[2022] KEHC 16321 (KLR)

CNNW v JWM (Civil Case E004 of 2021) [2022] KEHC 16321 (KLR) (8 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16321 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Case E004 of 2021

MW Muigai, J

December 8, 2022

Between

CNNW

Plaintiff

and

JWM

Defendant

Judgment

1. The Plaintiff, by way of Originating Summons dated 21st September, 2021 filed in this Court on 22nd December, 2021 and sought the following orders:-1. That a declaration be issued that the matrimonial properties allocated to and or held by the Respondent in his name on his behalf and in trust for the Applicant; that a declaration be made that the Applicant is the legal and beneficial owner of and or with entitlement of 50% interest or equal share; that an Order be issued directing the Defendant to render an account to the Plaintiff for the monthly rental income collected, deposits the proceeds thereof less maintenance costs in a joint interest earning account opened in the names of parties herein or their advocates for the benefit the parties herein; that an order be issued restraining the Defendant whether by himself or his agents from selling, leasing, charging, mortgaging, encumbering, alienating, disposing off and/or transferring to a 3rd parties unless otherwise with the consent of the plaintiff or order of this Court the following properties :-i.Property LR. No.12715/30XX situated in Syokimau – Machakos.ii.Plot No.1XX and developments thereon under the Mavoko Land Development Company limited Scheme in Ngwata area in Mlolongo, Mavoko Sub-County in Machakos County.iii.Plot No.1XX Phase I under the Mavoko Land Development Company Limited Scheme in Ngwata area in Mlolongo Mavoko Sub-County in Machakos County.iv.Plot Nos.8XX and 8XX and developments thereon under the Mavoko Land Development Company Limited Scheme in Ngwata Area in Mlolongo, Mavoko Sub-County in Machakos County.v.Plot Nos.6XX and 6XX and developments thereon under the Mavoko Land Development Company Limited Scheme in Ngwata Area in Mlolongo, Mavoko Sub-County in Machakos County.vi.Plot Nos.9XX Phase 1 under the Mavoko Land Development Company Limited Scheme in Ngwata Area in Mlolongo, Mavoko Sub-County in Machakos County. 2. The said summons is supported by the Affidavit of CNNW and based on the grounds that:i.That the parties herein are husband and wife having been married in 1986 under Kamba Customary law and later officiated their marriage on 12/10/2001 under the Marriage Act Cap 150 (Repealed) and had been living together as husband and wife until February, 2021 when the Respondent deserted home and the Petitioner to live separately without any lawful or reasonable excuse.ii.That the parties purchased and acquired the above stated properties.iii.That the parties also acquired a motor vehicle registration number KCW 026 Y Single Isuzu D-Max Pick Up by way of chattels Mortgage from Co-operative Bank of Kenya through the Plaintiff which vehicle is under possession and use by the Respondent.iv.That the Respondent has since February 2021 refused to account, contribute and or share the proceeds of the rental income collected from the properties,v.That the Respondent has recently threatened to dispose of or transfer to 3rd parties the said properties and the Plaintiff is apprehensive that unless restrained by this Court the respondent will at any time completely waste aware or dissipate the rental income collected from the stated matrimonial properties.

