https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7333

BSO v DOO (Matrimonial Cause 1 of 2020) [2026] KEHC 7333 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7333 (KLR) Republic of Kenya In the High Court at Narok Matrimonial Cause 1 of 2020 CM Kariuki, J May 28, 2026 Between BSO Plaintiff and DOO Defendant Judgment A. Introduction 1.This Judgment concerns a matrimonial property dispute between the Plaintiff, BSO, and the Defendant, DOO, following the dissolution of their marriage. The Plaintiff seeks declarations that several movable and immovable properties acquired during the subsistence of the marriage constitute matrimonial property jointly owned by the parties and therefore liable to distribution in accordance with the law. The Plaintiff further seeks orders for equal sharing of the said properties, compensation in respect of any property disposed of by the Defendant, and injunctive relief restraining interference with her beneficial interest therein. 2.The dispute principally turns on whether the properties listed in the Amended Plaint were acquired during the subsistence of the marriage and, if so, whether the Plaintiff proved contribution, whether direct or indirect, towards their acquisition so as to entitle her to a beneficial share under the Constitution of Kenya, 2010, and the Matrimonial Property Act, No. 49 of 2013. The Court is also called upon to determine the appropriate proportion of distribution, taking into account the evidence tendered by both parties and the applicable legal principles governing matrimonial property disputes. B. pleadings Amended Plaint 3.In the Amended Plaint dated 20th March 2019, the Plaintiff, BSO, described herself as an adult female residing and working in Nakuru, while the Defendant, DOO, was described as an adult male residing and working in Narok. The Plaintiff pleaded that the parties contracted a customary marriage on or about 26th February 1993, which union was blessed with four children. 4.The Plaintiff further averred that the marriage was dissolved by the Chief Magistrate’s Court at Nakuru on 11th December 2018, and that a decree nisi was subsequently issued. She contended that during the subsistence of the marriage, the parties jointly acquired several properties which she considered matrimonial property. The properties listed in the plaint included Plot No. XXX Block 9 (Residential) in Narok Town, one acre shamba without title at Nyansiongo Village, motor vehicle registration number KBD 4XXX (Station Wagon), Plot No. XXX L.D Block II, Plot No. XXX L.D Block 9, Plot No. 83 Rotian Location, and Plot No. XXX Block II. 5.The Plaintiff pleaded that she substantially contributed towards the acquisition of the said properties by obtaining loans, which were utilized in purchasing the properties. She maintained that the listed assets constituted matrimonial property for all intents and purposes and asserted entitlement to an equal share thereof in accordance with the law. 6.It was further pleaded that despite demand and notice of intention to sue having been issued, the Defendant had refused and/or neglected to share the matrimonial property with the Plaintiff. The Plaintiff also averred that there was no other pending suit or previous proceedings between the parties over the same subject matter and asserted that the Court had jurisdiction to hear and determine the matter. 7.Consequently, the Plaintiff sought several reliefs from the Court, including;a.A declaration that the properties in question are matrimonial properties owned jointly by the Plaintiff and the Defendant.b.A declaration that the Defendant held the properties in trust for the beneficial interest of the Plaintiff.c.An order that the matrimonial property should be shared equally between the parties and that any property sold by the Defendant to be compensated to the Plaintiff to the extent of her due share.d.A permanent injunction restraining the Defendant from interfering with the Plaintiff’s access to her rightful share in respect thereof.e.Costs of this suit and interest. Statement of defence 8.In the Statement of Defence dated 21st May 2019, the Defendant, Daniel Osoro Ombaye, denied all the allegations contained in the Amended Plaint except those expressly admitted. He admitted the descriptive particulars of the parties and acknowledged that the parties contracted a customary marriage on or about 26th February 1993. He further admitted that the marriage had been dissolved by the Chief Magistrate’s Court at Nakuru on 11th December 2018. However, the Defendant contended that the Plaintiff’s claim was premature because the prerequisites for dissolution of a Kisii customary marriage, including the return of dowry, had not been fulfilled, and therefore, according to him, the marriage still subsisted. 9.The Defendant denied the Plaintiff’s assertion that the suit properties were jointly acquired matrimonial properties and maintained that he solely acquired all the listed properties without any contribution from the Plaintiff. He pleaded that Plot No. XXX Block 9 (Residential) in Narok Town was purchased by him alone on or about 11th December 1996, when the Plaintiff had only recently joined the marriage and had not contributed towards its acquisition. 