https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9105

BMW v SWW (Matrimonial Cause E003 of 2023) [2026] KEHC 9105 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KEHC 9105 (KLR) Republic of Kenya In the High Court at Kiambu Matrimonial Cause E003 of 2023 A Mshila, J June 26, 2026 Between BMW Applicant and SWW Respondent Judgment 1.Before Court is the Originating Summons dated 6th February, 2023 and brought under Sections 2, 6, 7 and 17 of the Matrimonial Property Act 2013, Sections 1A, 1B of the Civil Procedure Act, Order 37 of the Civil Procedure Rules, Section 93(3) of the Land Registration Act and all enabling provisions of the law. The Applicant sought for orders That;-a.The Honourable Court be pleased to issue a declaration that the property referred to as Karai/Karai/6436 (situated in Kikuyu-Kamangu within Kiambu County) and registered in the name of SWW, the Respondent herein, is matrimonial property.b.The Honourable Court be pleased to issue a declaration that 50% or such higher proportion of the property referred to as Karai/Karai/6436 and registered in the name of SWW is held for the beneficial interest of the Plaintiff/Applicant, BMW.c.The Honourable Court be pleased to issue an order directing that the property referred to as Karai/Karai/6436 be valued and sold and the proceeds from the sale be shared equally between the parties within 60 days from the date of the order.d.In the alternative to order (c) above the Respondent be and is hereby directed to within 60 days from the date of the order, to pay the Plaintiff/Applicant 50% or such higher value of the property referred to as Karai/Karai/6436.e.That an order be issued declaring the Respondent is accountable to the Applicant in respect of all the rental income derived from property referred to as Karai/Karai/6436 and the income derived from the property be settled in proportions as may be determined by the Court. 2.The Summons is premised on the grounds that the Plaintiff and the Defendant solemnized their marriage on 15/08/2009 but the said marriage was dissolved on 18/1/2023. With the dissolution of the marriage each party’s entitlement should therefore, be determined. 3.In his supporting affidavit BMW deposed that he married the Defendant on 15/8/2009 at Revival Missions Church and the said marriage was dissolved vide Divorce Cause No. 42 of 2019-Kikuyu. He stated that he has been in the business of selling shoes from 2002 while the Defendant works as a Lecturer at Vision Institute of Professionals. He contended that together with the Defendant they acquired the subject property on or about October, 2017 during the subsistence of their marriage hence the said property is matrimonial property. In August 2009 they acquired a plot in Mwihoko at a cost of 150,000/= where they both contributed equally. In 2012, they purchased LR. Muguga/Gitaru/T.9 at a cost of Kshs. 4,700,000/= whereby the Defendant was to take a loan facility and he would take over medical expenses, food as well as periodic pocket money to the Defendant. The Defendant took a loan of Kshs. 1,900,000/= from First Community Bank, Kshs. 3,800,000/= from Stanchart Bank and a further Kshs. 995,000/= and a charge was created over LR Muguga/Gitaru/T.9 for Kshs. 4,795,000/=. Due to financial difficulties the loan ran into arrears and they resolved to sell the property and they found a buyer who was to purchase the property at Kshs. 9,000,000/=. The said amount was deposited at the Defendant’s account so as to offset the loan of Kshs. 4,600,000/=. They were left with a balance of about Kshs. 4,500,000/= which they decided to use to purchase another property being Karai/Karai/6436. He stated that he applied for a loan of Kshs. 1,000,000/=. The Defendant connived with the vendor and had the property registered in her sole name. He did landscaping at a cost of Kshs. 97,550/= to improve the property. He has also connected water from Kikuyu Water Company Limited. Due to the separation, the Defendant rented out the property and has been collecting rent of Kshs. 40,000/= per month totalling to Kshs. 480,000/= as at the time of filing this suit. 4.In opposition to the Summons herein, SWW filed her replying affidavit dated 23rd February, 2023. She averred that she was married to the Plaintiff and the marriage has since ended. She lives on the subject property with her two children having being granted custody of the children and vacant possession in a ruling in Kikuyu Divorce Case No. 42 OF 2019 as such she is opposed to the Defendant’s call for the sale of the property. She contended that apart from being a lecturer