AHA v FWN alias PWN (Civil Case 1 of 2024) [2026] KEHC 4905 (KLR) (Civ) (20 April 2026) (Judgment)

AHA v FWN alias PWN (Civil Case 1 of 2024) [2026] KEHC 4905 (KLR) (Civ) (20 April 2026) (Judgment) Neutral citation: [2026] KEHC 4905 (KLR) Republic of Kenya In the High Court at Nyandarua Civil Civil Case 1 of 2024 KW Kiarie, J April 20, 2026 Between AHA Applicant and FWN alias PWN Respondent Judgment 1.AHA, the applicant, moved the court by way of Originating Summons dated 9th day of August 2021 and brought under sections 1A, 1B & 3A of The Civil Procedure Act and Order 37 of the Civil Procedure Rules, and Sections 2,6,7,9, 12, 14,17 of the Matrimonial Property Act, 2013. 2.The applicant is seeking the following orders:a.A declaration that the following properties registered in the respondent’s names are matrimonial and the same be sold, and the proceeds be shared at the ratio of 80:20% in favour of the applicant.i.L.R. No. Nyandarua/Kirima/6XXX, together with all the developments constructed and erected hereon.ii.salon equipment and appliances with an estimated value of Kshs.900,000/=.iii.A sum of Kshs. 520,000 deposited in the respondent’s account No. 1XXXXXXXXXX5 at Equity Bank to be refunded to the applicant.b.The Deputy Registrar of this Honourable court be authorized to sign all documents required to effect the sale and transfer of the properties listed in prayer 2 above to effect the orders of the court in favour of the applicant.c.The court be pleased to make such further orders as it may deem fit and just in the circumstances of this case. 3.The application is premised on the following grounds:a.The applicant and the respondent got to know each other in the year 2016, and started cohabiting as husband and wife.b.The applicant assisted in educating the respondent by paying her school fees at Laikipia University until she completed her education, and the respondent put up a salon business at Karuga Trading Centre, which she was managing.c.That while still cohabiting together the applicant purchased a plot in Kirima Nyandarua after he learned from the respondent's uncle that there was a suitable plot for sale and he paid the purchase price at Kshs: 280,000/- to the seller, Kshs: 150,000 to the respondent's uncle being brokerage commission and Kshs: 20,000/- to a survey for processing a title deed.d.That applicant had the plot registered in the name of the respondent as per their agreement, and the same formed their matrimonial home.e.The applicant proceeded to construct a permanent residential house on the said plot valued at over 1,120,000/- million, and the applicant moved the respondent therein.f.Upon the applicant moving the respondent to the plot, she started exhibiting rude and rebellious behaviour. She moved from the matrimonial home to an unknown place. The applicant later traced her at Nakuru, where she had eloped with a man after reporting the matter at Nyahururu police station.g.The applicant engaged Kikuyu elders for mediation, and she agreed to return on condition that the applicant relocate her to Subukia town and her grandmother occupies their matrimonial home in Kirima, and the applicant conceded to her conditions.h.The applicant opened a salon business at Subukia. Still, her promiscuous behaviour continued, and the applicant decided to formalize their union at the Mosque as a way of persuading her to change her ways and make her behave like a married woman.i.Their union was solemnized on 3/1/2020 under the Islamic Laws, and the respondent converted to a Muslim, and she adopted the name Farzina.j.The respondent did not change her ways, and the applicant resolved to divorce her, and their union was dissolved on 21/10/2020 under the Islamic Laws.k.While the applicant was in the hospital, the respondent sold all the salon equipment valued at over Kshs 900.000 and then fled to Rwanda.l.The applicant was only able to recover a few household items from their matrimonial home after recovery, as most had been sold or taken to an unknown location by the respondent.m.The applicant single-handedly contributed towards the acquisition of L.R No. Nyandarua/Kirima/6XXX and all the developments erected thereon, and the salon family business, and the same forms part of their matrimonial property.n.Prior to her elopement, the applicant had sent a sum of Kshs. 520,000/- to the respondent to boost their family business, which amount she disappeared with and for which I seek a refund.o.The applicant is therefore praying for the distribution of the matrimonial land and the house constructed thereon, which the applicant proposes to be sold, and the proceeds of the sale be shared at the ratio of 80:20% in his favour.p.The applicant also seeks a sum of Kshs. 450,000/-, being half the value of the assets in the salon business, and a refund of Kshs 520,200/-, sent to the respondent before she left him. 4.In her opposition, the respondent stated as follows:a.The said application is an abuse of the court process, unfounded, full of falsehoods and geared towards misrepresenting the honourable Court.b.The applicant wrongly alleges that the respondent’s lawfully acquired property is Nyandarua/Kirima/6XXX instead of Nyandarua/Kirima/16XXX.c.The statements and allegations in the applicant's pleadings are distractions intended to tarnish the respondent’s reputation as a promiscuous person who sought to benefit from the applicant during their brief marriage.d.The respondent met the applicant in December 2017 while she was a student at Laikipia University, and they developed a friendship that eventually led to marriage on January 3rd, 2020.e.When they met, they were not living together as husband and wife, as claimed. The respondent was focused on her education and