10.With regard to the one-acre parcel at Nyansiongo Village, the Defendant averred that he inherited ancestral land from his late father, sold the same, and used the proceeds to purchase the Nyansiongo property. He similarly asserted that motor vehicle registration number KBD 4XXX was acquired exclusively through his own savings and that the Plaintiff did not contribute in any manner to its purchase. He further pleaded that he later sold the motor vehicle and applied the proceeds towards the educational needs of the parties’ four children. 11.The Defendant further averred that Plot No. XXX L.D Block II was allocated to him personally by the then Councillor for Narok Town sometime in 2004, without any contribution from the Plaintiff. He also stated that Plot No. 83 Rotian Location was purchased through his own savings and that Plot No. XXX Block II was acquired through his shares in Afya Sacco Society Limited, again without any contribution from the Plaintiff. 12.The Defendant denied the Plaintiff’s allegation that she obtained loans which contributed towards the acquisition of the properties. He averred that at the time the Plaintiff allegedly obtained the loans, she was a student at Kenya Medical Training College (KMTC) and that the loans were instead utilized to finance her studies and personal expenses. 13.The Defendant further denied that the listed properties constituted matrimonial property within the meaning alleged by the Plaintiff, maintaining that the Plaintiff made no contribution whatsoever towards their acquisition. He also denied that the Plaintiff was entitled to an equal share of the properties or to any of the reliefs sought in the plaint. 14.While admitting the averments relating to the absence of any previous proceedings and the jurisdiction of the Court, the Defendant maintained that the Plaintiff’s suit disclosed no reasonable cause of action and was frivolous, misconceived, bad in law, and an abuse of the court process. Consequently, he prayed that the suit be dismissed with costs. C. Evidence 15.The Plaintiff, PW1 BSO, testified that she resides in Nakuru and works as a nurse at the County Referral Hospital, Nakuru. She stated that the Defendant was her husband, though they had since divorced. She produced a decree absolute dated 11th December 2018 and issued in June 2020. She adopted her witness statement dated 7th February 2019 and filed on 5th March 2019 as part of her evidence. She also relied on her bundle of documents and the list of documents filed on 5th March 2019. It was her testimony that during the subsistence of the marriage, they acquired several properties which, although registered in the Defendant’s name, were jointly acquired and to whose acquisition she contributed financially. 16.In her witness statement, PW1 stated that she married the Defendant under customary law on 26th February 1993 and that they cohabited for over twenty years. Their marriage was blessed with four children. She testified that the marriage was dissolved by the Chief Magistrate’s Court at Nakuru on 11th December 2018 after it irretrievably broke down. She further stated that during the marriage, they jointly acquired several properties, namely Plot No. XXX L.D Block II (Residential) Narok Town, Plot No. 9 (Residential) Narok Town, Plot No. 83 Rotian (Commercial) Location, one acre shamba without a title deed at Nyansiongo Village, and motor vehicle registration number KBD 4XXX. She explained that she obtained loans on two occasions from Afya Sacco and that the proceeds of the loans were utilized to finance the acquisition of the said properties. She therefore urged the Court to declare the properties matrimonial property jointly owned by the parties and to order equal distribution, including compensation in respect of any property sold by the Defendant. 17.PW1 also produced a list of documents comprising allotment letters for Plot No. XXX L.D Block II dated 2nd November 2006, Plot No. XXX L.D Block 9 dated 5th June 2009, Plot No. 83 Rotian Location, a loan analysis dated 3rd August 2011, her loan statement dated 30th August 2011, allotment letter for Plot No. XXX Block II dated 5th June 2009, documents relating to motor vehicle registration number KBD 4XXX, and documents relating to the one-acre shamba at Nyansiongo Village. 18.Upon cross-examination, PW1 testified that she was married to the Defendant on 26th February 1993 and that she contributed towards the acquisition of all the suit properties through Sacco savings and loans. She stated that Plot No. XXX Block 9 in Narok Town was acquired in 1994 at a purchase price of Kshs. 75,000/=, and that she financed the entire purchase price through a Sacco loan taken in February 1994. She, however, conceded that the property was registered solely in the Defendant’s name and that she did not possess any registration documents in her favour. 