at Vision Institute of Professionals, she also practised as an accountant and tax consultant CPA (K) at Wangeci Warui and Company hence she was able to purchase and take a mortgage on Muguga/Gitaru/T.9. She urged the court to expunge exhibits 5,6,7,8,9,10,11,12,16,17 and 21 of the Plaintiff’s supporting affidavit as the documents are private and confidential and were fraudulently obtained by the Plaintiff which matter was reported at Lusegetti Police Station. She averred that the subject matter herein is Karai/Karai/6436 and not LR NO. Muguga/Gitaru/T.9 and that the Plaintiff has not produced evidence of the link between these two properties. Nevertheless, she stated that the documents presented by the Plaintiff show that all the payments, receipts, invoices and documentation relating to the two properties indicate that she is the owner of the said properties as she solely sought for their financing as demonstrated by the Plaintiff. She denied that the suit property is matrimonial property as the same is solely registered in her name. She obtained a mortgage of Kshs. 1 Million and Kshs. 500,000/= for the purchase of the suit property and construction thereon and that Muguga/Gitaru/T.9 was sold because she wanted to construct a modern house. She further took a mortgage of Kshs. 2,000,000/= which she is still paying alone without the help of the Plaintiff. She contended that there was no record of the Plaintiff remitting money into the loan account which he would have done if he wanted to help. She denied that the Plaintiff made any monetary or non-monetary contribution and that she continues to pay for the loan as such the bank has a first claim to the property hence the request by the Plaintiff to have the property sold is untenable. Further, she denied that the Plaintiff obtained a loan to finance the purchase of the suit property as she made all the payments to Coolsoy Properties through Mpesa, Bank transfer and cash. Also denied were the claims that the Plaintiff paid for the agency and advocates fees as there are no receipts to support and instead the Plaintiff purchased motor vehicle registration number KCK 334C. The Defendant contended that the contractor confirmed through a letter that he did not receive any money from the Plaintiff in respect of the subject property and alleged renovations. The Defendant denied that the Plaintiff supported her and instead claimed that she is the one who financially supported the Plaintiff and was shocked to learn that the Plaintiff’s business was not doing badly as always claimed by the Plaintiff when she saw his bank statements in these proceedings. The minimal contribution by the Plaintiff in running of the house was said to be his family obligation as such does not count or prove contribution to the ownership of the subject property. She averred that together with the children they live in the suit property and denied that she has rented out the property and derives rental income. She urged the court to find that she is the sole owner and reject the Plaintiff’s prayer to declare that 50% share is held for the benefit of the Plaintiff. 5.In his Supplementary affidavit dated 9th March, 2023, the Plaintiff contends that in 2018 the Defendant attempted to dispose the subject matter as such he registered a caution hence the need for the court to determine the share of each party. He denied that the Defendant lives on the suit property as she admitted during the divorce proceedings to have rented out the property and collects rent of Kshs. 40,000/=. Further, he averred that the Respondent agreed to earning Kshs. 55,000/= while stating that there is no evidence of additional source of income as a tax consultant hence it was impractical for the Respondent to a service a mortgage of Kshs. 52,583/= every month as well as take care of the other family bills. He contended that he contributed to the family’s well being by paying school fees, medical expenses and other expenses by using his income from his business. He stated that he obtained a loan facility of Kshs. 1 Million where he used Kshs. 200,000/= to pay the agent and the remainder of Kshs. 800,000/= was given to the Respondent in cash. He was included in the purchase agreement with Coolsoy Properties as one of the purchasers of the subject property. The Kshs. 1 Million loan obtained by the Respondent was used to set up a car hire business by the name Bright Steps Car Hire. The Plaintiff contended that since he was repaying his loan of Kshs. 1 Million at the rate of Kshs. 48,313/= he could not help the Respondent in the repayment of her loans as he was also taking care of other household expenses. The Plaintiff stated that he bought his motor vehicle in 2019 which was two years after finalizing on the transaction for the purchase of the subject property which was concluded in 2017. 