[2025] KEHC 1080 (KLR)

CC v MKL (Matrimonial Cause E001 of 2023) [2025] KEHC 1080 (KLR) (27 February 2025) (Ruling)

Neutral citation: [2025] KEHC 1080 (KLR)

Republic of Kenya

In the High Court at Kericho

Matrimonial Cause E001 of 2023

JK Sergon, J

February 27, 2025

Between

CC

Applicant

and

MKL

Respondent

Ruling

1. The applicant filed an originating summons dated 1st December, 2022 seeking the following orders;(i)A declaration that the matrimonial home on the land known as Kericho/Tebesonik/4XX was acquired and developed through the applicant’s sole effort and therefore the applicant is entitled to the property in its entirety.(ii)A declaration that the respondent shares in the said property situated on the land known as Kericho/ Tebesonik/4XX within Litein Sub County in Kericho County is held upon trust for the applicant.(iii)An order the respondent does execute all documents necessary to transfer the respondent’s interest in the property known as matrimonial home on the land known as Kericho/Tebesonik/4XX within Litein Sub County in Kericho County to the applicant and in default the same to be executed by the Deputy Registrar of the High Court.(iv)Cost of this summons be provided for.

2. The summons is supported by grounds on the face of it and the supporting affidavit sworn by CC the applicant.

3. The applicant avers that she and the respondent were in a customary marriage, they solemnised their marriage under the Marriage Act at the Kericho District Commissioner’s Office and thereafter set up their matrimonial home at [Particulars Withheld] in Kericho County.

4. The applicant avers that before she got married, she had solely acquired a piece of land known as Kericho/Cheborge/1XX.

5. The applicant avers that upon getting married to the respondent, they decided to sell her plot and build their matrimonial home on the subject parcel using proceeds from the said sale amounting to Kshs. 370,000/=. The applicant avers that at the time she was running a business at Litein Town.

6. The applicant avers that she and the respondent stayed together for seven years before they started having marital difficulties.

7. The applicant avers that they separated and in the subsistence of their marriage, the respondent married another woman and brought her into their matrimonial home.

8. The applicant avers that the respondent proceeded to solemnize the said union at the Bomet District Commissioner’s Office.

9. The applicant avers that the respondent proceeded to file a suit at the Kericho Chief Magistrate’s Court for annulment and the decree nisi was issued and that the same was made absolute thereby resulting in the annulment of their union.

10. The applicant maintained that she single handedly paid for the purchase of the subject parcel and the development of their matrimonial home.

11. The respondent filed a replying affidavit in response to the originating summons.

12. The respondent avers that he solemnized the marriage with the applicant on 13th April, 2012 and that the same was dissolved and a decree nisi issued on 28th July, 2022.

13. The respondent avers that prior to the marriage with the applicant he had established a matrimonial home and was cohabiting with another woman who had deserted her matrimonial home.

14. The respondent avers that he and the applicant occupied his home and there was no input made by the applicant to improve the said homestead.

15. The respondent avers that he was not aware that the applicant had purchased land prior to their marriage or inform him of land she purportedly sold during the subsistence of their marriage.

16. The respondent avers that the applicant was solely running a business in Litein during the subsistence of their marriage.

17. The respondent avers that during the subsistence of their marriage, he provided all the necessities required including food, clothing and other items utilised in the family.

18. The respondent avers that the applicant deserted her matrimonial home which prompted him to file divorce proceedings.

19. The respondent avers that the subject land parcel known as Kericho/Tebesonik/4XX upon which he constructed the matrimonial home belongs to his late father and that his entire family resides thereon, he attached a copy of the death certificate and the title deed.

20. The respondent maintained that the applicant did not purchase any land in the subsistence of their marriage and that they resided on family land.

21. The respondent avers that the application lacks merit, he is not a trustee of the estate of Philip Kiplangat Leitich (deceased) and there are no succession proceedings pending in respect to the estate of the deceased and in any event the applicant is not a beneficiary or dependent of the deceased.

