Ewm v Gmm

4. For the first decade and a half, the parties engaged in the joint enterprise of family life, acquiring properties and constructing a primary matrimonial residence situated on L.R. No. 12xxxx in Syokimau. However, the marital relationship eventually descended into acrimony. The pleadings allege a history of emotional distress, allegations of adultery, and instances of domestic violence, culminating in a physical separation in May 2016 when the Applicant vacated the Syokimau matrimonial home alongside the children. 5. The legal dissolution of the marriage was initiated by the Applicant via a Petition for Divorce filed in the Milimani Commercial Court, Divorce Cause No. 162 of 2019. Following contested proceedings, Hon. G.N. Sitati, Senior Resident Magistrate, delivered a comprehensive judgment on 2 December, 2022, dissolving the marriage on the grounds of cruelty and adultery, and issuing a decree nisi to be made absolute within one month. 6. Crucially, during those divorce proceedings, the Respondent filed a Cross-Petition wherein he averred that specific parcels of land and developed properties had been acquired jointly during the marriage and constituted matrimonial property. The Applicant, in her formal Reply to the Cross-Petition filed on 25 July, 2019, expressly admitted the contents of paragraphs 10, 15, and 16 of the Cross-Petition. Relying on this unequivocal admission, the Magistrate's Court entered judgment on admission regarding the legal status of the properties as matrimonial assets, effectively leaving the mathematical quantification and equitable distribution of those assets to the jurisdiction of the High Court. 7. The parties now stand before this Court seeking the final equitable distribution of the matrimonial estate. The Applicant's central thesis is that she was the primary economic engine of the family, financing the acquisition of the properties through her corporate employment, SACCO loans, and commercial ventures, while concurrently bearing the exclusive financial and emotional burden of raising the children post-separation. Conversely, the Respondent contends that his entrepreneurial endeavours funded the acquisitions. He accuses the Applicant of extreme bad faith, alleging that she fraudulently alienated and encumbered highly valuable joint assets without his mandatory spousal consent, thereby necessitating compensatory set-offs. The Disputed Properties 8. A proper adjudication of this dispute requires a precise categorization of the assets involved. Based on the pleadings, the Affidavits, the annexed title deeds, sale agreements, and official searches, the Court has collated the matrimonial estate into the following matrix: i. L.R. No. 12xxxx (Syokimau Estate): registered in joint names. This is the primary matrimonial home, which is currently occupied by the Respondent, who has been collecting rental income from subsidiary units on the property since 2017. Historically valued at Kshs. 8,000,000/= during its construction phase. ii. Kajiado / Kaputiei North / 3xxxx: registered in joint names. Vacant land. The Applicant claims sole financial acquisition via a Housing Finance Company of Kenya (HFCK) loan iii. Kajiado / Kaputiei North / 3xxxx: registered in joint names. Vacant land. Similarly claimed by the Applicant to be financed via an HFCK loan. iv. Loc. 8 / Matharite / xx: registered in joint names. Agricultural plot. The Applicant claims she purchased it from the dependents of her late uncle, utilizing her savings from Stima Sacco. v. Mbololo / Tausa / 4xxxx: registered in joint names. A plot situated in Kikambala. Acknowledged to have been purchased jointly via Stima Sacco proceeds. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10619/eng@2026-07-17 2

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vi. Plot in Mtwapa C.R. 5xxxx: registered in joint names. Coastal plot. Admitted as jointly registered and acquired during the coverture. vii. Kirinyaga House: registered in the Respondent’s name. A rural residential property in the Respondent's ancestral home. Acknowledged by both parties as a secondary matrimonial home utilized by the family. viii. Maragua Ridge / 2766: registered in the Applicant’s name. Previously declared matrimonial property on admission. Sold by the Applicant to a third party, Nathan Njaramba, on 5 May, 2022, for Kshs. 8,831,250/= without the Respondent's spousal consent. ix. Samuru / Mwitingiri Block 1xxxx: registered in the Applicant’s name. Previously declared matrimonial property on admission. Charged by the Applicant to Family Bank Limited for Kshs. 22,110,575/= without the Respondent's spousal consent. Currently subject to statutory foreclosure and auction. The Applicant's Case 9. The Applicant's case is articulated in her Originating Summons, her Supporting Affidavit sworn on 20 March, 2025, her Witness Statement, and her Submissions dated 16 March, 2026. She portrays herself as the unyielding financial pillar of the family unit. She avers that she maintained stable, lucrative employment at the Kenya Power and Lighting Company (KPLC) for decades, ascending to a senior managerial role, while concurrently generating income from geospatial consulting and agricultural ventures. 