6.The Respondent filed a further affidavit dated 3rd April, 2023. She contended that the caution was maliciously registered by the Plaintiff because she refused to sell the house as he wanted and that she wanted to take a loan using the property as security. She insisted that she resides at the suit property with her two children. She averred that her salary increased over time as it varied with the hours taught and that she was also earning over Kshs. 200,000/= as a tax consultant for Shoe Brands Ltd and Zetu Dua Company. The Plaintiff indeed signed the agreement but his failure to pay caused his name not to appear in the title. She averred that she paid the legal fees and the alleged agent money paid by the Plaintiff is unknown to her. Further, the Respondent stated that on 10/6/2020 she sent to the Plaintiff Kshs. 592,727/= which was more that the Kshs. 385,000/= which the Plaintiff had sent to her as he intended to open a restaurant business. She denied engaging in rice business with the Plaintiff. 7.In his Further affidavit dated 22nd May, 2023, the Plaintiff mostly reiterated the contents of his Supplementary affidavit save for the fact that he stated that the new sources of income by the Respondent were an afterthought and forgeries. 8.During the hearing hereof, the Plaintiff herein BMW (PW1) relied on his pleadings as his evidence in chief. 9.In cross examination he stated that Muguga/Gitaru/T9 was sold for 9.5 Million and it was a family agreement that the money be deposited in the respondent’s account so as to pay the mortgage using her salary and he was to take care of the family using the income from his business. He contended that he gave Kshs. 800,000/= to the Respondent for the purchase of the subject property. He did not contribute towards payment of the mortgage but took care of the family. 10.SWW (DW1) requested the Court to adopt her replying affidavit and further affidavit as her evidence in chief. She testified that the suit property is not matrimonial property as there was no contribution from the Plaintiff. She sold her plot in Mwihoko for Kshs. 500,000/= so as to acquire the Muguga Property for Kshs. 4.5 Million. She took a mortgage which the Plaintiff never financed but gave spousal consent. The Plaintiff would have obtained a loan to finance if he wanted. She sold Muguga property to buy the subject property in 2017. 11.In cross examination she stated that she made direct contribution for the purchase of Muguga property for Kshs. 4.5 Million. She took a loan and later sold the property for Kshs.9 Million to buy the subject property for Kshs.5.5 Million. She stated that the agency fees receipt is not reliable. 12.After the hearing the parties were directed to file and exchange written submissions. Plaintiff’s Submissions 13.The Plaintiff submits that Karai/Karai /6436 is matrimonial property as it was utilized as the parties matrimonial home and was acquired in 2017 during the subsistence of the marriage between the parties. Reliance was placed in the case of AWM vs JGK (2021) KEHC 4780 (KLR). It was submitted that given the suit property was registered in the sole name of the Defendant, the same was held in trust for the Plaintiff. The Plaintiff submits that the subject property was purchased using the proceeds from the sale of Muguga/ Gitaru.T.9. The Defendant took out the loans and paid off using her salary which was Kshs. 55,570/= and the instalments amounted to Kshs. 55,836/= as such the Plaintiff took all the obligations such as medical expenses for the family, food expenses, school fees, upkeep for the family. The said property was later sold and the proceeds were used to purchase the subject property. It was submitted that the Plaintiff undertook major improvements on the Muguga property so as to attract buyers. He also engaged an agent to source for a buyer and they got someone who bought the property for Kshs. 9 Million while at the same time paid legal fees for the sale of Muguga property. The Plaintiff was said to have signed spousal consent in all the loans secured. That the Plaintiff’s salary after the loan deductions would not have been enough to cater for the family. The additional payslips by the Defendant were said to be a forgery and that there was no proof of any other income as such the Plaintiff urged the court to find that he contributed towards the acquisition of