NOTICE OF MOTION DATED 21/12/2021 3. The Plaintiff filed Notice of Motion and sought the following orders:-a.That pending hearing and determination of this suit and instant application a temporary order be issued restraining the Defendant whether by himself or his agents from selling, leasing, charging, mortgaging, encumbering, alienating, disposing off and/or transferring to a 3rd parties unless otherwise with the consent of the Plaintiff or Order of this Court the following properties:i.Property LR. No.12715/30XX situated in Syokimau – Machakos.ii.Plot No.1XX and developments thereon under the Mavoko Land Development Company limited Scheme in Ngwata area in Mlolongo, Mavoko Sub-County in Machakos County.iii.Plot No.1XX Phase I under the Mavoko Land Development Company Limited Scheme in Ngwata area in Mlolongo Mavoko Sub-County in Machakos County.iv.Plot Nos.8XX and 8XX and developments thereon under the Mavoko Land Development Company Limited Scheme in Ngwata Area in Mlolongo, Mavoko Sub-County in Machakos County.v.Plot Nos.6XX and 6XX and developments thereon under the Mavoko Land Development Company Limited Scheme in Ngwata Area in Mlolongo, Mavoko Sub-County in Machakos County.vi.Plot Nos.9XX Phase 1 under the Mavoko Land Development Company Limited Scheme in Ngwata Area in Mlolongo, Mavoko Sub-County in Machakos County.b.That a Standing Order do issue that a sum of Kshs.55,000/= being monthly loan installment payable to Co-operative Bank of Kenya on 8th of every month starting January, 2022 and Kshs 150,000/= being annual insurance premiums payable to Madison Insurance on 6th November of every year be deducted from the joint account set out in prayer 3 above and paid towards the loan by Co-operative Bank of Kenya to parties herein for acquisition of a matrimonial motor vehicle registration number KCW XXXY Isuzu D-Mas Pick Up currently registered in the name of the Plaintiff but under use and possession of the Respondent.c.That the parties also acquired a motor vehicle registration number KCW XXXY Single Isuzu D-Max Pick Up by way of chattels Mortgage from Co-operative Bank of Kenya through the Plaintiff which vehicle is under possession and use by the Respondent but who has failed and neglected to promptly pay the requisite annual insurance premiums thereto of Kshs.150,000/- thereby exposing the plaintiff to substantial loss in payments of Insurance premiums and possible liabilities by 3rd parties arising from damages suffered as a result of accidents by the said uncovered motor vehicle herein due to defaults or delayed payment of premiums by the Plaintiff.d.Despite requests, the Respondent has since February, 2021 refused to account, contribute and or share the proceeds of the rental income collected from the properties stated above and is currently wasting away, dissipating and mismanaging the said funds which are matrimonial property with 3rd parties to the exclusion and without the consent of the Plaintiff.e.The Respondent has recently threatened to dispose of or transfer to 3rd parties the said properties and the Plaintiff is apprehensive that unless restrained by this Court, the Respondent will at any time completely waste away of dissipate the rental income collected from the above stated matrimonial properties, dispose off and transfer the said matrimonial properties to 3rd parties and the plaintiff will suffer irreparable loss and the suit herein rendered nugatory.

RESPONDENT’S REPLYING AFFIDAVIT dated 11/03/2022 4. On 22/03/2022 the Respondent filed his Replying Affidavit sworn byJWM and deposed as follows:-a.That indeed the Applicant/Plaintiff were married to the Defendant officially sometimes in the year 2001 after a come we stay relationship for some time.b.That indeed all the time of their marriage from the year 2001 to 2003 when they stayed together, and from 2003 to 2010 when they separated and stayed apart, he had never held any joint account with the Applicant for their salaries of investment or jointly purchased any property with the Applicant.c.That the Defendant solely purchased his two plots at Syokimau number 12715/30XX which he has developed by himself by building their matrimonial home without any assistance from the Applicant.d.That the Applicant has been earning a salary and purchasing her own properties without his intervention and she had several properties in her name.e.That all his properties were purchased and constructed when they had separated with the Applicant who only returned to his matrimonial home in the year 2011 and reconciliation from both parents.f.That he was shocked with the application since from January 2021, the Applicant accompanied with goons invaded him in their matrimonial home and he was chased away and since January 2021, he had been staying alone at Mlolongo market where if he attempted to visit his matrimonial home he may be killed and his life is in danger after reporting this at Mlolongo police station.g.That he has full proof that since the year 2003 they separated and the Plaintiff/Applicant has been living in her own and in the year 2005, the Plaintiff instituted a case in the Children’s Court Case Number 440 of 2005 demanding maintenance which suit was found to be fake as he used to maintain the children and pay their school fees.