10. To substantiate her claims of direct financial contribution, the Applicant adduces an extensive paper trail. Regarding the properties registered in joint names—specifically the Syokimau estate and the Kajiado Kaputiei North parcels—she annexes loan agreements, repayment schedules, and bankers' cheques originating from Stima Sacco, Stima Investments Sacco, and the Housing Finance Company of Kenya (HFCK). She contends that while the properties were registered in joint names to foster marital harmony, the capital outlay was entirely hers. She points to the HFCK loan summary, which valued the Syokimau construction at Kshs 4 million at the time of financing, asserting she bore the entirety of the repayment burden. 11. The most compelling aspect of the Applicant's evidentiary presentation relates to her indirect and direct contributions following her departure from the matrimonial home in 2016. She asserts that she was forced to flee due to the Respondent's violence, rendering her the sole custodian and financial provider for the three children. To prove this, she submitted a staggering array of financial transfer advices, bank statements, and institutional receipts: 12. With respect to housing, the Applicant produced a 2016 Tenancy Agreement with Thararoi Limited for a residence in Dam II Estate, Langata, at a monthly rent of Kshs. 49,000/=, followed by a 2021 Lease Agreement for a property in Acacia Court, Kahawa Sukari, at a monthly rent of Kshs. 60,000/=. She annexed dozens of NCBA Pesalink transfer receipts demonstrating uninterrupted monthly rental payments to the landlord, Eunice Kiumi, spanning several years. 13. Regarding education, the Applicant proved she single-handedly financed premium educational expenses. The exhibits include fee invoices and payment receipts to Rockfields Senior School for the minor E.M (including recurring termly invoices of Kshs. 94,800/=), to the Kenya High School for C.W.M (e.g., Kshs. 34,267/= and Kshs. 28,000/= via Equity Bank deposits), and to Alliance Girls High School. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10619/eng@2026-07-17 3

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14. Notably, the Applicant produced KCB SWIFT transfer confirmations demonstrating international remittances, including a payment of AUD 16,022.44 (equivalent to approximately Kshs. 1.67 million) to the Commonwealth Bank of Australia for L.W.M’s architectural studies at the University of South Australia. 15. Based on this overwhelming documentary evidence, the Applicant submits that she has met the threshold for immense direct and indirect contribution, entitling her to a dominant share of the jointly registered properties under the equitable doctrines of the Matrimonial Property Act, and Article 45(3) of The Constitution. 16. However, regarding the properties registered solely in her name—Maragua Ridge/2766 and Samuru/ Mwitingiri Block 1xxxx—the Applicant's narrative shifts to avoidance. Despite these properties having been declared matrimonial property by the Magistrate's Court based on her own pleadings, she now seeks to retract that admission. She argues that Maragua Ridge was an inheritance from her late father, Joram Maina Gatonye, and thus exempt from the matrimonial pool. She admits to selling this property on 5 May 2022, to Nathan Njaramba for Kshs. 8,831,250/=, claiming the sale was a necessity to fund the aforementioned school fees. Regarding the Samuru property, she claims she purchased it via a loan and acknowledges charging it to Family Bank Limited, which has now instituted foreclosure proceedings to recover a debt of Kshs. 22,110,575.19 owed by Geoems Technologies Limited. The Applicant submits that the admission in the divorce court was a mistake of Counsel for which she should not be punished, relying on the decision in Ambalasi v Lovega [2025] KEHC 590 (KLR). The Respondent's Case 17. The Respondent counters the Applicant's claims through his Replying Affidavit sworn on 8 July, 2025, his Witness Statement, and his Submissions. The Respondent presents a starkly different narrative of the family's economic dynamics. He asserts that he was employed as a structural engineer at KPLC long before the Applicant, utilizing his influence to secure her employment at the parastatal. He avers that he transitioned into private business in 2004, leveraging his engineering expertise to secure lucrative contracts in transport and last-mile electrical connectivity. 18. The Respondent claims that the massive capital generated from his entrepreneurial ventures was the true financial source for the acquisition of the entire matrimonial estate. He asserts that he personally negotiated and paid for the Kajiado, Matharite, and Mbololo properties, and that he solely funded the primary construction phases of the Syokimau matrimonial home. 19. However, the Court notes a glaring deficiency in the Respondent's case: a complete absence of corroborating documentary evidence. He has failed to adduce a single bank statement, business contract, or vendor receipt to substantiate his assertions of financial contribution. The Respondent attempts to explain this evidentiary void by alleging that upon vacating the matrimonial home in 2016, the Applicant maliciously carted away all his personal files, business records, and title documents, subsequently destroying whatever she could not carry. 