19.With regard to the one-acre shamba at Nyansiongo Village, PW1 testified that it was acquired in 1998 and that she contributed using her savings. However, she admitted that she had no sale agreement or documentary proof of her contribution. On motor vehicle registration number KBD 4XXX, she testified that the vehicle was jointly purchased between 2009 and 2010 at Mombasa for Kshs. 750,000/=. She stated that although the vehicle was registered in the Defendant’s name, she contributed towards its acquisition through proceeds from farming. She, however, conceded that she could not state the precise amount she contributed and that she did not know whether the Defendant still possessed the vehicle, having last seen it in January 2011. 20.PW1 further testified that she filed for divorce in 2018 after separating from the Defendant in January 2011. She stated that Plot No. XXX L.D Block II was acquired in 2008 and allotted in the Defendant’s name by the Narok County Council. She testified that she contributed Kshs. 7,500/= towards payments made to the County Council, although she had no documentary proof of the said payment. 21.Regarding Plot No. XXX L.D Block 9, PW1 stated that the property was acquired in 1998 from an individual at a purchase price of Kshs. 25,000/=, though she had no copy of the sale agreement. On Plot No. 83 Rotian Location, she testified that the property was acquired in 2006 at a purchase price of Kshs. 55,000/= and that she paid the entire amount through loans of Kshs. 289,000/= and Kshs. 426,000/= obtained from Afya Sacco. She produced a loan statement dated 30th August 2011 and stated that although the property was registered in the Defendant’s name, she trusted him because he was her husband. Nonetheless, she conceded that she had no documentary proof showing that the loan proceeds were directly utilized in purchasing the land. 22.As regards Plot No. XXX Block II, PW1 testified that the property was acquired in 2009 from the County Council of Narok and allotted to the Defendant, who later transferred it to their daughter. She further stated that she took loans in 2004, which were utilized in developing rental houses on Plot No. XXX. She clarified that the loans were not used to finance her studies at KMTC, where she enrolled in 2004, but rather to develop the family properties. She further testified that she contributed towards the children’s education and welfare from her salary, savings, and business proceeds, though she had no documentary proof of such payments. 23.On re-examination, PW1 stated that at the time the properties were being acquired, she never anticipated divorce and therefore trusted the Defendant completely. She testified that school fee receipts were usually issued in the names of the children and not parents. She reiterated that she is the mother of the parties’ four children, who were born between 1994 and 2006, and that she continued supporting and living with them even after the separation in 2011. She further stated that the loans she obtained were taken with the Defendant’s knowledge and agreement, although no written agreements were made whenever she contributed money towards the acquisition of the properties. 24.The Defendant, DW1 DOO, testified that he resides in Narok Town and is a retired nurse. He adopted his witness statement dated 21st May 2019, together with his list of documents filed on the same date as part of his evidence. In his witness statement, he stated that he married the Plaintiff under Kisii Customary Law and that they had four children. He maintained that despite the divorce proceedings, no decree absolute had been issued and that the customary prerequisites for dissolution of a Kisii customary marriage, including return of dowry, had not been fulfilled. He therefore believed that the marriage still subsisted and that the Plaintiff’s claim was premature. 25.DW1 testified that he solely acquired all the suit properties without any contribution from the Plaintiff. He stated that Plot No. XXX Block 9 in Narok Town was purchased solely by him on 11th December 1996, when the Plaintiff had only recently joined the marriage. He produced a sale agreement dated 11th December 1996 as Defence Exhibit 1. He further testified that he inherited ancestral land from his late father, sold it for approximately Kshs. 3 million, and used part of the proceeds to acquire the one-acre parcel at Nyansiongo Village. 26.Regarding motor vehicle registration number KBD 4XXX, DW1 testified that he acquired the vehicle through his own savings, proceeds from wheat farming, bank loans, and financial assistance from friends. He stated that he farmed wheat on five acres of land and earned approximately Kshs. 100,000/=, after which he borrowed Kshs. 400,000/= from the National Bank and additional sums from a friend to purchase the vehicle for Kshs. 750,000/=. He denied that the Plaintiff contributed towards its acquisition and stated that the Plaintiff was unaware of the purchase until she saw the vehicle. He further testified that he later sold the vehicle in order to pay school fees and other educational expenses for their children. He produced school fees deposit slips as Defence Exhibit 2. 27.DW1 further testified that Plot No. XXX L.D Block II was allocated to him personally by a councillor in Narok Town around 2004 and that he paid Kshs. 45,000/= using money borrowed from his cousin. He maintained that the Plaintiff never contributed towards the acquisition of the property. Similarly, he stated that Plot No. 83 Rotian Location was purchased entirely through his own savings and produced a sale agreement as Defence Exhibit 3. He also testified that Plot No. XXX Block II was acquired through his shares in Afya Sacco Society Limited, and he produced a cash voucher as Defence Exhibit 4. 