Muguga property. The Plaintiff avers that he contributed towards the acquisition and improvement of the subject property as the proceeds were from the sale of Mwihoko property which was jointly owned and sale of Muguga property. The Plaintiff submitted that he also made renovations on Muguga property, engaged a property agent to source for a buyer, paid legal fees, obtained a loan of Kshs. 1 Million from K-Unity Sacco, connected water on the suit property, facilitated landscaping, paid medical expenses for the family, food expenses, school fees and upkeep for the family, operated a rice business with the Defendant, started a butchery for family benefit, bought motor vehicle KCK 334C for use by the family and lastly that he took care of the children while the Defendant was lecturing on weekends and evenings. Further, the Plaintiff submitted that the parties had entered into an agreement and the suit property was to be registered in both their names only for the property to be registered in the sole name of the Defendant. The court was also urged to take into consideration non-monetary contribution. Reliance was placed in the case of NWM vs KNM (2014) eKLR. Lastly, the court was urged to hold the Defendant accountable for the Kshs. 40,000/= collected as rent from the subject property since their separation in 2022. Each party was asked to bear their costs. Respondent’s Submissions 14.The Respondent submits that Karai/Karai/6436 was acquired on 3/10/2017 during the subsistence of the marriage between the two parties therefore, a matrimonial home. It was submitted that the suit property was acquired by the Respondent without monetary or non-monetary contribution of the Plaintiff she produced the title in her name, two mortgage facilities, further charge, official search and bank statements to prove that she paid for the mortgage. The seed capital for the acquisition of the suit property was the sale of Muguga property which was solely owned by the Respondent. The Plaintiff despite signing the agreement dated 21/7/2017 refused to contribute. Further, the Respondent contended that other than selling the Muguga property she also obtained several loans from the bank to facilitate the acquisition and development of the suit property. It was submitted that contribution must be more than words and promises as it must be actual unlike the attempts made by the Plaintiff to prove monetary and non-monetary contribution. It was submitted that matrimonial property ought to be distributed according to contribution of each party towards acquisition. Reliance was placed in the case of PNN vs ZWN (2017) eKLR. The property could not to be held in trust for the Plaintiff as there was no proof of monetary or non-monetary contribution as the Plaintiff had refused to contribute. The court was urged not to use the doctrine of equality in the division of the subject property herein as the same does not apply. Issues For Determination 15.Having considered the Plaintiff’s Summons for division of matrimonial property and the affidavits in support thereof, the Respondent’s replying affidavit and the further affidavit as well as the parties written submissions, the issues arising for determination are-i.Whether Karai/Karai/6436 constitutes matrimonial property;ii.Whether the Plaintiff is entitled to a share of the suit property; Analysis Whether Karai/Karai/6436 constitutes matrimonial property 16.The Plaintiff has sought this court to issue a declaration that the suit property being Karai/Karai/6436 situated in Kikuyu-Kamangu and registered in the name of SWW, the Defendant herein is matrimonial property. 17.Section 6 of the Matrimonial Property Act defines matrimonial property as:(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. 18.Refer to the case of T.M.V. vs F.M.C (2018) eKLR where Nyakundi J. opined that:-“...for property to qualify as matrimonial property, it ought to have been acquired during the subsistence of the marriage between the parties unless otherwise agreed between them that such property would not form part of matrimonial property.” 19.The Plaintiff and the Defendant solemnized their marriage on 15/08/2009 at Revival Mission Church. This fact is not disputed by either party. The evidence on record shows that the subject property herein was acquired on or about 15/7/2017. 20.In the circumstances and bearing the above in mind, it therefore, follows that Karai/Karai/6436 constitutes matrimonial property as it was acquired during the subsistence of the marriage between the parties herein. Whether the Plaintiff is entitled to a share of the suit property 21.The Plaintiff also sought for the Court to issue a declaration that 50% of the suit property is held for his beneficial interest by the Respondent. 