20. Notwithstanding this lack of documentary proof of contribution, the Respondent's defence is powerfully anchored in statutory law and the doctrine of res judicata. He submits that the Magistrate's Court judgment in Divorce Cause No. 162 of 2019 conclusively settled the legal status of Maragua Ridge/2766 and Samuru/Mwitingiri Block 1xxxx as matrimonial property. He highlights that the Applicant lacks any Grant of Letters of Administration to prove the Maragua property was inherited, noting that the land registry green card reflects a standard subdivision and transfer, not a succession transmission. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10619/eng@2026-07-17 4

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21. The Respondent aggressively attacks the Applicant's conduct regarding these two properties, characterizing it as fraudulent and illegal. He demonstrates that the Applicant covertly executed the Sale Agreement for Maragua Ridge on 5 May, 2022, while the divorce proceedings were actively pending, and deliberately concealed the transaction from the Magistrate's Court when she testified months later in November 2022. 22. More egregiously, the Respondent exposes the circumstances surrounding the Samuru property. He produces a CR12 official search from the Business Registration Service establishing that Geoems Technologies Limited—the principal borrower whose Kshs. 22 million default triggered the Family Bank foreclosure—is owned and directed by the Applicant's sister (EWM) and nephew (KMW). The Respondent alleges a severe conflict of interest, asserting that the Applicant utilized her senior position on the KPLC tender committee to funnel over Ksh 140 million in state contracts to her sister's company, subsequently unlawfully pledging a matrimonial asset (the Samuru property) as collateral for the company's commercial bank loans. 23. The Respondent maintains that both the sale of Maragua Ridge and the charging of the Samuru property were executed entirely without his mandatory spousal consent, in flagrant violation of the Land Act, 2012, and the Matrimonial Property Act, 2013. He prays that the Court compensates him for his equitable share in these illegally dissipated assets—a sum he calculates at approximately Kshs. 15.4 million—by granting him absolute ownership of the Syokimau and Kirinyaga properties, while dividing the remaining jointly registered lands equally. Analysis & Determination 24. This Court distills the controversy into the following four pivotal issues for determination: i. Whether the legal status of Maragua Ridge/2766 and Samuru/Mwitingiri Block 1xxxx as matrimonial property is res judicata; ii. Whether the unilateral sale of Maragua Ridge/2766 and the charging of Samuru/Mwitingiri Block 1xxxx by the Applicant violated the statutory requirements for spousal consent; iii. How the proven direct and indirect contributions of the parties towards the acquisition and improvement of the matrimonial estate should be evaluated and weighted within the jurisprudential framework of Article 45(3) of the Constitution and the Matrimonial Property Act, 2013. iv. What the final, equitable mathematical distribution of the matrimonial estate should be. Res Judicata and Admissions in Pleadings 25. The Applicant implores this Court to declare that Maragua Ridge/2766 and Samuru/Mwitingiri Block 1xxxx are her sole, separate properties, contending that they were erroneously classified as matrimonial property in the Magistrate's Court due to a blunder by her former Advocates. The Respondent counters that the status of these properties is res judicata, having been conclusively settled by a court of competent jurisdiction based on a formal, written admission in the pleadings. 26. The doctrine of res judicata is a fundamental pillar of civil litigation, codified in Section 7 of the Civil Procedure Act. It dictates that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, litigating under the same title, in a court competent to try such subsequent suit, and has been heard and finally decided. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10619/eng@2026-07-17 5