22. The parties were directed to file written submissions.

23. The Applicant argued that the subject parcel Kericho/Tebesonik/4XX is matrimonial property and cited section 6 of the Matrimonial Property Act, 2013 which defines matrimonial property to include the matrimonial home(s), household goods and effects and any property jointly owned and acquired in the subsistence of the marriage. The applicant cited the case of PWN v ZWN [2017] eKLR where the court held that; “Where property constitutes the matrimonial home, it becomes matrimonial property even if registered in the name of a third party, provided the spouses resided there during the subsistence of their marriage.”

24. The applicant argued that she made both financial and non financial contributions towards acquisition and development of the property as stipulated in section 2 of the Matrimonial Property Act, 2013. The applicant contended that she actively contributed to the welfare and upkeep of the matrimonial home through domestic work and she operated a business in Litein which she used proceeds from her business to support her family, she attached receipts of various household items which she purchased that are still at the matrimonial home on the suit property.

25. The applicant argued that the fact that the subject parcel belongs to the family of the respondent does not negate the fact that she made substantial contributions to the development of the matrimonial home by selling Kericho/Cheborge/1XX she attached a copy of the sale agreement. The applicant contended that she was not seeking to disinherit the family members of the respondent herein from the subject parcel, rather, she was claiming her rightful share of the matrimonial home.

26. The applicant argued that whereas the respondent alleged that she deserted her matrimonial home, the desertion was as a result of the break down of the marital relationship between the parties, she attached a letter from the chief Tebesonik Location, showing that she was chased away from her matrimonial home by the respondent.

27. The Respondent argued that the parcel known as Kericho/Tebesonik/4XX is not matrimonial property, it forms part of the estate of his family and is registered in the name of the deceased’s father Philip Kiplangat Leitich, therefore, the applicant’s claim to the suit property is untenable in the circumstances and that there is no beneficial interest to the said estate as it did not form part of the properties acquired during the subsistence of their marriage.

28. I have considered the pleadings and the submissions made by the parties, I find that the sole issue for determination is whether the home built on the subject parcel in the instant application to wit land parcel Kericho/Tebesonik/4XX is matrimonial property. One one hand, the applicant contended that the mere fact that the subject parcel belongs to the family of the respondent does not negate the fact that she made substantial contributions to the development of the matrimonial home using proceeds of the sale of Kericho/Cheborge/1XX. On the other hand, the respondent contended that subject land parcel known as Kericho/Tebesonik/4XX upon which he constructed the matrimonial home belongs to his late father and that his entire family resides thereon, he attached a copy of the death certificate and the title deed. This court having considered the arguments and counter arguments by the parties finds that the home constructed on Kericho/Tebesonik/4XX the subject parcel is not matrimonial property, the respondent having aptly demonstrated that the home was built prior to the union between the parties and that the home was built on land parcel known as Kericho/Tebesonik/4XX which forms part of the estate of his family and that it is registered in the name of the deceased’s father Philip Kiplangat Leitich, therefore, the applicant’s claim to the suit property is untenable in the circumstances.

29. It is the finding of this court that the applicant has not demonstrated direct or indirect contribution in constructing the home, however, the applicant has attached receipts of various household items which she purchased that are still at the matrimonial home on the suit property which items she did not claim in her pleadings.

30. It is the finding of this court that the applicant does not have any beneficial interest and/or a beneficiary in the suit property and land parcel known as Kericho/Tebesonik/4XX and therefore this court cannot grant the prayers sought by the applicant. Accordingly, this Court finds the originating summons dated 1st December, 2022 to be without merit. It is dismissed with each party bearing his or her own costs.

DELIVERED, SIGNED AND DATED AT KERICHO THIS 27TH DAY OF FEBRUARY 2025. ………………………J.K. SERGONJUDGEIn the Presence of:-C/Assistant – RutohMr. Kirui holding brief for Motanya for ApplicantNo Appearance for Koske for the Respondent