PLAINTIFF’S SUPPLEMENTARY AFFIDAVIT 5. On 26th May, 2022 the Plaintiff filed a Supplementary Affidavit sworn on 19th May, 2022 and deposed as follows:-a.That the Plaintiff herein does not seek to dispossess the Respondent of the properties in issue but instead seek their proper maintenance and preservation for the benefit of their family.b.That the Plaintiff allegation that she deserted their matrimonial home between the years 2003 to 2010 and the same is calculated to show that the Plaintiff did not make any contribution towards the acquisition of the matrimonial properties in issue.c.That on or about 2005, the Respondent chased away the Plaintiff from their matrimonial home together with their 2nd and 3rd born children who witnessed the cruelty.d.That in addition and at all times to their marriage the Plaintiff took loans contributed in construction, expanded and improved their property portfolio.e.That the allegations by the Respondent that she never contributed to acquisition of the suit properties merely because they did not have a joint for our respective salaries or jointly purchased property is not only false but also non-disclosure of material facts.

PLAINTIFF’S SUBMISSIONS 6. On behalf of the Plaintiff, it has been submitted that it therefore follows that since the subject properties were acquired within the subsistence of the marriage between the parties herein and the Respondent having failed to prove that the parties herein were separated during the said period, not that it is material, then this Court should find that the same fall within the category of Matrimonial Property, as was held in TMW v FMC [2018] eKLR at page 3 where the Court was tackling a similar issue , the Court observed as follows:-“Section 6 of the Matrimonial Property Act, 2013 defines a matrimonial property to include the matrimonial home or homes, any household goods in the home or homes or any other property jointly owned and acquired during the subsistence of the marriage. Basically 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.”

7. While the Court in MNH v FHM [2018] eKLR observed at pg.5 thus:-“.....that in determining the distribution of matrimonial property at the dissolution of a marriage, the Trial Court ought to dispassionately scrutinize the direct and indirect contribution of each party to the marriage in acquisition and/or development of the suit properties. Furthermore, where property is registered in singularly in the name of one spouse, there shall be a rebuttable presumption that such property is held in trust for the other spouse.”

8. The Plaintiff submits that the foregoing demonstrates that she made substantial but unascertainable contribution and therefore the maxim equality or equity should apply. In that contention she relies on the holding of the Court in MMK v JJM & Another [2022] eKLR which quoted the Court of Appeal case of Peter Mburu Echaria –vs- Priscillah Njeri Echaria [2007] eKLR at para. 25 thereof and held as follows:“25. The Court of Appeal in Peter Mburu Echaria vs Priscillah Njeri Echaria [2007] eKLR held as follows:Where the disputed property is not so registered in the joint names of the spouses but is registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective proportions of financial contribution either direct or indirect towards the acquisition of the property. However, in cases where each spouse has made a substantial but unascertainable contribution, it may be equitable to apply the maxim “Equality or equity” while heading the caution of Lord Pearson in Gissing –v- Gissing [1970] 2 ALL ER 780] at page 788 paragraph c that:…..No doubt it is reasonable to apply the maxim in a case where there has been very substantial contributions otherwise than by way of advancement, by one spouse to the purchase of property in the name of the other spouse but the portion borne by the contributions to the total purchase price or cost is difficult to fix. But if it is plain, that the contributing spouse has contributed about one quarter, I do not think it is helpful or right for the court to feel obliged to award either one half-or nothing.26. In the present case, from an analysis of the evidence adduced by the parties, it can be readily concluded under our applicable decisional law that the Plaintiff has demonstrated that he contributed both directly and indirectly to the acquisition and development of the Suit Property. Since the extent of contribution cannot be ascertained mathematically, the principle of equality would apply to yield the conclusion that the Plaintiff is entitled to half share of the Suit Property. It is so declared.”

9. In HNM v FTS [2021] eKLR at par. 56 thereof, the Court observed as follows in respect of non-monetary contribution made towards acquisition of matrimonial property by a spouse during the subsistence of the marriage.“Such non-monetary contribution is not illusory or of little or no weight; it is real and tangible contribution and must be given due weight in division of matrimonial property. I must buttress the need for the greater awareness by the Courts of the value of non-financial contribution so the welfare of the family, and the increased recognition that, by being home and having and looking after young children, a wife may lose forever the opportunity to acquire and develop her own money-earning qualifications and skills. The law has taken this position in providing for non-monetary contributions as a factor of ownership in matrimonial property.”