not prepared to settle down with a man much older than her without first conducting proper due diligence and background checks on his previous relationships.f.The applicant regularly visited the respondent at her college, at least once a month, but this never equated to cohabitation or marriage.g.The applicant did not contribute to her education as claimed, except for some partial gifts from a man who was trying to attract her and gain her interest for exclusive courtship.h.The applicant has never played a role in her academic progress. Although the respondent was an orphan, her extended family made significant efforts to support her education long before she enrolled at Laikipia University or met the applicant. There were instances when her family organized fundraisers through harambees, but the applicant never attended them. Therefore, he should not claim any involvement in her educational achievements.i.The respondent is surprised by the applicant's clear and deceptive claim that he deposited Kshs. 520,000/- into her specified bank account, as pleaded.j.In 2018, after finishing her studies at Laikipia University, the respondent focused on starting a salon and cosmetics business using her savings. Additionally, the applicant, to show his support, gave her some money out of love and compassion, not as a loan or gift with conditions.k.The respondent utilized her savings and the small gifts received from the applicant to purchase cosmetic products and other items that supported the business's operations. Based on calculations, her total capital investment was around Kshs. 250,000/=, including minor gifts and donations from the applicant. Therefore, it is unlikely that such a small enterprise could hold stock valued at over Kshs. 900,000/=, as claimed by the applicant, which he considers to be part of matrimonial properties.l.From the earnings and profits she earned from the cosmetics business, the respondent decided to purchase land to establish her homestead. In this spirit, she bought parcel No. Nyandarua/Kirima/6XXX for Kshs. 275,000, paid in full by her, as shown in the sale documentation agreement.m.The suit property was sold along with a semi-permanent house that was later upgraded, and the respondent also added structures like a bathroom and a kitchen at a cost of less than Kshs. 200,000. It is therefore surprising and shows ignorance when the applicant claims to have built a permanent house costing Kshs. 1,120,000.n.The respondent bought the suit property sometime in June 2019, and a title deed was issued in her name on 18th June 2019. At that time, she was not married to the applicant as claimed, and I did not receive any significant contribution from the applicant towards the acquisition of the suit property.o.After finishing the renovations and upgrades to the additional structures, the respondent arranged for my maternal grandmother to occupy my house. I was living in Subukia town, managing the salon business on my own, while the applicant visited once a month, which was his habit since he lived in Voi.p.The respondent married the applicant according to Sharia Law on January 3rd, 2020, at Nyahururu Jamia Mosque after his charisma convinced her. They then established their matrimonial home in Subukia Trading Centre.q.The respondent was highly committed to the marriage and the applicant, to the extent that she converted to Islam and adopted a Muslim name to align with the applicant's wishes. However, the applicant neither relocated to Subukia nor allowed me to move in with him in Voi. Instead, he continued to visit once a month without explanation, sometimes switching off his phone for long periods. This behaviour prompted her investigations, which revealed that the applicant was married to another person and was living with her in Voi.r.The respondent was informed about the existence of another wife when that wife followed the applicant during one of his visits to their matrimonial home in Subukia. After a brief confrontation with his other wife, he left the respondent’s house and did not come back.s.When the respondent confronted the applicant, he became violent, harsh, and abusive towards her. From that point on, he was consistently violent both physically and verbally, eventually leading to his departure from the matrimonial rented home in Subukia for an extended period.t.COVID-19 compelled the respondent to temporarily close her salon business around April 2020. During this period, the applicant occasionally visited her home and took some cosmetic products that he had helped contribute to. When the respondent found out that he had sold these products, she was forced by circumstances to store the remaining expired items at her home in Kirima, Nyandarua, with the applicant's consent, which she had sought before taking this step.u.In November 2020, the applicant submitted a divorce certificate issued on October 27th 2020, by the Kadhi Courts at Voi. The respondent was surprised by this action because, at that time, she was still living in their matrimonial home at Subukia, and he did not allow her to participate in the divorce proceedings.v.Under Islamic Sharia Law, the applicant was expected to provide for the respondent’s immediate needs for an additional three months after the divorce was finalized. However, unexpectedly and without explanation, he ceased paying the rent on January 1, 2021. Consequently, the respondent had to move her household belongings to her Kirima house and seek new employment elsewhere.w.Around July 30th, 2021, the applicant, with Police Officers from Kipipiri Police Station and his wife, unlawfully entered her Kirima home under false claims of ownership. They removed the respondent’s grandmother’s household items and personal belongings valued at over Kshs. 500,000, with no lawful right. Attempts to recover these items have been unsuccessful.x.It is clear that the contents of the supporting affidavits are misleading and lack any factual basis.y.The respondent does not own any property that can be considered matrimonial property because the suit property was acquired before her marriage to the applicant. Additionally, the alleged funds in her bank accounts or from selling salon equipment do not exist.z.The applicant also did not include several matrimonial properties obtained during our marriage, which should be divided equally between the respondent and himself. 