22.Section 14(a) of the Matrimonial Property Act creates a presumption of trust where property is registered in the name of one spouse. The provision states;“where matrimonial property is acquired during marriage-a.In the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse….” 23.Nevertheless, ownership of matrimonial property vests in the spouses according to their contribution. 24.Section 7 of the Matrimonial Property Act is clear in its terms that:“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.” 25.Refer to the case of H.N.M vs F.T.S (2021) eKLR where Gikonyo J observed that ownership of matrimonial property vests in accordance with the contribution of the spouse towards its acquisition or development of the property. 26.Subsequently, contribution towards the acquisition of matrimonial property is defined under Section 2 of the Matrimonial Property Act, 2013 in the following terms;-In this Act, unless the context otherwise requires—“contribution” means monetary and non-monetary contribution and includes—a)domestic work and management of the matrimonial home;(b)child care;(c)companionship;(d)management of family business or property; and(e)farm work. 27.The Plaintiff contends that as much as the subject property herein is registered in the sole name of the respondent, he is entitled to a 50% share as he made both monetary and non-monetary contribution towards the acquisition and development of the subject property. 28.The Plaintiff has gone to great lengths to demonstrate how the subject property was acquired. 29.It is not in dispute that from the evidence on record the suit property herein was acquired from among other sources of money, the proceeds from the sale of Muguga/Gitaru/T.9. 30.The Defendant has equally explained in details with the help of documentary evidence that she solely acquired Karai/Karai/6436 hence the reason why the said property is registered solely in her name despite the property being acquired during the subsistence of her marriage with the Plaintiff. 31.The Defendant avers that she disposed the MWIHOKO property for Kshs. 600,000/=, obtained a loan of Kshs. 1.9 Million from First Community Bank as well as Kshs. 3.8 Million from Standard Chartered Bank so as to facilitate the purchase of LR. NO. Muguga/Gitaru/T.9 for Kshs. 4.7 Million. She averred that she was servicing these loans without the help of the Plaintiff. 32.Later she made the decision to sell the Muguga property and it was sold for Kshs. 9 Million to enable her clear the outstanding loan amount of Kshs. 4.5 Million and that she used the balance of 4 Million to buy the suit property herein. Being that the said amount was not enough as the property costed Kshs. 5,558,000/= she obtained a loan of Kshs. 1 Million from First Community Bank and a further Kshs. 2 Million. 33.It was also her evidence that she has been paying the loan without the help of the Plaintiff as such the suit property belongs to her and the Plaintiff is not entitled to any share. The Plaintiff was included in the agreement but was left out during registration of title as he had not contributed. 34.On the other hand, the Plaintiff in his attempt to prove both monetary and non-monetary contribution, he contended that for the Respondent to be able to acquire Muguga property he took all the family obligations, made major renovations on the Muguga property amounting to Kshs. 267,000/= while at the same time engaged a property agent to source for a buyer for the Muguga property and that he paid the legal fees during the sale of the Muguga property. In addition he stated that once the Muguga property was sold, he also obtained a loan of Kshs. 1 Million and that he gave the Respondent Kshs. 800,000/= towards the acquisition of the suit property. 35.The Plaintiff claims that while the Defendant was paying the loans, he is the one who was taking care of the household by paying for medical expenses for the family, food expenses, school fees and upkeep for the family. 36.It is clear that in the case herein both parties have gone into great lengths to prove their case. The Plaintiff’s main contention is that he is entitled to the suit property as he made both monetary and non-monetary contribution towards the acquisition of various properties including the suit property. 37.On the other hand, the Defendant’s contention is that she solely acquired the various properties including the suit property by obtaining several loans which she has serviced without the help of the Plaintiff. 