28.DW1 further testified that the Plaintiff was a student at Kenya Medical Training College at the time she allegedly obtained loans and that the loans were utilized to finance her education rather than purchase family property. He produced a copy of the Plaintiff’s admission letter as Defence Exhibit 5. He maintained that the Plaintiff never contributed financially towards the acquisition of any of the properties and that she was secretive regarding her financial affairs. 29.Upon cross-examination, DW1 admitted that the parties started cohabiting in 1993 and that at the time they acquired the properties, they had no expectation of divorce. He confirmed that they never documented any contributions made by either party because there was mutual trust in the marriage. He conceded that he had no documentary proof showing the purpose of the loans he obtained for the purchase of the plots. He also acknowledged that all the plots were registered in his name and that he later transferred one of the plots to their daughter without involving the Plaintiff. He admitted that he did not obtain the Plaintiff’s consent before transferring or disposing of some of the properties, including the motor vehicle, after separation. 30.On re-examination, DW1 reiterated that the Plaintiff never contributed to farming activities or acquisition of the properties. He maintained that all the properties belonged exclusively to him and that the Plaintiff never informed him of any loans allegedly taken for purposes of purchasing the properties. He further stated that some of the properties had since been transferred or disposed of before the suit was filed. D. Submissions The plaintiff’s submissions. 31.The Plaintiff submitted that she and the Defendant solemnized their marriage in February 1993 and were blessed with four daughters, all of whom are now adults. It was submitted that during the subsistence of the marriage, the parties jointly acquired several properties, though registered in the Defendant’s name, and that the Plaintiff made both direct and indirect contributions towards their acquisition. Counsel further submitted that the parties separated in 2011 and the marriage was subsequently dissolved on 11th December 2018. The Plaintiff thereafter instituted the present suit seeking declarations that the listed assets constitute matrimonial property and for equitable distribution thereof. 32.On the issue regarding the propriety of instituting the claim by way of a Plaint, the Plaintiff submitted that the suit was properly before the Court, notwithstanding the Defendant’s objection to the form of pleadings. Reliance was placed on Articles 22(3)(b) and (d) as well as Article 159(2)(d) of the Constitution of Kenya, 2010, which require courts to administer justice without undue regard to procedural technicalities and to minimize procedural formalities. Counsel argued that the constitutional provisions protect substantive justice and that the Plaintiff’s claim ought not to be defeated merely on account of the mode of commencement. 33.Regarding whether the listed properties constitute matrimonial property, the Plaintiff relied on Section 6(1) of the Matrimonial Property Act, No. 49 of 2013, which defines matrimonial property to include matrimonial homes, household goods and effects, and any movable or immovable property jointly owned or acquired during the subsistence of a marriage. It was submitted that the following properties were all acquired during the marriage and therefore fall within the statutory definition of matrimonial property: Plot No. XXX Block 9 (Residential), Narok; one acre shamba at Nyansiongo village; motor vehicle registration number KBD 4XXX (Station Wagon); Plot No. XXX LD Block 421; Plot No. 83 Rotian Location; and Plot No. XXX Block II. 34.On contribution, counsel submitted that Section 2 of the Matrimonial Property Act recognizes both direct and indirect contribution, including monetary contribution, domestic work, and management of the matrimonial home, child care, companionship, and farm or business work. The Plaintiff contended that she had demonstrated through documentary evidence that she obtained loans contemporaneously with the acquisition of the suit properties and that the funds were utilized towards the purchases. Counsel argued that the correlation between the loans and the acquisition of the properties established a financial contribution on the Plaintiff’s part. It was further submitted that the Defendant failed to adduce evidence showing the source of funds used to acquire the properties, thereby leaving the Plaintiff’s evidence uncontroverted. 