https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5961

EKR v PRN (Matrimonial Cause E024 of 2024) [2026] KEHC 5961 (KLR) (5 May 2026) (Judgment) Neutral citation: [2026] KEHC 5961 (KLR) Republic of Kenya In the High Court at Nakuru Matrimonial Cause E024 of 2024 SM Mohochi, J May 5, 2026 Between Ekr Applicant and Prn Respondent Judgment 1.Before me is a Summons dated 3rd October, 2024 brought pursuant to Article 45(3) of the Constitution and Sections 4, 6, 7, 12, 14 (a) & 17 of the Matrimonial Property Act seeking the following prayers:i.A Declaration that all the parcel of land known as Nakuru Municipality/block 24/XXX measuring approximately 0.0543 hectares together with all structures, fixtures and fittings and registered in the name of Peter Rioba Nyaora is matrimonial Property of Peter Rioba Nyaora and Eunice Kwamboka Rioba and the same be apportioned in the ratio of 80:20 in favour of the Applicant.ii.A Declaration that rental income from the shops erected on Nakuru Municipality/block 24/XXX and the proceeds from sale of Tea from the Kisii farm is matrimonial property and should be deposited in a joint account in the names of both parties for their joint use in the ratio of 80:20 in favour of the Applicant.iii.A Declaration that the matrimonial home in Kisii is matrimonial property being held by the Respondent in trust for the Applicant and their children.iv.A Declaration that the Muthurwa house previously owned by the Respondent and which was unilaterally disposed by the Respondent was matrimonial property being held by the Respondent in trust for the Applicant and their children and that the Respondent to account for the proceeds and remit the same into the join account.v.A Declaration that the unascertained parcel of land in Kapkures registered in the name of Peter Rioba Nyaora is Matrimonial Property and is being held by the Respondent in trust for the Applicant and their children. The same be apportioned equally between them.vi.A Declaration that the unascertained parcel of land in Piave registered in the name of Eunice Kwamboka Rioba is Matrimonial Property and is being held by the Applicant in trust for the Respondent and their children. The same be apportioned in the ration 80:20 in favour of the Applicant.vii.An order of Permanent Injunction restraining the Respondent by himself, his agents, servants, employees and/or any other person whomsoever acting under his instructions from evicting the Applicant from the matrimonial property and/or from blocking ingress, occupation pf and egress from the named properties.viii.Costs of this Summons to be borne by the Respondent. 2.The Application was Supported by the Applicant’s Affidavit evenly dated wherein she deposes that she got married to the Respondent on 2nd May, 1989. They lived in rental housing until 29th November 1997 when using her savings, they acquired Nakuru Municipality/Block 24/XXX, to which she consented it be registered in the Respondent’s name. They established their matrimonial home there. 3.The Respondent got employment with Telkom Kenya and was posted far while the Applicant remained in Nakuru with their children and started a business with the profits being utilized for family needs. 4.That they opened a joint account where the Respondent unilaterally withdrew all the savings amounting to Kshs. 60,000. That she paid Land rent and rates, solely met all needs of our three children and paid their school fees up to tertiary level. 5.That she sought the assistance of the Respondent who meted physical, verbal and emotional abuse. That the Respondent openly engaged in extramarital affairs and neglected parental responsibilities despite the Applicant obtaining Court orders for maintenance. 6.That upon the Respondent’s retirement in 2016, the situation worsened. He exhausted his pension, disposed of his Nairobi home, threatened to auction her shop prompting her to register a caution on Nakuru Municipality Block 24/XXX. 7.Eventually, the elders and police intervened and the Respondent relocated to Kisii. That she had contributed to the development of the Kisii property, including construction of a home and establishment of tea and banana plantations, though it is managed solely by him. 8.That the Respondent purchased the Muthurwa house which he later disposed without her consent and utilized the proceeds. That he should be compelled to account for the proceeds and deposit the money in their joint account. 9.She asserts equal beneficial ownership of the Nakuru, Kisii, and Muthurwa properties due to her domestic work and management of the matrimonial home, child bearing and child care, provision of companionship, management of family business and property as well as farm work. 10.That the Respondent has directed tenants on Nakuru Municipality/Block 24/XXX to deposit rental income into his sole account depriving her of rental income which she uses to sustain herself. That the rental income is considered marital property and should be handled in a manner that reflects mutual interest between them. 11.She deposes that she purchased a property in Piave that is awaiting issuance of Title deed while the Respondent also purchased a property in Kapkures that is yet to be registered. That the two properties are matrimonial and they are holding it in trust for each other. Respondent’s Case 12.The Applicant who is acting in person filed his response but titled it submissions and dated 21st July, 2025. He stated that the Applicant purchased land at Piave using rental income from Plot No. 24/XXX. Contrary to court orders issued on 19th March 2025, she sold the Piave land to Mr. Charles for Kshs. 72,500, with a balance of Kshs. 199,425 accruing to her. 13.The Respondent requests that the Applicant be compelled to bring the total sum of Kshs. 271,925 before the Court, as reflected in the sale agreement. 