RESPONDENT’S SUBMISSIONS 10. On behalf of the Respondent, it is submitted that from the Notice of Motion filed, the Plaintiff/Applicants allegations that the annexed leasehold title for the matrimonial home L.R. No.12715/30XX in Syokimau said to be developed and properties namely plots No.6XX, 6XX, 8XX & 1XX in phase 1 Mlolongo Ngwata in Mavoko Sub-County is opposed by the Respondent based on the fact that the said subject properties were solely acquired through the income of the Respondent alone and no single contribution was made by the Plaintiff.

11. The Respondent went further to seek the evidence of contribution made by the plaintiff as alleged because both the parties were employed by the Government during the acquisition and if there was any contribution, the plaintiff should prove that either they had a joint back account or she took a loan or mortgage to contribute for the purchase or building.

12. In the Matrimonial Properties Act Section 6(3) the Act provides as follows; despite sub-section (1) the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights: its clear that the parties before entering into their marriage were aware of their rights and had tested disputes in several occasions and each contributed on his/her properties. Such an agreement to purchase jointly did not exist and the Plaintiff’s claim is wrong and out of context. Section 6(3) puts off the Plaintiff’s claim as she was employed and working like the Respondent when the properties were being acquired by the Respondent, the Plaintiff was also acquiring properties in her name.

13. That the Plaintiff’s claim is brought under Section 7 of the Matrimonial Properties Act Legal Notice No.49 of 2013 which 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.

14. That the Respondent submits that the marriage between them is subsisting and they have not divorced or dissolved it therefore the Plaintiff has not right to bring this claim before this Court. The Respondent further submits that the Plaintiff did not contributed even a single shilling towards the acquisition of the mentioned properties neither are the properties acquired in her name and should avoid unnecessary properties dispute with the Respondent and the Respondent prays that the claim be dismissed with costs.

DETERMINATION 15. The Court considered the pleadings filed written submissions filed and exchanged and the issue(s) that emerge for analysis and determination are preservation, management and division of matrimonial property purchased/ acquired and/or developed by the Plaintiff & Respondent during the subsistence of their marriage.LAWSection 6 MPA; the meaning of matrimonial property(1)For the purposes of this Act, matrimonial property means—(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.Section 2 of MPA provides,“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;“family business” means any business which—(a)is run for the benefit of the family by both spouses or either spouse; and(b)generates income or other resources wholly or part of which are for the benefit of the family; “matrimonial home” means any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property;Section 7 MPA provides;Ownership of matrimonial property 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 12 MPA provides;Presumptions as to property acquired during marriageWhere 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; and(b)in the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal.Section 17 MPAAction for declaration of rights to property1. A person may apply to a court for a declaration of rights to any property that is contested between that person and a spouse or a former spouse of the person.In ENN vs. SNK [2021] eKLR relying on the case of AKK vs PKW[2018]eKLR where the court held that for the court to embark on division of matrimonial property, a party must satisfy:The fact of a valid, legal, regular marriage in law;Dissolution of such marriage by/through an order of the Court;That earmarked/listed property constitutes matrimonial property;acquired and developed during subsistence of the marriage;Contribution by each party to the acquisition/development.

16. The Plaintiff/Applicant’s case is that she was married to the Respondent in 1986 under Kamba Customary law and in 2001 they solemnized their marriage as confirmed by copy of Marriage Certificate No 045XXX annexed to the OS.

17. The marriage was blessed with 3 children of the marriage. The Plaintiff was employed in Public Service from 1989 and rose through the ranks in Human Resource & Program Director in the Ministry of [Particulars withheld] as exhibited by annexed letters of Appointment.

18. During the subsistence of the marriage there were episodes of turbulence characterized by the Respondent’s vicious attacks and threats of violence to his family that culminated to gunpoint attacks. The Plaintiff made allegations of the Respondent’s various extra-marital affairs and coupled with social and financial neglect of/to his family save for paying school fees for the children of the marriage. The plaintiff contended the Respondent abdicated his parental obligations and she was left to shoulder up keep and upbringing of the children, grandchild, medical expenses and care of one of the children and a child born out of wedlock.

19. These facts led to the wear and tear of the marriage and culminated in the Respondent’s desertion from the matrimonial home on 2/3/2021 and started another relationship. The plaintiff was left in the matrimonial home.

