https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7380

Esbon v Mwangi (Civil Case E028 of 2024) [2026] KEHC 7380 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEHC 7380 (KLR) Republic of Kenya In the High Court at Thika Civil Case E028 of 2024 FN Muchemi, J May 21, 2026 Between Beatrice Wanjiku Esbon Plaintiff and Peter Mwangi Defendant Judgment 1.The plaintiff instituted this suit vide plaint dated 12th August 2024 2024 praying for judgment against the defendant for:-a.Special damages of a half share of the matrimonial home plot and half share of the proceeds from 3 plots initially sold being the property due and owing;b.Interest at court rates on (a) above until payment in full;c.General damages for loss of profit and expense claim.d.Costs of the suit and interest thereon at court rates until payment in full. 2.The defendant failed to enter appearance or file a defence despite being served on 26th September 2024 with the summons to enter appearance and the pleadings. Interlocutory judgment was entered on 14th July 2025. 3.The matter proceeded by viva voce evidence. The Plaintiff’s Case 4.PW1, the plaintiff adopted her witness statement dated 24th August 2025 and testified that she was married to the defendant under Kikuyu customary law in the year 1995. The witness testified that during the subsistence of their marriage she and the defendant jointly acquired four plots of land which constituted their matrimonial property. She stated that they separated in the year 2006, and the defendant continued dealing with some of their matrimonial properties without her consent. On 2nd November 2016, she and the defendant entered into a Memorandum of Understanding (MOU) to govern the disposition of the four plots acquired during their marriage. 5.The plaintiff testified that the terms of the MOU were that the remaining matrimonial property would be sold and that the sale proceeds from the said properties would be shared equally between the parties after deducting the value of improvements made by the defendant to the matrimonial home after the year 2006; that the defendant would produce evidence of payment of the three plots he sold without her consent and reimburse her half of the proceeds;her advocate would release all relevant title documents relating to one acre of land to the defendant’s advocate and give an undertaking to hold the originals and produce them when required to facilitate transfer and sale and she that would withdraw her objection to the defendant’s intended marriage to his partner upon execution of the MOU. The witness further stated that in the event of breach, the aggrieved party would be at liberty to institute specific performance proceedings without further notice. 6.The plaintiff testified that she withdrew her objection to the defendant’s intended marriage by a letter dated 2nd November 2016 addressed to the Attorney General’s chambers upon both of them executing the MOU. The plaintiff further testified that the defendant has failed to dispose of the remaining plot and share the proceeds equally as agreed and he has failed to account for or reimburse her rightful share of the proceeds from the three plots earlier sold without her consent. The defendant is currently in occupation of the said plot with his current wife. 7.The witness stated that she is claiming the whole of the matrimonial house as the defendant sold all of her properties which she bought most of them by herself. The defendant contributed three quarters of the construction costs of the home from her business proceeds. The plaintiff further stated that there was no registration of the marriage and thus no valid marriage to dissolve. 8.The plaintiff agreed to dispose of the suit by way of written submissions. The Plaintiff’s Submissions 9.The plaintiff submits that she and the defendant were married under Kikuyu customary law. The said marriage was contracted and dissolved before the coming into force of the Marriage Act 2014 when there was no legal requirement for the registration of marriages. Relying on the case of Samuel Kamau Macharia & Another vs Kenya Commercial Bank Ltd & 2 Others, SC Application No. 2 of 2011 [2012] eKLR, the plaintiff submits that the Marriage Act 2014 is not applicable in so far as the requirement for registration and formal dissolution of the same is concerned. The plaintiff further argues that the defendant has not rebutted the existence of the said marriage, thus there existed a valid marriage between the plaintiff and the defendant. Further, the defendant proceeded to remarry and the said actions coupled with notification to both parties parents are indicative of the dissolution of the said marriage. 10.The plaintiff submits that the properties in question constitute matrimonial property and the defendant expressly acknowledged the same by executing the MOU. The plaintiff submits that she contributed to the purchase and development of the parcels of land in question. She further submits that she operated a business generating income of approximately Kshs. 30,000/- per day and itwas from that income that she directly contributed to the acquisition of the properties in question. 