and 60% in favour of the Defendant. (b) The parties in compliance with order (a) above shall, if possible, curve it out in the above ratio and or alternatively have a valuer to be agreed upon to value the same and thereafter be disposed and the proceeds shared out in the above ratio. (c) In effecting prayer(b) above the parties shall get a registered and a license Auctioneer to carry out a sale by way of public auction. (d) The above exercise shall be undertaken within 90 days from the date herein. (e) In the event that the parties disagree on either the valuer or the auctioneer the Deputy Registrar of this Court shall appoint them and the costs be shared out it in the above ratio by the parties. (f) Land parcel number Tiriki/Shamakhokho/938 is not a matrimonial property. (g) Each of the parties shall retain the motor vehicles they hold, namely Mercedes Benz 4d Brown and KUJ 340 BMW 2002 saloon. (h) The prayer for loss of user for the Lavington property is denied. (i) Each party shall bear their respective costs. DATED SIGNED AND DELIVERED AT NAIROBI VIA VIDEO LINK THIS 9TH DAY OF JULY 2026. H.K. CHEMITEI JUDGE, FCIArb. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10231/eng@2026-07-09 6

page 6 of 6