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CLO v AJM alias AO (Civil Appeal E978 of 2024) [2026] KECA 1599 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1599 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E978 of 2024 K M'Inoti, EC Mwita & B Ongaya, JJA July 31, 2026 Between CLO Appellant and AJM alias AO Respondent (Being an appeal from the judgment and decree of the High Court of Kenya at Nairobi (Chemitei J.) dated 17th September 2024 in HCCC No. E072 of 2022 (OS)) Judgment 1.This is an appeal from the judgment and decree of the High Court of Kenya at Nairobi (Chemitei, J.) (the High Court) dated and delivered on 17th September 2024. CLO, (the appellant), and AJM alias AO, (the respondent), were husband and wife married in 1987 under Luo customary law and later solemnized their marriage in church on 4th October 1999 and had two children from that union who are now adults. Their marriage faced headwinds and came to an end when a divorce was granted, Decree Nisi issued on 30th July 2021 and made absolute on 30th August 2021. 2.During the subsistence of the marriage, four properties were acquired, namely; Avenue Park xx House xxx (Avenue Park house) registered in the joint names of the parties; Funguo Estate House No. xx (Funguo house) registered in the respondent’s name; Kabondo/Kowedi/xxx (Kabondo property) registered in the appellant’s name and Tree Lane Estate House No. C2 (Tree Lane house) acquired by the respondent after she sold the Funguo house. The Family resided in the Avenue Park house while the respondent let out the Funguo house at a monthly rent of Kshs. 32,000 which she used to service the loan at Kshs. 9,000 per month. The respondent also let out Tree Lane house at a monthly rent of Kshs. 90,000 which she used to service the loan for that house. 3.After dissolution of the marriage, the Appellant took out Originating Summons dated 13th October 2022 (the suit) before the High Court seeking a declaration that the properties were matrimonial properties and an order for their distribution. He proposed that he takes the Avenue Park house and the Kabando property, while the respondent takes the Tree Lane house and the Funguo house. In the alternative, that the Avenue Park house; the Kabondo property and the Tree Lane Estate house be sold and the proceeds be shared in the ration of 70:30 in his favour. 4.The respondent filed a response asserting that only the Avenue Park house and the Kabondo property were matrimonial properties; that the Funguo house and the Tree Lane house were her private properties and were, therefore, not subject to subdivision. 5.The High Court delivered its judgment on 24th September 2024 and distributed the properties so that the appellant was given 20% of the Avenue Park house;20% of the Tree Lane house and 50% of the Kabando property, while holding that the appellant’s contribution towards the acquisition of the Funguo house was insignificant and made no order regarding its distribution. 6.The appellant was dissatisfied and filed a memorandum of appeal dated 5th November 2024 raising 14 grounds which can be summarized as follows that the High Court erred in: failing to fairly assess contribution of each party towards acquisition and development of the matrimonial properties; disregarding evidence that he solely acquired and paid for the Avenue Park house; failing to find that the Funguo house was a matrimonial property acquired during marriage with his contribution; failing to consider that the respondent let out the Funguo house and the Tree Lane house; used the money to service the loans and retained extra income while he shouldered family expenses; finding that the respondent was entitled to 50% of the Kabando property and failing to consider his evidence but relied solely on the respondent’s proposal regarding distribution of the properties. The appellant urged this Court to allow the appeal; set aside the judgment of the High Court and substitute it with order allowing the suit as prayed. 7.When the appeal came up for hearing on the Court’s virtual platform, learned counsel Mr. Odhiambo appeared for the appellant while learned counsel Miss. Maweu held brief for Mr. Mugu, counsel for the respondent. Both Counsel relied on their written submissions dated 9th March 2026 and 19th March 2026 respectively, with limited oral highlighting. 8.Mr. Odhiambo condensed the appellant’s grounds of appeal into three, namely; that the High Court erred in law and fact in: failing to determine whether the Funguo house was a matrimonial property; failing to fairly assess contribution of each party and failing to consider the evidence and address all the issues raised. 9.Counsel submitted that although the Funguo house was registered in the respondent’s name, it was acquired during marriage with the appellant’s contributed of Kshs. 157, 000 towards its acquisition thus, it was matrimonial property. Counsel argued that the family resided in the Avenue Park house which enabled the respondent to acquire the Funguo house which she let out at a monthly rent of Kshs. 32,000 while paying the loan at Kshs.21,000 per month; the respondent later sold the Funguo House and used the proceeds to acquire the Tree Lane house, which she again let out at a monthly rent of Kshs.90,000 while paying loan of Kshs.71,000. On his part, the appellant paid fees for the children; medical expenses and other family needs. Counsel complained that the High Court erroneously stated that the appellant had testified that he had no interest in the Funguo House even though the house was sold when the appellant was supporting the family and, therefore, the appellant should have been given a share thereof. 