20. The Plaintiff/Applicant deposed in pleadings and attached documents evidence that she has been in gainful employment for over 30 years since 1989 started as a graduate teacher III ( Job K) and rose through the ranks to Job Group S and during her gainful employment financially supported their nuclear and extended families in settling running expenses at home and in acquisition and development of property for the family.

21. The Plaintiff/Applicant outlined both monetary and non-monetary contribution to the acquisition and development of properties during the marriage. The Plaintiff/Applicant deposed that during the 35 years of marriage and employment she took loans, contributed to construction expansion and improvement; painting and repairs of their property portfolio.

22. The Plaintiff deposed that the matrimonial home is situated on LR No 12715/30XX and LR No 12715/30XX and she took and fully paid mortgage to purchase LR No 12715/30XX while the Respondent bought LR No 12715/30XX.The plaintiff facilitated the transfer of both land Parcels as the Respondent sold the 3rd one LR 12715/30XX.

23. In 2014, their home was mortgaged and she salvaged by repayments the Plaintiff /Applicant made to the Bank as shown by the letter dated 17/3/2017 and payment of Ksh 200,000/-annexed at Pg 11 of Supplementary Affidavit. The Plaintiff settled Shylock’s debt after Auctioneers threatened to invade their home

24. As shown by letter dated 17/2/2016 by Ospot Solutions and paid Ksh 500,000/- as per letters at Pg 12-13 of the Supplementary Affidavit. The Plaintiff paid Ksh 600,000/- to Kenya Coach Industries on 28/8/2019 as shown by receipt at Pg 34 of the Supporting Affidavit, for the Isuzu vehicle held by the Respondent.

25. The Plaintiff /Applicant confirmed ownership of LR No 12715/30XX in her name part of where the matrimonial home stands and a Plot next to their Hotel & guest House at Mlolongo Ngwata Phase1 which the respondent initially purchased and halfway retracted and she completed the sale.

26. The Respondent submitted that he solely purchased LR 12715/30XX Syokimau and properties Plots 6XX, 6XX, 8XX &1XX in Phase 1 Mlolongo. He reiterated that the Plaintiff/Applicant did not show and contribution she made they did not operate a joint account and there is no proof that she took loan/mortgage to contribute to the purchase of construction of the building.

27. The Respondent contended that prior to their marriage they did not enter into any property sharing Agreement and during their marriage the Plaintiff /Applicant acquired 3 storey buildings and 14 Plots which he did not contribute and does not claim.

28. The Respondent asserted that the Originating Summons is brought under Section 7 of MPA their marriage subsists and has not been dissolved and division of matrimonial property is premature.

29. The Respondent alleged that it is the Plaintiff/Applicant who chased the Respondent out of the matrimonial home and the Respondent’s efforts to come back home are worse as the Plaintiff/Applicant is now married and lives with another man.

30. The Respondent claimed that the said /listed properties are registered in his name as he purchased them during the period 2003-2010 when they separated and reconciled through parents’ intervention in 2010.

31. The Respondent intimated that the Plaintiff/Applicant mistreated him, assaulted him and threatened to kill him and he reported the incident at Mlolongo Police Station.

32. In T.M.V. vs F.M.C (2018) eKLR, 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.”

33. The listed properties comprise of matrimonial property as per the definition of Section 6 MPA and as by the Applicant and Respondent’s admission, they were acquired during 2001-2021 and there is no evidence adduced /presented to this Court that their marriage was/is dissolved.

34. In Federation of Women Lawyers Kenya (FIDA) vs. Attorney General & another [2018]eKLR the court stated that:-“The law recognizes equal worth and equal importance of the parties in marriage. Thus, the beneficial share of each spouse as the law on the division of matrimonial property stands in Kenya ultimately depends on the parties proven respective proportions of financial contribution either direct or indirect towards the acquisition of the property. First, the Act recognizes monetary and non-monetary contribution which is clearly defined. By providing that a party walks out with his or her entitlement based on his or her contribution, the section entrenches the principle of equality in marriage.”

35. See also MMK v JJM & Another [2022] eKLR which quoted the Court of Appeal case of Peter Mburu Echaria –vs- Priscillah Njeri Echaria [2007] eKLR at para. 25 supra on division of matrimonial property.