35.In support of the foregoing submissions, reliance was placed on Echaria v Echaria [2007] eKLR, where the Court of Appeal held that both financial and non-financial contributions are relevant considerations in determining beneficial interests in matrimonial property. The Plaintiff also cited PWK v JKG [2015] eKLR, in which the Court held that a spouse who proves direct or indirect contribution is entitled to a share of matrimonial property. Further reliance was placed on TMW v FMC [2018] eKLR, where the Court emphasized that contribution is not confined to monetary input and that a spouse disputing contribution bears the burden of disproving the same. 36.On distribution, the Plaintiff submitted that Section 7 of the Matrimonial Property Act provides that ownership of matrimonial property vests in spouses according to their respective contributions towards acquisition. Counsel argued that the Plaintiff had established substantial contribution both directly, through financial input and loans, and indirectly, through domestic responsibilities, companionship, child upbringing, and support rendered during the marriage. It was contended that the Defendant had failed to prove sole acquisition of the properties or to exclude the Plaintiff’s contribution. Consequently, the Court was urged to declare all the listed properties matrimonial property and to order equitable distribution between the parties, either equally or in such proportions as the Court may deem just. The Plaintiff also prayed for costs of the suit and any further relief the Court considered appropriate. The defendant’s submissions. 37.The Defendant submitted that the Plaintiff instituted the suit seeking declarations that several listed properties constituted matrimonial property jointly owned by the parties, that the Defendant held the same in trust for the Plaintiff, and that the properties ought to be shared equally upon dissolution of the marriage. The Defendant further noted that the Plaintiff sought compensation in respect of any properties allegedly sold by the Defendant, a permanent injunction restraining interference with her claimed share, as well as costs and interest. 38.Counsel submitted that although the parties were married under Kisii customary law on or about 26th February 1993 and were blessed with four children, the Plaintiff’s claim was premature because the customary requirements for dissolution of a Kisii customary marriage, including return of dowry, had not been fulfilled. It was contended that despite the decree issued by the Chief Magistrate’s Court at Nakuru on 11th December 2018, the customary marriage still subsisted. 39.The Defendant submitted that all the listed properties were solely acquired by him without any contribution from the Plaintiff. Regarding Plot No. XXX Block 9 (Residential) in Narok Town, it was argued that the same was purchased on or about 11th December 1996 when the Plaintiff had only recently joined the marriage and had made no contribution towards its acquisition. In respect of the one-acre parcel at Nyansiongo village, counsel submitted that the Defendant inherited ancestral land from his late father, sold the same, and utilised the proceeds to acquire the Nyansiongo property. It was therefore argued that the Plaintiff neither contributed to the purchase nor acquired any beneficial interest therein. 40.About motor vehicle registration number KBD 4XXX, the Defendant submitted that the same was acquired solely through his personal savings, proceeds from wheat farming, and a bank loan. Counsel stated that the vehicle was later sold and the proceeds utilised to meet the educational expenses of the parties’ children. It was further submitted that Plot No. XXX LD Block II was allocated to the Defendant personally by a councillor in Narok Town in 2004, while Plot No. 83 Rotian Location was purchased through the Defendant’s own savings. Counsel also submitted that Plot No. XXX Block II was acquired through the Defendant’s shares in Afya Sacco Society Limited, without any contribution by the Plaintiff. 41.The Defendant further submitted that the Plaintiff failed to adduce credible evidence proving contribution towards the acquisition of any of the properties. Counsel argued that although the Plaintiff relied heavily on loan statements from Afya Sacco, the said documents merely demonstrated that she obtained personal loans and did not establish that the funds were utilised to purchase or develop the suit properties. It was contended that the loan statement produced did not specify the purpose of the loan and that the Plaintiff had failed to correlate the alleged loans with the acquisition dates of the properties. Counsel maintained that the Plaintiff was, at the material time, a student at Kenya Medical Training College (KMTC), and the Defendant’s position was that the loans were instead used to finance her studies and personal needs. 42.It was further submitted that, despite alleging that she financed some purchases entirely, the Plaintiff failed to produce sale agreements, receipts, transfer documents, acknowledgements, or any documentary evidence connecting her funds to the acquisition of the properties. Counsel emphasised that none of the suit properties was registered jointly in the parties’ names and that all allotment letters, sale agreements, and ownership documents were exclusively in the Defendant’s name. According to the Defendant, the Plaintiff, being an adult of sound mind and financially independent, would have ensured that her name appeared in the ownership documents had she genuinely contributed to the acquisition. 