10.Regarding acquisition of the Avenue Park house, counsel submitted that the appellant purchased the house on his own; paid the deposit and serviced the loan through his salary. No money from the family business was used towards the acquisition of that house and even though the house was registered in their joint names, the respondent did not contribute towards its acquisition. 11.Regarding the mode of distribution of the properties, Mr. Odhiambo faulted the High Court for stating that the appellant’s contribution towards acquisition of the Funguo house was “not very much” while not taking a similar view regarding the Avenue Park house, which the appellant purchased and paid for through his salary. Counsel argued that in distributing matrimonial property, the court should consider unique circumstances of each case and uphold fairness without prejudicing any party. Counsel relied on the Supreme Court decision in JOO v MBO; Federation of Women Lawyers ( FIDA Kenya) & another (Amicus Curiae) [2023] KESC 4(KLR), for the position that the court should also take into account non-monetary or indirect contribution; this Court’s decision in PNN v ZWN [2017] eKLR, that division of matrimonial property must proceed on the basis of fairness and AW v MVCMAWM [2018] eKLR, for the proposition that each case should be decided on its own merit, taking into account the peculiar circumstances of each case and the principle of fairness. 12.Mr. Odhiambo submitted that the appellant seeks fairness in the distribution of the matrimonial properties and urged this Court to set aside the mode of distribution adopted by the High Court since he singlehandedly purchased the Avenue Park house and the Kabondo property and he should exclusively have those properties while the respondent should take Funguo house and Tree Lane house. 13.Miss Maweu relied entirely on the respondent’s written submissions. In the written submissions, Mr. Mugu submitted that the appellant left the matrimonial home in 2009 while the marriage was dissolved and the decree absolute issued on 30th August 2021. Counsel submitted in response to the appellant’s argument that the High Court did not analyze evidence or pronounce itself on the distribution of the Funguo house, that the High Court was satisfied with the respondent’s evidence that she solely acquired the Funguo house through a loan from her employer and the house was registered in her name. Counsel maintained that the appellant did not contribute to towards the acquisition of the Funguo house and that the High Court properly held that the respondent’s evidence showed that she purchased the house, which she later sold to pay school fees for the children and used the balance as deposit for the Tree Lane house. She contended that the property was acquired during separation, without the appellant’s contribution and at a time when the appellant had stopped supporting the family. 14.Regarding the Avenue Park house, counsel maintained that it is a matrimonial property registered in the joint names of the parties and that the respondent directly contributed a deposit of Kshs. 640,000 towards its acquisition. It was the view of counsel that the respondent further indirectly contributed when she gave her pay slip and the loan was given on the strength of both parties’ pay slips; the respondent also catered for other household expenses thereby enhancing the value of the house while the appellant serviced the loan. 15.On the Kabondo property, Mr. Mugu submitted that the respondent directly contributed Kshs. 9,000 towards its acquisition and financed other substantial developments on the property. According to counsel, the respondent organized construction works on the property, planted bananas, trees and hired workers to manage and maintain the property as the rural home. 16.Citing sections 2 and 7 of the Matrimonial Property Act, counsel argued that ownership and division of matrimonial property should be determined on the basis of both financial and non-financial contribution of each spouse. In the case of the respondent, counsel submitted that she demonstrated before the High Court the significant financial contribution and personal sacrifice she made in ensuring the future welfare of the children and, therefore, this role fell within direct financial and non-financial contributions. Counsel maintained that the High Court considered evidence before it and properly distributed the matrimonial property. 17.This being a first appeal, the principles upon which this Court acts are well settled. This Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect. In Gitobu Imanyara & 2 others v Attorney General [2016] KECA 557(KLR), this Court stated as follows:“This being a first appeal, it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.” 18.We have considered the arguments made on behalf of the parties, the decisions relied on and the applicable law. From those submissions, we have identified 2 issues for determination, namely; whether the High Court properly considered the evidence before it and whether it applied proper principles in identifying and distributing matrimonial properties. 