11.The plaintiff argues that the defendant registered the said properties in his name solely, with the misrepresentation representing that they had been registered in the joint names of both parties. The plaintiff refers to Section 6 of the Matrimonial Property Act and submits that the properties governed by the MOU constitute matrimonial property. The plaintiff further relies on the cases of JJM vs JLM (Matrimonial Cause E057 of 2021) [2025] KEHC 15576 (KLR) and DNK vs KM [2021] KEHC 868 (KLR) and submits that although Section 6(3) of the Matrimonial Property Act expressly provides for pre-nuptial agreements, its silence on post nuptial or separation agreements does not render such agreements unenforceable. The court affirmed that such agreements are contracts sui generis and are enforceable under the general principles of the law of contract. The plaintiff argues that the defendant has not alleged that the MOU was fraudulent, or that it was procured through coercion, undue influence or misrepresentation. Thus it ought to be upheld. Issues for determination 12.The main issues for determination are:-a.Whether the marriage between the parties existed and whether it was dissolved.b.Whether the court may proceed to enforce the Memorandum of Understanding between the parties and divide the matrimonial property in the manner provided by the parties in the agreement. The LawWhether the marriage between the parties was dissolved. 13.The plaintiff testified that she was married to the defendant under Kikuyu Customary Law and they parted ways in the year 2006. From the record, the plaintiff did not provide any evidence of the said marriage but stated that the marriage was not registered and as such it did not call for dissolution. It was further stated that the marriage ended by consent and was witnessed by their parents. 14.It is trite law that he who alleges must prove. The defendant did not participate in the said proceedings and therefore it is only the plaintiff’s word against his. That notwithstanding, it is clear that the plaintiff did not prove that she dissolved the marriage with the defendant. Furthermore, the dispute revolves around the distribution of matrimonial properties pursuant to the memorandum of understanding dated 2nd November 2016 after they allegedly separated. The plaintiff testified that they dissolved their marriage in 2006 and yet the memorandum of understanding is dated 2016. It would have been prudent for the plaintiff to provide proof of marriage and dissolution of the same for the court to enforce the memorandum of understanding. The plaintiff has todischarge the burden of proof even though the defendant did not take part in the proceedings. 15.I have also perused the prayers by the plaintiff and the memorandum of understanding. It is trite law that a court cannot rewrite a contract of the parties. However, it is also trite law that a court cannot grant amorphous orders. The plaintiff seeks special damages of half share of the matrimonial home plot and the proceeds of the three plots sold. The plaintiff has not given any description of the said properties or documents of ownership. Furthermore, the plaintiff alleges that three plots were sold and the defendant did not share the dues. The plaintiff has not described by their reference numbers the properties or given any sale agreements or terms of transfer or sale of the said properties. The plaintiff has not given the consideration paid during the sale of the properties or even the value of such properties. How is the court expected to award damages or decide on the value of the plaintiff’s share, if at all? 16.The plaintiff ought to decide on whether she wants to enforce the attached contract agreement in a court of law. As for a matrimonial cause, this suit cannot qualify as one, in that no dissolution of marriage under the law has taken place to grant jurisdiction to this court to deal with a suit of division of property. As such, a matrimonial suit, is therefore premature. 17.The suit is registered as a civil suit but the main prayer refers to the unreferenced properties forming the subject of this suit as matrimonial” and the property as a “matrimonial home”. Surprisingly, the suit was filed on behalf of the plaintiff by a firm of advocates who ought to have given advice to the plaintiff on how to prepare her case. 18.In my considered view, this suit is misconceived and incompetent and is hereby struck out. 19.The defendant was served as per the affidavit of service dated 30th day of September 2024 but failed to enter appearance. For this reason, there will be no order as to costs. 20.It is hereby so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 21ST DAY OF MAY 2026.F. MUCHEMIJUDGE HC. CIVIL CASE NO. E028 OF 2024 PAGE 0