43.The Defendant also challenged the Plaintiff’s reliance on Section 6(1) of the Matrimonial Property Act, submitting that while the provision merely defines matrimonial property, the applicable provision on distribution is Section 7 of the Act, which requires division according to each spouse’s proven contribution. Counsel argued that the mere acquisition of property during the subsistence of marriage does not automatically entitle a spouse to an equal share absent proof of contribution. 44.In support of the foregoing position, reliance was placed on Section 7 of the Matrimonial Property Act, which provides that ownership of matrimonial property vests in spouses according to their respective contributions towards acquisition. Counsel submitted that courts have consistently interpreted the provision to mean that matrimonial property is not subject to automatic equal distribution upon divorce. 45.The Defendant relied on the Supreme Court decision in J.O.O v M.B.O, where the Court held that equality under Article 45(3) of the Constitution does not translate into automatic 50:50 sharing of matrimonial property, but rather requires courts to ascertain each spouse’s actual contribution to ensure fair distribution. Reliance was also placed on EGM v BMM [2020] eKLR, where the Court of Appeal held that the Constitution does not grant spouses automatic equal ownership merely by virtue of marriage, and that distribution must correspond to respective contributions. 46.Counsel further cited M E K v G L M [2018] eKLR, where the Court emphasised that equality in marriage does not encourage dependency and that benefits must correspond with responsibilities and contribution. Reliance was additionally placed on AMM v SMN [2022] KEHC 367 (KLR), where the Court discussed inherited property acquired during marriage and adopted the reasoning in SN v FM [2019] eKLR that inherited property acquired during the subsistence of marriage may constitute matrimonial property unless excluded by law. However, counsel argued that in the present case, the Plaintiff had not demonstrated contribution towards the Nyansiongo property allegedly purchased using proceeds from inherited land. 47.The Defendant also relied on UMM v IMM [2014] eKLR, where Justice Kiage observed that Article 45(3) of the Constitution does not decree automatic equal sharing and that each spouse should walk away from a marriage with what they deserve based on proven contribution, whether monetary or non-monetary. 48.On costs, counsel submitted that costs follow the event and relied on the Supreme Court decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR. It was argued that the Plaintiff failed to prove contribution and that the proceedings were unnecessary and devoid of merit. Consequently, the Court was urged to dismiss the suit with costs to the Defendant. E. ISSUES FOR DETERMINATION 49.Having considered the pleadings, evidence, documentary exhibits, and rival submissions by the parties, the following issues arise for determination;i.Whether the marriage between the Plaintiff and the Defendant was dissolved, and whether the suit is properly before the Court.ii.Whether the properties listed in the Amended Plaint, such as Plot No. XXX Block 9 and Plot No. 83 Rotian Location, qualify as matrimonial property under the Matrimonial Property Act, including relevant legal definitions and thresholds.iii.Whether the Plaintiff proved contribution, whether direct or indirect, towards the acquisition and development of the suit properties, including the types of evidence required and standards of proof to satisfy the court.iv.Whether the Plaintiff is entitled to the reliefs sought, including distribution of the matrimonial property.v.Who should bear the costs of the suit? F. ANALYSIS AND DETERMINATION Whether the marriage between the Plaintiff and the Defendant was dissolved, and whether the suit is properly before the Court 50.It is not disputed that the parties contracted a marriage under Kisii customary law on or about 26th February 1993 and were blessed with four children. It is equally common ground that the parties separated in or about January 2011, and divorce proceedings were subsequently instituted before the Chief Magistrate’s Court at Nakuru. 51.The Plaintiff produced a decree absolute arising from the divorce proceedings and testified that the marriage was dissolved on 11th December 2018. The Defendant, while admitting the divorce proceedings, contended that the dissolution of the marriage was incomplete because the customary requirements for dissolution of a Kisii customary marriage, including return of dowry, had not been fulfilled. 52.On the Defendant’s contention, once a competent court issued a decree dissolving the marriage, the legal effect thereof cannot be defeated by the alleged non-compliance with certain customary processes. Under Article 159(2)(a) of the Constitution, judicial authority is exercised in accordance with the Constitution and the law. The decree issued by the court remained valid and binding unless set aside on appeal or review. No evidence was tendered to show that the decree absolute had been vacated or annulled. 