19.On the first issue, the appellant argued that the High Court did not properly consider the evidence when distributing the properties. The appellant and the respondent were former husband and wife, respectively, and acquired four properties at different times during their marriage. Two of properties were registered in the appellant’s sole name, being the Avenue Park house and the Kabondo property; Funguo house was registered in the respondent’s sole name while the Tree Lane house was registered in the name of the respondent and one of their children. 20.The parties presented three main issues for determination before the High Court, namely; whether the properties were matrimonial; what the level of contribution by each party was and how were the properties to be distributed. The High Court considered the evidence and made a decision that the properties were essentially matrimonial and shared them in the ration of 20:80 in favour of appellant in respect of the Avenue Park house and the Tree Lane house, while each party got 50% in respect of the Kabondo property. The High Court did not make any determination with regard to the Funguo house. It was that mode of distribution that led to this appeal. 21.We have considered and reevaluated the evidence on record to make our independent conclusions on that evidence. The evidence on record shows that the respondent acquired the Funguo house through a loan from her employer; had it registered in her name and she repaid the loan, although it was acquired during marriage. The appellant’s claim that he contributed towards acquisition of this house was disputed by the respondent. The house was later sold and the proceeds used to pay fees and the balance was used as deposit for the purchase of the Tree Lame house, which was registered in the name of the respondent and one of their children; was charged to I&M Bank and the respondent was repaying the loan. Regarding the Kabondo property, the High Court concluded that both parties contributed towards its acquisition, while in the case of the Avenue Park house, the High Court held that it was jointly acquired through proceeds from a family company, Bramacha Enterprises Limited. 22.Upon re-evaluating and re-analyzing that evidence ourselves, we are satisfied that the High Court considered the evidence placed before it and concluded that the properties were acquired during marriage and were matrimonial properties and distributed it as it did. 23.The core issue in this appeal is whether the High Court applied the correct principles on distribution of matrimonial properties in coming up with the ratio given to the appellant and the respondent, respectively. 24.The appellant faulted the High Court over the manner it distributed the properties. The appellant had urged the High Court to give him the Avenue Park house and the Kabondo property while the respondent took the Funguo and Tree Lane houses. On the other hand, the respondent proposed that the appellant gets the Kabondo property, while she gets 60% of the Avenue Park house. The respondent’s position regarding the Funguo and Tree Lane houses was that they were not matrimonial properties and therefore they were not available for distribution. In the end, the appellant got 20% of the Avenue Park house and the Tree Lane house against the respondent’s 80% of those houses while the Kabondo property was shared equally between the parties. The appellant termed the mode of distribution unfair and also took issue with the fact that the High Court did not distribute the Funguo house. 25.We have reevaluated the evidence on record as well as the applicable principles on distribution of matrimonial properties upon marriage coming to an end. In Joseph Obongi Ogetonto v Martha Bosibori Ogetonto (supra), the Supreme Court affirmed the decision in Echaria v Echaria [2007] KECA 504(KLR), and stated as follows:“(78)To our minds, the finding in Echaria, was essentially that a spouse does not acquire any beneficial interest in matrimonial property by fact of being married only and that specific contribution has to be ascertained to entitle such a spouse to a specific share of the property.” 26.The Supreme Court went on to state that for one to be entitled to a share of the property, the court should consider the circumstances of each case independently in assessing contribution, further noting that what amounts to contribution may either be direct and monetary and indirect and non-monetary. 27.The Supreme Court, while appreciating that Article 45(3) of the Constitution acts as a means of providing for equality as at the time of dissolution of marriage, such equality can only mean that each party is entitled to their fair share of matrimonial property and no more, emphasizing that Article 45(3) was not designed for the purpose of enabling the court to pass property rights from one spouse to another by fact of marriage only. 28.After referring to a number of persuasive decisions, the Supreme Court again observe:“[103]In agreeing with the above decisions, we must note that, in a marriage, the general assumption is that both spouses share everything, and on the face of it, both parties contribute towards the home or family, in one way or another, to whichever extent, however big or small. Again, and further to this, both spouses may also work and earn income, which inevitably, at most instances, always ends up being spent on the family unit. It may be the whole income, or a substantial part of it, but ultimately, a percentage of it goes into the family. This is the essence of Section 14 of the Matrimonial Property Act,2013.” 