38.In the case of Muthembwa vs Muthembwa (2002) 1 KLR page 92 the court found that;“In assessing the contribution of spouses in acquisition of matrimonial property each case must be dealt with on the basis of its peculiar facts and circumstances but bearing in mind the principle of fairness. The jurisdiction of the court is to determine a question or questions between husband and wife principally as to title to or possession of property. 39.There is no doubt that the Defendant is the registered owner of the suit property herein as well as the other properties that had been acquired during the pendency of the marriage between the parties herein. 40.The Plaintiff’s explanation as to why the Defendant is solely registered as the owner of these properties is that the Defendant was in formal employment as such she was able to obtain the mortgage facilities which enabled her to acquire the subject property among others while in turn he took care the household obligations. 41.The Defendant was able to prove to this court that indeed she obtained these loan facilities as the bank has a charge over the title to the suit property. The evidence on record shows that the Defendant is the one who is servicing the said loans without the help of the Plaintiff. 42.Be that as it may, as much as the Defendant denies that the Plaintiff has made any direct or in- direct contribution towards the acquisition of any of the properties including the suit property, it is this court’s considered opinion that the Plaintiff must have helped with taking care of the household when the Defendant was using her income to pay the loans. 43.Distribution of matrimonial properties is based on each party’s contribution both monetary and non-monetary. 44.In the case of BWK vs SMM (2024) KEHC 10489 (KLR) the High Court underscored that division of matrimonial property depends on the contribution of each spouse. The court noted that non-monetary contributions are recognized and must be proven to determine the share each spouse is entitled to. 45.Further, in the case of PNN vs ZWN (2017) eKLR the Court of Appeal held that matrimonial property should be distributed according to the proven contribution of each spouse, whether monetary or non-monetary. 46.It is this court’s finding that parties to a marriage are not automatically entitled to a ratio of 50:50 share of the matrimonial properties upon dissolution of the marriage. The same is dependent on contribution. 47.Reference is made to the Supreme Court of Kenya in the matter of JOO vs MBO & 2 others (2023) KESC 4 (KLR) the Supreme Court opined that;-“the guiding principle in matrimonial property division was contribution. A party must prove contribution-monetary or non-monetary-to be entitled to a share.”The Supreme Court further opined that;“in this regard our view is that, while Article 45(3) deals with equality of the fundamental rights of spouses during and after dissolution of marriage, we must reiterate that equality does not mean the re-distribution of proprietary rights at the dissolution of a marriage. Neither does our reading of this provision lead to the assumption that spouses are automatically entitled to a 50% share by fact of being married.” 48.In the circumstances, therefore, and bearing in mind the evidence on record, this Court is satisfied that on a balance of probabilities the Respondent made the larger contribution towards the acquisition and the development of Karai/Karai/6436. And is satisfied that the Plaintiff is entitled a 40% beneficial interest in the suit property. Findings And Determinations 49.For the forgoing reasons this Court makes the following findings and determinations;i.The application is found to be with merit and it is hereby allowed.ii.It is hereby declared that the property Karai/Karai/6436 (situated in Kikuyu-Kamangu within Kiambu County) and registered in the name of SWW, in its entirety was acquired during the pendency of the marriage and constitutes matrimonial property.iii.It is hereby declared that the Plaintiff/Applicant is entitled to rights to the properties on a 40:60 ratio with the greater share being in favour of the Respondent. The above stated property be settled and/or divided and/or sold and the proceeds of the said division and/or sale be shared to each party on the basis of 40:60i.This being a family matter each party to bear their own costs.Orders Accordingly DATED SIGNED AND DELIVERED VIA TEAMS AT VOI THIS 26TH DAY OF JUNE, 2026A.MSHILAJUDGEIn the presence of;Sanja/Trizah – Court AssistantsSoi - For the PlaintiffNjue - For the Defendant