53.Further, Section 17 of the Matrimonial Property Act expressly permits a spouse or former spouse to apply to the court for the determination of rights in matrimonial property. The Plaintiff, being a former spouse, was therefore properly before the Court. 54.The Defendant also challenged the form of commencement of the proceedings. However, Article 159(2)(d) of the Constitution obligates courts to administer justice without undue regard to procedural technicalities. In addition, the Court of Appeal in Microsoft Corporation v Mitsumi Computer Garage Ltd & Another [2001] eKLR emphasised that procedural lapses should not override substantive justice where no prejudice is occasioned. 55.I therefore find and hold that the marriage between the parties was lawfully dissolved and that this suit is properly before the Court. This decision underscores the Court's commitment to fairness and transparency, reassuring the parties and the public of an impartial process. Whether the properties listed in the Amended Plaint constitute matrimonial property 56.The Plaintiff seeks declarations in respect of the following properties;a.Plot No. XXX Block 9 (Residential), Narok Town;b.One-acre shamba at Nyansiongo Village;c.Motor vehicle registration number KBD 4XXX;d.Plot No. XXX L.D Block II;e.Plot No. 83 Rotian Location; andf.Plot No. XXX Block II. 57.Section 6(1) of the Matrimonial Property Act defines matrimonial property as including;“the matrimonial home or homes, household goods and effects in the matrimonial home or homes, or any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.” 58.All properties in question were acquired during the subsistence of the marriage between 1993 and 2011, with the Defendant admitting that they were acquired while cohabiting as husband and wife. This acknowledgement affirms the value of contributions made during the marriage, fostering a sense of justice for the parties involved. 59.Although the Defendant maintained that the properties were registered solely in his name, the court will consider contribution and trust principles, including the rebuttable presumption under Section 14 of the Matrimonial Property Act, to determine beneficial interests regardless of registration status. 60.In TMW v FMC [2018] eKLR, the Court held that registration of matrimonial property in the name of one spouse does not extinguish the beneficial interest of the other spouse where contribution is proved. 61.Similarly, in PWK v JKG [2015] eKLR, the Court observed that matrimonial property encompasses property acquired during marriage, irrespective of whose name appears in the title documents, provided contribution is established. 62.From the evidence tendered, including allotment letters, sale agreements, and oral testimony, I am satisfied that the listed properties were acquired during the subsistence of the marriage and therefore fall within the ambit of matrimonial property as contemplated under Section 6 of the Matrimonial Property Act. 63.As regards the Nyansiongo property allegedly purchased using proceeds from ancestral land inherited by the Defendant, I note that inherited property does not automatically cease being matrimonial property where it is converted into property utilised for the benefit of the family during marriage. In SN v FM [2019] eKLR, the Court held that inherited property may acquire the character of matrimonial property depending on the circumstances of acquisition and use. 64.I therefore find and hold that all the properties listed in the Amended Plaint constitute matrimonial property. Whether the Plaintiff proved contribution towards the acquisition of the properties 65.The next issue is whether the Plaintiff established a contribution towards the acquisition of the suit properties. 66.Section 2 of the Matrimonial Property Act defines “contribution” to include both monetary and non-monetary contributions, including;a.Domestic work and management of the matrimonial home;b.Child care;c.Companionship;d.Management of family business or property; ande.Farm work. 67.Section 7 of the Act further provides that ownership of matrimonial property vests in spouses according to their respective contributions towards acquisition. It shall be divided upon divorce according to such contribution. 68.The Plaintiff testified that she worked as a nurse and obtained several loans from Afya Sacco, which she stated were utilised in the acquisition and development of the properties. She produced loan statements and loan analysis documents in support thereof. Although she admitted that she lacked direct documentary proof linking every loan disbursement to a specific property purchase, the chronology of the loans corresponded substantially with the acquisition and development periods of the suit properties. 69.The Defendant argued that the Plaintiff was a student at KMTC and that the loans were intended for school fees. However, no evidence was tendered to demonstrate that all of the loans were applied exclusively to educational expenses. Indeed, the Defendant conceded during cross-examination that the parties never documented their respective contributions because they trusted each other as spouses. 