29.Upon considering the evidence on record on the acquisition of the properties, there was no doubt that the respondent acquired the Funguo house independent of the appellant, but during the marriage. Although the appellant argued that he contributed towards its acquisition and had given the respondent Kshs. 157,000 out of which the respondent used 100,000 to pay for the deposit, that assertion was disputed by the respondent who maintained she was given Kshs. 100,000 by her father. The appellant did not adduce evidence to prove that he gave the appellant kshs. 100,000 as deposit for the purchase of Funguo house. 30.That notwithstanding, there is no dispute that the family was at the time living in the Avenue Park house, (we shall come to this later), which gave the respondent an opportunity to acquire the Funguo house and repay the loan. By virtue of the fact of providing shelter for the family, the appellant indirectly contributed towards the acquisition of Funguo house. 31.The appellant faulted the High Court for not including the Funguo house in the distribution of the properties. It is true from the judgment that the High Court did not make any decision regarding the distribution of the Funguo house. However, there is no dispute that the Funguo house was sold and, according to the respondent, part of the proceeds of that sale was used to pay school fees for their son which was the responsibility of both parents, a fact the appellant did not dispute. The balance was used towards the purchase of the Tree Lane house. In that respect, we take the view, that the appellant’s entitlement, if any, went to paying fees for their son, from whom both parties were responsible. In any case, since part of the proceeds was used to acquire Tree Lane house, and the High Court found that the appellant’s contribution towards the acquisition of both Funguo house was not significant, the appellant still got 20% share of the Tree Lane house. The Funguo house having been sold, it was no longer available for purposes of distribution. 32.The appellant did not show that he contributed towards the purchase of the Tree Lane house and why we should interfere with the 20% distribution he was given by the High Court, and whatever he got in the Tree Lane house must be traced from the Funguo house. We are unable to fault the High Court regarding the distribution of the Tree Lane house and the failure to mention the Funguo house in that distribution. 33.Regarding the Kabondo property, the appellant argued that he single handedly purchased the property and that he should therefore have taken the whole of it. The respondent maintained that she contributed 9,000 out of the purchase price of Kshs. 20,000; that she worked on the land, planted trees, paid workers and even undertook construction works to improve the property as their rural home. Although the appellant disputed the respondent’s assertions in this respect, he did not adduce evidence to controvert the respondent’s claim that she raised Kshs. 9,000; paid workers and planted trees. Both the appellant and the respondent were working and therefore able to pay towards the purchase of the property. 34.Having reevaluated the evidence on record, we once again find no reason to interfere with the finding by the High Court that both the appellant and the respondent significantly contributed towards the acquisition and development of this property thus, the 50:50 distribution ratio. 35.This brings us to the last property, the Avenue Park house, the first property to be acquired. The appellant’s position was that he purchased this property through a loan he got from Housing Finance Company of Kenya (HFCK); had it registered in the joint names for personal and convenient reasons and repaid the loan from his salary. The respondent maintained that she paid the deposit from family sources; she gave her pay slip and that the loan was given on the basis of both parties’ pay slips. The respondent further stated that she used her resources to improve the house and bought furniture, among other improvements. In the end, the High Court divided the property in the ratio of 20% in favour of the appellant and 80% in favour of the respondent, which the appellant termed unfair. 36.We have considered and reanalyzed the evidence on record regarding the acquisition of this property. There is no dispute that the appellant purchased the house on loan which he repaid from his salary. The disagreement is on who paid the deposit of Kshs. 640,000. Whereas the appellant stated that he paid the deposit, the respondent maintained that the deposit was paid from the family business. 37.Testifying before the High Court, the respondent stated that the house was purchased in 1996; the appellant applied for a loan from HFCK and the family moved into the house immediately. Regarding the deposit, the respondent attached a letter dated 22nd October 2002 authorizing transfer of Kshs. 600,000 from the family business account to the appellant’s current account. A copy of the charge attached to the affidavit sworn in support of the Originating Summons was made on 27th August 1997. The appellant stated that he raised Kshs 290,000 from his personal sources and got Kshs 400,000 from Stima Sacco to make Kshs. 690,000 which he paid for the deposit. 