14.Additionally, the Respondent notes that in 2023, Kshs. 780,000 was collected from rental income, with Kshs. 100,000 left outstanding for land rates. He seeks a full financial breakdown from the Applicant on how the funds were spent, as he has not been updated on the matter. 15.He asserted that on 14th March 2025, the Applicant left the matrimonial home and relocated to her shop, where she continues to reside. The Respondent believes this was done to justify false allegations of eviction and to avoid marital responsibilities such as preparing meals, managing household duties, and maintaining the marriage. 16.The Respondent states that the Applicant has been disrespectful, insulting and ridiculing in character. He therefore requests this Honourable Court to issue orders directing the area chief to write a letter requiring the Applicant to vacate the shop and relocate with him to his ancestral home in Kisii. 17.The Application was argued orally with both parties testifying. Applicant’s Submissions 18.The Applicants submits that that the fact that the parties herein have not initiated divorce proceedings is irrelevant to the competence of this Court to hear and determine this matter on its merits. Reliance was placed in AKK vs PKW eKLR (Civil Appeal 61 of 2019). 19.The Applicant contends that the following properties are matrimonial home Nakuru Municipality/Block 24/XXX together with all structures, fixtures and fittings, the ancestral land in Kisii, Plot No. Kaptugen Trading Centre/39 (Old 1942) (LR No. 13105), Muthurwa house previously owned by the Respondent and unregistered parcel of land in Piave. 20.It is argued that the Applicant made both direct and indirect contribution. That the Nakuru Municipality/Block 24/XXX and the Piave property was registered with the funds of the Applicant and she ought to get 80% Reliance was placed in F.S v E.Z [2016] eKLR and LIO v AOO [2020] eKLR. 21.While making reliance to HNM v FTS [2021] eKLR she submits that that she established the Kisii property and such it should be declared matrimonial property being held by the Respondent in trust for the Applicant and their children 22.As regards the Plot No. Kaptugen Trading Centre/39 (Old 1942) (LR No. 13105) and the Muthurwa house previously owned by the Respondent the Applicant submits that her attention to the children, establishing the Nakuru Home and farm work in Kisii provided an enabling environment for the Respondent to acquire these two therefore seeks 50%. 23.She further submits that without injunctive orders sought, the Applicant stands to suffer continued harassment, violence and eviction, thus rendering her destitute. 24.Finally on costs the Applicants submits that the Respondent should be condemned to costs since despite demand and notice of intention to sue he remained adamant, leading to filing of this suit. Respondent’s Submissions 25.The Respondent in his submission dated 3rd November, 2025 submits that the Applicant continues to reside with him in the Nakuru property and emphasizes that no divorce certificate has been produced. That earlier claims of failure to pay school fees, were dismissed for lack of proof, which he argues shows a pattern of unfounded allegations. 26.He further states that he has established a permanent home in Kisii, complete with farmland and crops and has requested the Applicant to relocate there but she has declined. 27.He submitted that the Applicant receives 29.8% of rental income which he considers that to be the welfare of the Applicant on humanitarian grounds but now demands 80%. The demand disregards the profit margins of the business. 28.That in 2023, the Applicant misused and misappropriated Kshs. 780,000 further undermining her credibility in financial matters. He added that he forgave the Applicant for the sale of Piave in Njoro for Kshs. 271,925. 29.The Respondent disputes the Applicant’s caveat on Plot No. 24/XXX, stating that it was baseless since he had no intention of selling the land. He stresses that family investments are meant to benefit future generations, particularly his children, and not to serve the Applicant’s personal interests. 30.He concludes by submitting that the Applicant’s claims are baseless and unconstitutional, and requests this Honourable Court to order the Applicant to relocate from Nakuru to the ancestral home in Kisii. Analysis and Determination 31.I have considered the pleadings herein and the oral testimonies of the parties. the questions germane for determination are: -i.Which properties are considered matrimonial property.ii.Whether this Court can entertain distribution at this point.iii.Whether this court should issue an order of permanent injunction restraining the Respondent his agent and/or servants from interfering with the matrimonial Properties.iv.Who bears costs of the suit. 32.The Applicant has raised the issue of jurisdiction while the Respondent has insisted that the marriage is still subsisting. This Court already addressed the question of jurisdiction as well as the question of whether the Court can make any declarations in its Ruling delivered on 19th March, 2025. Accordingly, the matter of jurisdiction and make declaration in respect to interest of properties of parties’ herein within the meaning of Section 17 of the Matrimonial Act is settled. 