70.The Court must therefore evaluate the evidence in the context of the realities of matrimonial relationships, where spouses rarely reduce their financial and domestic arrangements into formal agreements. 71.In Echaria v Echaria [2007] eKLR, the Court of Appeal recognised that contribution towards matrimonial property may be direct or indirect and that courts should consider the entire conduct of the parties during marriage. 72.Similarly, in J.O.O v M.B.O [2023] KESC 4 (KLR), the Supreme Court reiterated that Article 45(3) of the Constitution does not mandate automatic equal sharing of matrimonial property, but rather requires courts to ascertain each spouse’s proven contribution, whether monetary or non-monetary. 73.I have considered the Plaintiff’s evidence that she contributed through Sacco loans, salary income, support towards farming activities, child care, domestic responsibilities, and maintenance of the family during the marriage. The Defendant himself acknowledged that the Plaintiff contributed towards the payment of school fees and the welfare of the children. 74.I also take judicial notice of the fact that the Plaintiff worked as a nurse throughout much of the marriage and therefore cannot reasonably be said to have not contributed whatsoever to the welfare and advancement of the family. 75.However, while the Plaintiff established contribution, the evidence placed before the Court does not justify a finding of equal contribution in respect of all the properties. The documentary evidence relating to acquisition, including allotment letters and sale agreements, was predominantly in the Defendant’s name. The Defendant also demonstrated that some acquisitions were financed through his farming activities, inherited property, loans, and Sacco shares. 76.In EGM v BMM [2020] eKLR, the Court of Appeal emphasised that equality in marriage does not necessarily translate into equal proprietary entitlement and that distribution must correspond with proved contribution. 77.Likewise, in UMM v IMM [2014] eKLR, Kiage JA observed that Article 45(3) of the Constitution does not decree “a scorched earth, redistribution of proprietary rights,” but rather fairness based on contribution. 78.Taking into account both direct and indirect contributions, I am satisfied that the Plaintiff proved a substantial though not equal contribution towards the acquisition and development of the matrimonial properties. 79.I therefore find that the Plaintiff is entitled to a beneficial interest in the suit properties assessed at forty per cent (40%), while the Defendant shall retain sixty per cent (60%). Whether the Plaintiff is entitled to the reliefs sought 80.In light of the foregoing findings, I hold that the Plaintiff is entitled to declaratory relief in respect of the suit properties. 81.I further find that any property disposed of by the Defendant without consultation or consent of the Plaintiff after separation and during subsistence of the Plaintiff’s beneficial interest must be accounted for to the extent of the Plaintiff’s adjudged share. 82.Accordingly, judgment is hereby entered in favour of the Plaintiff against the Defendant in the following terms;a.A declaration is hereby issued that the following properties constitute matrimonial property;i.Plot No. XXX Block 9 (Residential), Narok Town;ii.One-acre shamba at Nyansiongo Village;iii.Motor vehicle registration number KBD 4XXX;iv.Plot No. XXX L.D Block II;v.Plot No. 83 Rotian Location; andvi.Plot No. XXX Block II.b.A declaration is hereby issued that the Plaintiff holds a forty per cent (40%) beneficial interest in the aforesaid matrimonial properties.c.The parties shall, within ninety (90) days, agree on the mode of valuation and distribution of the properties, failing which the properties shall be valued by a mutually agreed valuer and appropriate distribution or compensation undertaken in accordance with the Plaintiff’s forty per cent (40%) share.d.In respect of any property already sold, transferred, or disposed of by the Defendant, the Plaintiff shall be compensated equivalent to forty per cent (40%) of the net value thereof as at the date of disposal.e.A permanent injunction is hereby issued restraining the Defendant from alienating, transferring, charging, wasting, or otherwise interfering with the Plaintiff’s beneficial interest in any remaining matrimonial property pending full settlement. Costs 83.On costs, the general principle is that costs follow the event pursuant to Section 27 of the Civil Procedure Act. However, courts retain discretion to depart from the principle depending on the circumstances of the case. 84.In Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR, the Supreme Court held that the award of costs is discretionary and should be guided by the interests of justice. 85.Considering that this dispute arises from a former matrimonial relationship and involves parties who jointly raised a family for many years, I am persuaded that each party should bear his and her own costs. 86.Accordingly, each party shall bear their own costs. 87.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAROK, THIS 28TH DAY OF MAY, 2026.……………………………CHARLES KARIUKIJUDGE