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27. In the persuasive authority of Kenya Commercial Bank Ltd vs Benjoh Amalgamated Ltd [2017] eKLR, the Court of Appeal elegantly delineated the conjunctive elements required to establish res judicata: the issue must have been directly in issue in the former suit; between the same parties; litigating under the same title; the issue must have been finally determined; and the former court must have been competent to try the issue. 28. The Applicant suggests that because the Magistrate's Court lacks the pecuniary and substantive jurisdiction to mathematically distribute high-value matrimonial property, its pronouncements on the property are not binding. This argument betrays a misunderstanding of statutory jurisdiction. While the Magistrates' Courts Act and the Matrimonial Property Rules, 2022, generally reserve the complex distribution of high-value matrimonial assets to the High Court, the Magistrate's Court unquestionably possesses the jurisdiction to hear and determine petitions for the dissolution of marriage. Within that divorce jurisdiction, if a party files a cross-petition listing assets, and the opposing party formally admits to that list, the Magistrate's Court is fully competent to record that admission as a finding of fact. 29. The evidentiary record before me is incontrovertible. In MCDC No. 162 of 2019, the Respondent's Cross-Petition explicitly listed Maragua Ridge and Samuru as matrimonial assets at paragraphs 15 and 16. The Applicant, in her formal Reply to the Cross-Petition filed on 25 July, 2019, expressly admitted the contents of those paragraphs. Order 13 Rule 2 of the Civil Procedure Rules vests a court with the discretionary power to enter judgment at any stage of a suit upon an admission of fact made in the pleadings or otherwise. Hon. G.N. Sitati properly exercised this jurisdiction, recording the admission and finalizing the legal status of the properties. 30. To circumvent this finality, the Applicant invokes the equitable shield of "mistake of counsel." She relies heavily on the recent decision in Ambalasi v Lovega (supra) which cited the classical holding in Philip Chemowolo & Another v Augustine Kubede that blunders of Counsel should not be visited upon an innocent litigant to deny them a hearing on the merits. 31. However, the Court must sharply distinguish the jurisprudential application of this doctrine. As articulated in CFC Stanbic Limited v John Maina Githaiga & Another [2013] eKLR and further expounded by Odunga J. (as he then was) in Mureithi Charles & another v Jacob Atina Nyagesuka eKLR, the "mistake of counsel" doctrine is an equitable remedy primarily utilized to cure procedural defaults—such as the failure to enter an appearance, the late filing of a defence, or the inadvertent missing of a mention date—which result in ex parte or default judgments. 32. It is emphatically not a magic wand designed to retroactively erase substantive, unequivocal, and signed admissions of fact made in verified pleadings, particularly after a trial has concluded and a Decree Absolute has been issued. To allow a litigant to retract a formal admission of property status years later, simply because the financial implications of that admission (i.e., having to share the proceeds of the property) have become inconvenient, would severely undermine the finality of litigation, offend the doctrine of estoppel, and render the concept of pleadings meaningless. 33. Furthermore, the Applicant's substantive claim that Maragua Ridge/2766 was an inheritance— and thus exempt from the matrimonial pool under Section 2 of the Matrimonial Property Act—is unsupported by law. The transmission of inherited property must be proven via a confirmed Grant of Letters of Administration or Probate. The Applicant produced only a land registry green card showing a standard subdivision (from Parcel 698 to 2613 to 2766) and transfer, tendering no succession cause documents to prove transmission by inheritance. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10619/eng@2026-07-17 6

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34. Consequently, the Court finds that the status of Maragua Ridge/2766 and Samuru/Mwitingiri Block 1xxxx as matrimonial property is res judicata. The Applicant's attempt to resile from her admission is legally untenable and fails. Spousal Consent 35. Having established that Maragua Ridge/2766 and Samuru/Mwitingiri Block 1xxxx were legally classified as matrimonial property, the Court must scrutinize the Applicant's unilateral actions regarding these assets. The documentary evidence is uncontroverted: on 5 May, 2022, the Applicant executed a Sale Agreement transferring Maragua Ridge to Nathan Njaramba for a consideration of Kshs. 8,831,250/=. Similarly, the Applicant executed legal charges over the Samuru property in favor of Family Bank Limited on 6 March 2019, and 14 August 2019, to secure a commercial facility exceeding Kshs. 22 million for Geoems Technologies Limited. Both major transactions occurred during the pendency of the marriage and entirely without the written consent of the Respondent. 36. The legal framework governing the alienation of matrimonial property is deliberately stringent, designed to eradicate the historical mischief where one spouse would clandestinely dissipate family assets, leaving the other destitute. Section 12(1) of the Matrimonial Property Act, operates as a statutory injunction. It mandates that an estate or interest in any matrimonial property shall not, during the subsistence of a monogamous marriage, be alienated, whether by way of sale, gift, lease, mortgage, or otherwise, without the prior, informed, and written consent of both spouses. 