33.As to which properties constitute matrimonial property, it is not disputed that the Applicant and the Respondent lived as husband and wife and the union is still subsisting. There were properties acquired during the coverture and the Applicant has listed the following properties as matrimonial properties: -a.Nakuru Municipality/Block 24/XXXb.Plot No. Kaptugen Trading Centre/39 (Old 1942) (LR No. 13105)c.Muthurwa house previously owned by the Respondent andd.Unregistered parcel of land in Piave.e.Ancestral land in Kisii 34.Section 6 of the Matrimonial Property Act defines what constitutes matrimonial property. It states that matrimonial property includes;a.the matrimonial home or homes,b.household goods and effects in the matrimonial home or houses or;c.any other immovable and movable property jointly owned and acquired during the subsistence of the marriage 35.Under Section 2 of the Act, ‘Matrimonial home’ has been defined as:-“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.” 36.Further, Section 14 of the Act provides that:“Where matrimonial property is acquired during marriage-a.In the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse; andb.In the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal.” 37.In T.M.V. vs F.M.C [2018] KEHC (KLR), 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. 38.From the record, only two ownership documents are available: Nakuru Municipality/Block 24/XXX and Plot No. Kaptugen Trading Centre/39 (Old 1942) (LR No. 13105), acquired in 1997 and 2001 respectively. The joint affidavit confirms that the parties were married on 2nd May, 1989. In terms of Section 6(1) of the Matrimonial Property Act, I am satisfied that these two properties fall within the definition of matrimonial property. 39.Pertaining to the ancestral land in Kisii, the Court observes that ancestral land is generally regarded as family property held in trust under customary law and inherited for the benefit of the wider family lineage. It cannot therefore be treated as the exclusive asset of one spouse in a matrimonial dispute. 40.That said, there are mitigating circumstances where the Court may blur those lines particularly where the matrimonial home is situated on such land and the other spouse has substantially contributed to its improvement or development. In such instances, the spouse’s beneficial interest in the matrimonial home may be recognized notwithstanding the customary trust attaching to the ancestral land. 41.In the present case, the evidence on record confirms that the Respondent resides there. What remains unclear is when the property was acquired. No proof has been tendered of any developments on the land or the alleged banana and tea plantations. 42.In SAM v WOG [2024] KEHC 9590 (KLR) the Court was of the view that: -“The Applicant did not tender any evidence of development or improvement on the ancestral land. In the absence of such evidence, I find that she has no interest in the property and her claim is rejected.” 43.Similarly, the Court in FNM v JAM [2023] KEHC 26263 (KLR) held: -“In my opinion, ancestral land cannot be matrimonial property unless it is shown that a spouse made identifiable improvements on it during coverture. The applicant did not convince me that she is entitled to the said parcel of land. Accordingly, it is my finding that the land in Karama, Meru is not matrimonial property.” 44.It is trite that he who alleges must prove. If the Applicant claims to have undertaken such developments, the nature and extent have not been demonstrated. Mere references to plantations or vague assertions do not amount to credible proof. I make the finding that the ancestral land in Kisii not matrimonial property. 45.As regards the Muthurwa house, the Respondent has denied ownership and maintained that he was merely a tenant. The burden lay on the Applicant to prove her assertions. In the absence of such proof, the claim and even existence of the Muthurwa property cannot stand. 46.The Applicant has candidly acknowledged ownership of the unregistered parcel of land in Piave Njoro save for the absence of a formal title. She has expressly denied disposing of the property and insists that it constitutes matrimonial property. Her position is that notwithstanding the lack of registration, the property should be treated as part of the matrimonial estate and accorded due consideration in that context. 47.It is unusual for an Applicant in matrimonial proceedings to openly acknowledge ownership of a parcel of land she claims to have purchased solely. Ordinarily, parties either contest ownership or resist inclusion of such property. 48.In the circumstances and given her unequivocal assertion of its matrimonial character, the Court is persuaded that the Piave parcel falls within the pool of assets to be considered. Whether the Court can entertain the issue of distribution? 49.From the evidence before the Court, it is not in dispute that the parties were married. It is equally clear that the marriage has irretrievably broken down. Although the divorce proceedings have not been finalized, the parties are separated and living independently of each other. 50.FJK v PKY [2025] KEHC 1256 (KLR) to argue otherwise. In that case, the Court held:“In view of the foregoing, it is my considered view that this court has jurisdiction to make declarations only as to interest in property during the pendency of a marriage. The issues of distribution of the property can only be determined upon dissolution of a marriage. From the foregoing, this court can only make declaration in respect to interest of properties of parties herein but as at now, no evidence has been adduced to establish contribution of each party in acquisition of the properties herein. 