36. When a party embarks on the journey of marriage it is with confidence, prospect and dedication, full service or sacrifice to /for the development, upkeep and well-being of the family. So naturally each party will pull in resources, time and effort. Therefore, one does not keep tabs on each and every action made and consequently, receipts for purchase of foodstuff, clothing, gifts, furniture or equipment are not kept. The law lays emphasis on titled properties, the vehicles, houses, plots and land. The truth is both parties in a marriage augment/support each other to attain the property portfolio.

37. Whereas Section 2 MPA outlines forms of non-monetary contribution it is not exhaustive, apart from domestic work and management of the matrimonial home; child care; companionship; management of family business or property, and farm work; there is child birth and nurturing to ensure wellbeing of the children especially by the resident parent. There are small and regular purchases made for the upkeep of the home, daily food stuff from the market, necessary clothing for children etc that are hardly factored in as contribution.

38. The Court associates with the various monetary and non-monetary contributions made by parties to a marriage.

39. In Nakuru High Court in MW vs. AN [2021] eKLR by LJ Teresia Matheka, opined that housewife is a full-time job worthy of compensation.“That was his contribution to the upkeep of the family as the plaintiff was home taking care of the children. This other part of mothering, housekeeping and taking care of the family is more often than not given any value when it comes to sharing matrimonial property. It is easy for the spouse working away from home and sending money to lay claim to the whole property purchased and developed with that money by the spouse staying at home and taking care of the children and the family. That spouse will be heard to say that the other one was not employed so they contributed nothing. That can no longer be a tenable argument as it is a fact that stay at home parents and in particular women because of our cultural connotations do much more work (house wives) due to the nature of the job. For instance society has now placed monetary value to carrying a baby in the womb. This is seen on the unregulated surrogacy agreements that people are getting into. Raising of children is a full time job that families pay a person to do. Cooking and cleaning as well. Hence for a woman in employment who has to balance child bearing and rearing this contribution must be considered. How do we put monetary value to that process where a woman bears the pregnancy, gives birth, and takes care of the babies and where after divorce or separation she takes care of the children single handedly without any help from the father of the children? Should this court take this into consideration when distributing matrimonial property where the husband as in this case is left in the matrimonial home where the wife rents a house to provide shelter for herself and the children, I think it should count, especially where the husband has not supported the raising of the children, has not borne his share of parental responsibility.”

40. From the above summary, I find the Plaintiff/Applicant contributed financially to the acquisition and development of properties during the marriage. The receipts and letters attached confirm part payments to various properties totaling to Ksh 1. 2 million. This Court notes that the Plaintiff/Applicant having been in gainful employment throughout her married life, certainly augmented the family finances to enable the Respondent save funds to acquire registered family property.

41. On the other hand, the Respondent also asserts he purchased the properties and although no proof is provided, the properties are registered in his names and the Court notes it is pleaded he worked as an Accountant by profession he also had an illustrious career as City Treasurer at some point in his life.

42. In the absence of inter partes hearing where via voce evidence is adduced, this Court relied on the Affidavits and annexures which are not conclusive on each party’s exact contribution to the acquisition of the properties during the marriage. To the extent possible; the evidence illuminates to the following facts;

43. The Plaintiff/Applicant as the resident parent was responsible for nurturing and ensuring well being of the 5 children in the family. It is conceded the Respondent provided the home jointly with Plaintiff/Applicant and he paid school fees but the Applicant was left to fend for food and clothing and upkeep of the children.

44. In Muthembwa vs Muthembwa [2002], the Court found that the Respondent, has made both direct and indirect contribution towards the acquisition of all properties and held her contribution was equal to that of her husband. It was common ground that except for a short time, when the wife was merely a housewife, she was engaged in gainful employment throughout the period of cohabitation between the parties and her income was substantial.

45. Section 12 of MPA provides that it is a rebuttable presumption where the property is registered in one party’s name and it is shown that the other party contributed to the acquisition of the property.