37. The jurisprudence emanating from the appellate courts is unambiguous on this issue. In the case of Mary Wanjiru Njuguna v Peter Weru Kabui & 2 Others [2020] KEELC 665 (KLR), the Court held that spousal consent is not a mere procedural formality, but a substantive statutory condition. The Court in EKN v AS & 2 others KEELC 3683 (KLR) further cemented this, noting that the failure to obtain informed, written spousal consent renders any subsequent transaction voidable at the instance of the aggrieved spouse. A lender or purchaser who fails to conduct due diligence regarding the marital status of a registered proprietor assumes a severe legal risk. 38. In the present case, the Applicant's conduct exhibits a flagrant disregard for Section 12 of the Matrimonial Property Act. She unilaterally sold Maragua Ridge and unilaterally charged the Samuru property. The charging of the Samuru property is particularly concerning given the context provided by the Respondent. The Applicant leveraged a core matrimonial asset to secure a colossal commercial debt for a third-party corporate entity, Geoems Technologies Limited, whose directors (per the CR12 exhibit) are her immediate relatives. This action—which subsequently precipitated the issuance of a statutory notice of sale by Family Bank under Section 90 of the Land Act, 2012, due to a default of over Kshs. 18 million —effectively stripped the matrimonial estate of a highly valuable asset for the benefit of third parties. 39. The Respondent prays for compensation for the loss of these assets. Ordinarily, where a spouse unlawfully alienates matrimonial property, the aggrieved spouse petitions the Court to cancel the transfer or void the charge. However, it is a cardinal rule of civil procedure that a court cannot issue orders acting in rem to void titles or charges in absentia, where the affected third parties have not been joined to the suit and afforded a right to be heard. In this instance, neither the Purchaser, Nathan Njaramba, nor the Chargee, Family Bank Limited, are parties to these proceedings. Therefore, this Court lacks the jurisdiction to set aside the Sale Agreement or to nullify the bank charges. 40. However, the fact that the titles cannot be voided does not mean the Respondent is left without a remedy. Equity will not suffer a wrong to be without a remedy. Where matrimonial property has been dissipated or alienated illegally, and the physical asset is beyond the court's reach, the Court possesses https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10619/eng@2026-07-17 7

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the equitable jurisdiction to order monetary compensation or to effect an equitable accounting during the final distribution of the remaining unencumbered assets. 41. The Applicant realized Kshs. 8,831,250/= in cash from the sale of Maragua Ridge, and her actions facilitated a Kshs. 22,110,575/= liability that led to the loss of the Samuru property. The Court finds that the Respondent was legally entitled to his equitable share of the value of these dissipated assets. This entitlement shall not be ignored; rather, it shall be factored into the final distribution matrix via a mathematical set-off against the Applicant's share of the remaining real estate portfolio. Evaluation of Contributions 42. The foundational philosophy guiding the division of matrimonial property in the modern Kenyan legal landscape is enshrined in Article 45(3) of the Constitution, which guarantees that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage, and at the dissolution of the marriage. For several years following the promulgation of the Constitution, a fierce jurisprudential schism existed: did "equal rights" automatically dictate a strict 50:50 mathematical division of all matrimonial assets upon divorce, or was the division still contingent upon the historical doctrine of proven contribution? 43. Section 2 of the Matrimonial Property Act revolutionized the legal landscape by expanding the definition of contribution to explicitly include non-monetary inputs such as domestic work, management of the matrimonial home, childcare, companionship, and the management of family business. Section 7 of the Act provided that ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided accordingly upon divorce. 44. The tension between the constitutional promise of equality and the statutory requirement of contribution was finally and authoritatively settled by the Supreme Court in the landmark decision of JOO v MBO (2023) KESC 4 (KLR). The Court held that while Article 45(3) guarantees equality of fundamental rights and dignity, it does not ordain an automatic, absolute 50:50 redistribution of property rights upon divorce. The Court reaffirmed the statutory mechanism under Section 7 of the Matrimonial Property Act, holding that a spouse must prove their contribution to entitle them to a specific share of the property. 