51.In TMW v FMC (supra) the court held that: -“I have not seen proof of divorce in form of a decree declaring the marriage between the parties dissolved. As to the document to proof divorce the law recognizes decree Nisi or decree absolute. So far as the language of the matrimonial property Act is concerned it must be obvious that the parties have terminated their cohabitation and there is no likelihood of reconciliation. The court is not a vehicle that encourages the breaking up marriages or setting them asunder. I cannot find better words rather than stating that the family is one of nature’s masterpieces. That is the spirit of the constitution of Kenya under Article 45 of the constitution which provides that:“45. (1) The family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State.This entails that the state has an obligation to protect the sanctity of marriages. In that regard, no court in its right mind may encourage destruction of families. Thus, if families are not protected or if courts are to give a blind eye on the mischief divorce, the spirit of section 45(1) of the constitution aforementioned will be defeated. I agree with the assertions of my brother W.M. Musyoka. J in MNW v WNM & 3 Others where he stated that “it is against public notice to entertain matrimonial disputes as it would accelerate the break-up of the family involved and that public police favour family unity and should foster peace and reconciliation.” Alienation of lands between spouses during unbroken coverture does not augur well for the well-being of the family as a unit.In the premises, I’m of the view that the Petitioner herein is entitled to a share which may not be equal to that of the Respondent if at all the matrimonial property is to be distributed. The suit property herein cannot be subject to distribution without proof of divorce.” 52.Guided by these authorities, this Court finds that while it may declare the respective interests of the parties in the properties identified, it lacks jurisdiction to order distribution until the marriage is formally dissolved. Each party’s entitlement will be determined upon dissolution of the union. Whether this court should issue an order of permanent injunction restraining the Respondent his agent and/or servants from interfering with the matrimonial Properties 53.The Applicant has sought a permanent injunction restraining the Resppndent from evicting, selling or interfering with shared properties. In MO vs AOW [2017] eKLR the Court was of the view that:“A permanent injunction is typically issued once a lawsuit over the underlying activity is resolved, as distinguished from a preliminary injunction, which is issued while the lawsuit is pending. As stated hereinabove, the extent of the couples’ contribution is yet to be determined.That is not to say, however, that the plaintiff’s right cannot be protected. Section 3A provides that: -“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court”. 54.Section 12 (2) of the Matrimonial Property Act it states that:“A spouse in a monogamous marriage, or in the case of a polygamous marriage, the man and any of the man’s wives, have an interest in matrimonial property capable of protection by caveat, caution or otherwise under any law for the time being in force relating to the registration of title to land or of deeds.” 55.It would serve little purpose for this Court to merely declare rights in matrimonial property without ensuring that such rights are protected. In the circumstances, and in the interest of justice, the Court finds it necessary to preserve the subject properties. This measure safeguards the properties and ensures that the eventual distribution, if warranted, is not rendered nugatory. 56.Having stated the foregoing, I direct that: -a.A Declaration is hereby issued that all the parcel of land known as Nakuru Municipality/block 24/XXX measuring approximately 0.0543 hectares together with all structures, fixtures and fittings and registered in the name of the Respondent is matrimonial Property and is being held by the Respondent in trust for the Applicant.b.A Declaration is hereby issued that all the parcel of land known as Plot No. Kaptugen Trading Centre/39 (Old 1942) (LR No. 13105) and registered in the name of the Respondent is matrimonial Property and is being held by the Respondent in trust for the Applicant.c.A Declaration is hereby issued that rental income from the shops erected on Nakuru Municipality/block 24/XXX is matrimonial property and should be deposited in a joint account in the names of both parties for their joint use.d.A Declaration that the unascertained parcel of land in Piave registered in the name of the Applicant is Matrimonial Property and is being held by the Applicant in trust for the Respondent.e.An order of permanent injunction is hereby issued restraining the Respondent by himself, his agents, servants, employees and/or any other person whomsoever acting under his instructions from evicting the Applicant from the matrimonial properties and/or from blocking ingress, occupation of and egress from the named matrimonial properties.f.This being a family issue, each party shall bear their own costs. It is so ordered. SIGNED, DELIVERED VIRTUALLY ON TEAMS PLATFORM ON THIS 5TH DAY OF MAY, 2026MOHOCHI S.MJUDGE