5.The applicant states they met in 2016 and started cohabiting. During this period, he assisted the respondent in setting up a saloon business and helped pay her college fees at Laikipia University. He also claims to have contributed to the purchase of the property he now seeks a share of. 6.The respondent stated that they met in December 2017, which led to the start of their friendship. She also mentioned that she had acquired the disputed property before their marriage, so it is not considered marital property. 7.Both parties agree that they married under Islamic law on January 3rd, 2020, and that the respondent converted to Islam. Their marriage, however, was brief and officially dissolved on October 21st, 2020, in accordance with Islamic Law. 8.The issues for determination are as follows:a.Did the applicant deposit Kshs. 520,000/- into the family business account? If so, what share is he entitled to?b.Whether the land parcel number of L.R No. Nyandarua/Kirima/6XXX is marital property, and if so, what share is the applicant entitled to? 9.Kenya’s Matrimonial Property Act provides a clear legal framework for defining what counts as matrimonial property. It covers jointly owned homes, investments, land, and other assets acquired during the marriage, distributing them according to each partner’s contribution. Section 6(1) of the Matrimonial Property provides as follows: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; orc.any other immovable and movable property jointly owned and acquired during the subsistence of the marriage. 15.In his testimony, the applicant did not specify when he deposited Kshs. 520,000.00 into the family business account. Providing documentary evidence would be the simplest way to support his claim, but he failed to do so. Upon reviewing the M-Pesa statement for account number 254722176822, no such evidence was found. I also observed that some pages of the statement lack the account balance column. Section 107 (1) of the Evidence Act provides:Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 15.It is trite law that he who avers must prove. This was restated in the case of Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR as follows:It is a well-established rule of evidence that whoever asserts a fact is under an obligation to prove it in order to succeed. 15.The applicant failed to demonstrate the alleged deposit and cannot request its refund. 16.A dispute exists over land parcel number L.R. No. Nyandarua/Kirima/6XXX and all developments on it. The applicant asserts sole contribution to the purchase and improvements, while the respondent claims that the applicant's funds were minimal. However, this was contradicted by the acknowledgement of the final deposit for the land, dated May 3, 2019, which states that the purchaser received a final payment of Kshs. 75,000.00 from the applicant, identified as the respondent's financier. 17.I conclude that the applicant indeed played a role in the purchase of the disputed land. 18.The applicant and the respondent got married on January 3, 2020. This occurred after the property was registered in the respondent's name. The agreement did not include the applicant as a party, except for stating that he financed the respondent's final payment. Had the parties entered into an agreement that the property was for joint benefit, this court would have been able to state with certainty that this was a pre-nuptial agreement. 19.In Black's Law Dictionary, 10th Edition, page 1372, a pre-nuptial agreement is defined as follows:An agreement made before marriage usually to resolve issues of support and property division if the marriage ends in divorce or by the death of a spouse. Also termed antenuptial agreement; antenuptial contract; premarital agreement; premarital contract; marriage settlement - Sometimes shortened to prenup. 15.In this case, the parties herein did not enter into such an agreement. 16.All payments to the respondent, as reflected in the highlighted payments in the M-Pesa statement, do not exceed KShs. 33,000.00. In my view, what the applicant gave to the respondent was a gift. 17.Any gifts and inheritance generally do not automatically count as matrimonial property unless both spouses shared or enhanced them. The Act does not explicitly exclude these assets from matrimonial property. However, Section 15 of the Matrimonial Property Act addresses gifts between spouses and states that:Where a spouse gives any property to the other spouse as a gift during the subsistence of the marriage, there shall be a rebuttable presumption that the property thereafter belongs absolutely to the recipient. 15.The funds shown to have been transferred to the respondent during the marriage, based on the amounts, must have been used solely for domestic purposes. 16.The marriage between the two parties lasted nine months. The applicant has not successfully demonstrated entitlement to the orders he requested. Therefore, his application is dismissed with costs. DELIVERED AND SIGNED AT NYANDARUA, THIS 20TH DAY OF APRIL 2026KIARIE WAWERU KIARIEJUDGE