46. In the case of Njoroge vs. Ngari [1985] KLR, 480, the court held that“if a matrimonial property is being held in the name of one person, even if that property is registered in the name of that one person but the other spouse made contribution towards its acquisition, then each spouse has proprietary interests in that property.”

47. In the case of AKK vs PKW Civil Appeal 61 of 2019 C.A. held;….. a declaration under Section 17 MPA is not necessarily pegged on the subsistence of a marriage. The effect of this section is that the Court can make a declaration with regard to the suit property even though the parties are still married or pending divorce. It is our considered view that the High Court has jurisdiction to declare the rights of parties in relation to any matrimonial property which is contested. However, by virtue of Section 7, the High Court cannot divide matrimonial property between spouses until divorce or their marriage is otherwise dissolved.

48. To that extent that the parties have lodged a claim /dispute of ownership of matrimonial property, this Court finds that these properties are matrimonial properties acquired during the subsistence of the marriage of the Plaintiff/Applicant and Respondent. Although registered in the name of the Respondent in certain instances from the evidence on record it emerges that both parties made contributions to acquisition and development of these properties.

49. Section 12 MPA makes registration of property there is a rebuttable presumption the property is held in trust for the other party, so registration of the properties in the Respondent’s name where evidence shows contribution by the Applicant means the property is owned by both parties.

50. This Court has not seen/or been presented with evidence of divorce or dissolution of marriage between the parties and therefore by virtue of Section 7 MPA they cannot lawfully divide the matrimonial properties yet. Instead this Court shall declare rights of the parties over the said properties under:-Section 17 MPAAction for declaration of rights to property1. A person may apply to a court for a declaration of rights to any property that is contested between that person and a spouse or a former spouse of the person.

DISPOSITION 1. Property LR. No.12715/30XX situated in Syokimau – Machakos- matrimonial home is on 2 parcels of land one purchased by Plaintiff and the other by Respondent. The respondent moved out and the Plaintiff resides in the matrimonial home. Therefore, the home belongs to both parties in equal shares. If/when the marriage is dissolved, one party may buyout the other upon valuation of the home. If the marriage is not dissolved then by virtue of Section 17 MPA a declaration is made that the matrimonial home belongs to both Plaintiff/Applicant and Respondent as joint property to be divided equally upon dissolution of the marriage.

2. Plot No.1XX and developments thereon under the Mavoko Land Development Company limited Scheme in Ngwata area in Mlolongo, Mavoko Sub-County in Machakos County.

3. Plot No.1XX Phase I under the Mavoko Land Development Company Limited Scheme in Ngwata area in Mlolongo Mavoko Sub-County in Machakos County.

4. Plot Nos.8XX and 8XX and developments thereon under the Mavoko Land Development Company Limited Scheme in Ngwata Area in Mlolongo, Mavoko Sub-County in Machakos County.

5. Plot Nos.6XX and 6XX and developments thereon under the Mavoko Land Development Company Limited Scheme in Ngwata Area in Mlolongo, Mavoko Sub-County in Machakos County.

6. Plot Nos.9XX Phase 1 under the Mavoko Land Development Company Limited Scheme in Ngwata Area in Mlolongo, Mavoko Sub-County in Machakos County.

7. Properties 2,3,4,5,& 6 above shall be held and declared under Section 17 MPA as jointly owned and held by both Plaintiff and Respondent jointly pending dissolution of the marriage and/or proof of contribution acquisition and/or development by each of the parties other than registration after dissolution of the marriage.

8. The Plaintiff’s properties if she obtained a share in the above – mentioned properties hers will also be considered matrimonial property and subject to contribution be apportioned prorata.

9. The Court orders of 22/12/2021 by Hon G.V.Odunga J ( as he then was) and this Court’s orders of 11/1/2022 to remain in force and ensure compliance by Respondent in default the Deputy Registrar to write to tenants of the business buildings half of them to pay rent directly to the Plaintiff/Applicant.

DELIVERED DATED & SIGNED IN OPEN COURT IN MACHAKOS ON 8TH DECEMBER 2022 (VIRTUAL/PHYSICAL CONFERENCE)M. W. MUIGAIJUDGEIN THE PRESENCE OF:Mr. Litoro - for the PlaintiffMs Babu for the DefendantPatrick – Court Assistant