38.If the property was purchased in 1996 and charged in 1997, how would it be possible that the deposit was paid in 2002, more than five years after the house had been purchased? The respondent did not explain why the deposit would be paid long after the property had been purchased and possession taken. Even though the property was registered in the joint names, we are not satisfied that the respondent contributed towards its acquisition either by paying the deposit or any other money. 39.The respondent’s subsequent contribution cannot, however, be denied. Section 7 of the Matrimonial Property Act, provides as follows:“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.”Section 7 emphasizes on the concept of contribution as the basis for distributing matrimonial property. Section 2 of the Act defines "contribution" to mean monetary and non- monetary contribution and includes—domestic work and management of the matrimonial home; child care; companionship; management of family business or property; and farm work. Any of the above acts would, in law, amount to contribution towards acquisition of matrimonial property and should guide a court when considering distribution of matrimonial property. 40.The Supreme Court reinforced the principle of contribution in the apportionment and division of matrimonial property in Joseph Obongi Ogetonto v Martha Bosibori Ogetonto (supra) and stated as follows:“(83)The guiding principle, again, should be that apportionment and division of matrimonial property may only be done where parties fulfill their obligation of proving what they are entitled to by way of contribution.” 41.Applying the above principles in this appeal, and the evidence on record having confirmed that the appellant purchased Avenue Park house and repaid the loan, the question is whether it was proper for the High Court to distribute the property in the ratio of 20% to 80% in favour of the appellant and respondent, respectively. 42.Although registered in the joint names, the undenied fact is that the appellant purchased the house through a loan which he serviced through his salary. The family resided in the house and they still do. The respondent maintained that she purchased some items for the house, including furniture, which under section 7 as read with section 2 of the Act, amounts to contribution, a fact the appellant did not seriously dispute. Taking into account the evidence on record regarding acquisition of this property and the respondent’s level of contribution, we are inclined to agree with the appellant that the High Court fell into error with respect to the level of apportionment in distributing this property. The respondent’s contribution towards improving the property such as purchasing furniture and any other undertakings, would not, on their own, justify the 80% that the High Court gave her.The law as settled by the Supreme Court is as follows:“[78]…[A] spouse does not acquire any beneficial interest in matrimonial property by fact of being married only and that specific contribution has to be ascertained to entitle such a spouse to a specific share of the property.” 43.This expression of the law is in agreement with the position taken by this Court in PNN v ZWN (supra) that married couples have equal rights to matrimonial property and both direct financial and indirect non-monetary contributions like domestic work are recognized when dividing assets upon divorce and AW v MVCMAWM (supra) that the division of matrimonial property must be based on the actual verifiable contribution each spouse made towards the acquisition and development of the property. 44.The above decisions emphasize that in the event that marriage breaks down, the function of a court is to make a fair and equitable division of the matrimonial property based on the evidence on the level of ascertainable contribution by each spouse. 45.In so far as the Avenue Park house is concerned and based on the basis of the evidence on record, the High Court did not justify its decision to give the appellant 20% of a property he purchased and serviced the loan while the respondent got 80% thereof even though her ascertainable direct and indirect contribution were not shown to be more than the appellant’s contribution towards the acquisition of the property. 46.Having reevaluated the evidence and analyzed it ourselves, we come to the conclusion that the High Court erred in distributing Avenue Park house as it did which was not supported by evidence on record. The High Court failed to apply the principle of fairness based on the ascertainable contribution by each spouse. 47.Consequently, the appeal partially succeeds with respect to the Avenue Park Phase II House 43B only and we make the following orders:1.The distribution in relation to Avenue Park Phase II House No. 43B is hereby set aside and in place therefor, the appellant shall get 80% while the respondent shall get 20%.2.Should parties fail to agree on how to distribute the property and get their respective shares, the property shall be valued and thereafter sold for each party to take their share in the ratio determined above. 48.This being a family dispute the appropriate order to make on costs is that each party shall bear their own costs of this appeal. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026K. M’INOTI......................................JUDGE OF APPEALE. C. MWITA........................................JUDGE OF APPEALB. ONGAYA........................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.