45. However, the Supreme Court profoundly elevated the judicial valuation of non-monetary contributions. The Court emphasized that equity in matrimonial matters prioritizes fairness over strict quantitative financial measures. The Court recognized that a spouse who undertakes extensive childcare and domestic responsibilities frees the other spouse to generate income, thereby earning a substantial equitable interest in the property. As the Court noted, the assessment must proceed on a case-by-case basis, meticulously balancing both direct financial outlays and indirect non-monetary inputs. This approach has been consistently applied by the High Court in subsequent decisions, such as JMU v JBM [2025] KEHC 10419 (KLR), which confirmed that while equal sharing might be a starting presumption, it must be adjusted based on the proven contributions of each spouse. 46. Applying these binding principles to the instant case, the Court is presented with a heavily asymmetric evidentiary record. 47. The Applicant has produced a staggering volume of documentary evidence demonstrating massive direct financial contributions. She adduced bank statements, loan agreements from Housing Finance and Stima Sacco, and voluminous transfer receipts showing that she heavily financed the acquisition of the jointly registered properties. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10619/eng@2026-07-17 8

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48. More significantly, the Applicant has definitively proven that following the separation in 2016, she assumed the exclusive financial, physical, and emotional burden of raising the three children of the marriage. The exhibits reveal that the Applicant paid rent of Kshs. 49,000/= to Thararoi Limited and subsequently Kshs. 60,000/= to Eunice Kiumi for nearly a decade to house the children. Furthermore, she single-handedly financed exorbitant educational expenses, remitting millions of shillings via NCBA Pesalink and KCB SWIFT to local schools and international universities. These colossal financial outlays, coupled with the daily non-monetary burden of childcare over an extended period, constitute a monumental contribution to the family unit, which the Court must heavily weight in her favor under the JOO v MBO framework. 49. In stark contrast, the Respondent's evidentiary showing is remarkably deficient. While he asserts that he generated substantial income from his engineering career and businesses to purchase the properties and build the Syokimau house, he has failed to produce a single bank statement, receipt, or contract to substantiate his claims. He alleges that the Applicant stole and destroyed his documents. However, in an era of digitized banking and institutional record-keeping, the Respondent could easily have obtained certified bank statements or KPLC employment records to reconstruct his financial footprint. He chose not to do so. Under the Evidence Act, he who alleges must prove. The Respondent has failed to discharge his evidentiary burden regarding direct financial contribution. 50. Nevertheless, the Court acknowledges that the Respondent is not entirely devoid of an equitable interest. The Syokimau home and the various plots were registered in joint names, which under Section 14 of the Matrimonial Property Act raises a rebuttable presumption of equal ownership. The Respondent also provided companionship and some unquantified support during the subsistence of the cohabitation from 1998 to 2016. Therefore, while the Applicant's contributions, both monetary and non-monetary, vastly overshadow those of the Respondent, he retains a foundational beneficial interest in the jointly acquired estate. Final Distribution 51. The Court must now undertake the delicate task of balancing the Applicant's overwhelming monetary and non-monetary contributions against her egregious, illegal dissipation of the Maragua Ridge and Samuru properties. 52. If the Court were to assess contribution in a vacuum, the Applicant would undoubtedly be entitled to the lion's share of the matrimonial estate, given her sole financing of the children's upkeep, international education, and rent for over eight years post-separation, alongside her substantial SACCO and bank loans utilized to acquire the assets. The Respondent's failure to furnish documentary proof of his financial inputs leaves his claim for an equal share severely weakened. 53. However, the Court cannot turn a blind eye to the Applicant's blatant violation of the law. By alienating Maragua Ridge and encumbering the Samuru property without spousal consent, the Applicant unilaterally stripped the matrimonial estate of assets cumulatively valued at over Kshs. 30.9 million (Kshs. 8.83 million from the Maragua sale plus Kshs. 22.1 million from the Samuru loan default). The Respondent was legally entitled to his equitable share of these properties. 54. The Respondent's submissions propose a pragmatic remedy: he prays to be allowed to retain the Syokimau property (L.R. No. 12xxxx) absolutely as compensation for the Applicant's illegal sale of Maragua Ridge, and further requests financial compensation for the Samuru foreclosure. 55. The Court finds this proposal to be grounded in sound equitable principles. The doctrine of equitable accounting permits the Court to adjust the final distribution percentages of remaining assets to rectify https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10619/eng@2026-07-17 9

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the unauthorized dissipation of joint assets by one spouse. To mandate a strict percentage division of each remaining physical asset would unjustly enrich the Applicant, who has already realized millions of shillings from the unconsented transactions, while simultaneously penalizing the Respondent. 56. Therefore, utilizing the broad discretion afforded by the Matrimonial Property Act and guided by the principles of fairness and conscience articulated in JOO v MBO, the Court shall execute the distribution via an equitable set-off mechanism. The Applicant's superior contributions to the acquisition of the properties and the maintenance of the children shall be deemed adequately compensated by her retention of the entirety of the proceeds from the Maragua Ridge sale and the commercial benefits derived from the Samuru property charge. Consequently, the Applicant is discharged from any obligation to remit a cash refund to the Respondent for those dissipated assets. 57. In exchange, the Respondent's equitable share in the dissipated assets shall be consolidated and satisfied by granting him enhanced, absolute proprietary rights over the principal remaining real estate. 58. Accordingly, the Court makes the following specific determinations regarding the distribution of the estate: 59. a. L.R. No. 12xxxx (Syokimau Estate): This property, which served as the primary matrimonial home and is currently occupied by the Respondent, is valued at approximately Kshs. 8 million. To offset the Applicant's unilateral dissipation of the Maragua Ridge and Samuru properties, the Applicant's equitable interest in the Syokimau property is hereby extinguished. The property shall vest entirely (100%) in the Respondent, George Maina Macharia. Furthermore, the Respondent is absolved of any requirement to account to the Applicant for rental income collected from this property from 2017 to date. b. The Kirinyaga House: Acknowledged by both parties as a secondary matrimonial home situated on the Respondent's rural land. Given the set-off mechanics applied above, this property shall vest entirely (100%) in the Respondent. c. The Vacant Joint Properties: The remaining unencumbered properties—namely, Kajiado/ Kaputiei North/3xxxx, Kajiado/Kaputiei North/3xxxx, Loc. 8/Matharite/xx, Mbololo/ Tausa/4xxxx, and the Plot in Mtwapa C.R. 5xxxx—were acquired jointly during the marriage. While the Applicant demonstrated superior financial contribution through her SACCO loans, the Respondent is credited with indirect contributions and the initial joint enterprise intent. Given that the major imbalances have been cured through the set-offs regarding the Syokimau, Maragua, and Samuru properties, equity dictates that these remaining vacant parcels be shared equally. They shall be distributed at a ratio of 50:50 between the Applicant and the Respondent. Resultantly, the Court issues the following final orders: i. A declaration is hereby issued that the properties known as Maragua Ridge/2766 and Samuru/Mwitingiri Block 1xxxx constituted matrimonial property. However, noting their prior unilateral alienation and encumbrance by the Applicant, the Applicant shall retain all proceeds and liabilities associated with the said properties, and the Respondent's claims for cash compensation regarding these two properties are hereby marked as settled via the set-offs ordered below. ii. A declaration is hereby issued that the property known as L.R. No. 12xxxx (Syokimau Estate) shall vest entirely (100%) in the Respondent. The Applicant is directed to execute the necessary transfer documents in favour of the Respondent within sixty (60) days of this Judgment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10619/eng@2026-07-17 10

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iii. A declaration is hereby issued that the property known as the Kirinyaga House shall vest entirely (100%) in the Respondent. iv. An order is hereby issued that the jointly registered properties, namely: a) Kajiado/Kaputiei North/3xxxx b) Kajiado/Kaputiei North/3xxxx c) Loc. 8/Matharite/xx d) Mbololo/Tausa/4xxxx e) Plot in Mtwapa C.R. 5xxxx shall be divided equally (50:50) between the Applicant and the Respondent. v. An order is issued directing the parties to mutually agree on a registered valuer within 30 days to value the properties listed in Order (iv) above. Upon valuation, the parties may opt to physically partition the properties, buy out each other's 50% share, or sell the properties by private treaty and share the net proceeds equally. vi. An order is issued that in the event either party defaults, neglects, or refuses to execute any transfer instruments necessary to effectuate the orders herein within the stipulated timelines, the Deputy Registrar is hereby authorized and directed to execute the said transfer documents on behalf of the defaulting party. vii. each party shall bear their own costs. viii. Stay of execution granted for 30 days. DATED AND DELIVERED AT NAIROBI THIS 17 DAY OF JULY 2026 HELENE R. NAMISI JUDGE OF THE HIGH COURT Delivered on virtual platform in the presence of: Court Assistant: Lucy Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10619/eng@2026-07-17 11

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