https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11266

ESM v JOM (Matrimonial Property Cause (OS) E021 of 2026) [2026] KEHC 11266 (KLR) (Family) (13 July 2026) (Ruling) Neutral citation: [2026] KEHC 11266 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Matrimonial Property Cause (OS) E021 of 2026 CJ Kendagor, J July 13, 2026 IN THE MATTER OF MATRIMONIAL PROPERTY ACT, 2013 Between ESM Applicant and JOM Respondent Ruling 1.The Applicant filed an Originating Summons on 25th March, 2026 seeking a declaratory order to establish a presumption of marriage between her and the Respondent. She also seeks a declaration that the property at Plot No. xxx, Umoja III Estate, Nairobi, and Plot No. xxx, Umoja III Estate, Nairobi, together with the motor vehicles KBK xxxM and KAU xxxR, are matrimonial property. Additionally, she seeks that the Court determine the respective beneficial interests in these properties, among other prayers. 2.Alongside the originating summons, the Applicant filed a notice of motion application dated 25th March, 2026, which is the subject of this ruling. The application enumerates 13 prayers as follows.;i.Spentii.That the Court grants an interim protection order for the benefit of the applicant and against the respondent, prohibiting the respondent from assaulting, intimidating, contacting or coming within the vicinity of the applicant and the minor children;iii.That in the interim she be granted exclusive occupation of the matrimonial home;iv.That the respondent be restrained from entering or accessing the home or interfering with the applicant’s quiet possession upon the order for exclusive occupation by the applicant;v.That the respondent and their agent be restrained from selling, transferring, or otherwise dealing with the motor vehicles KBK xxxM and KAU xxxR until the suit is heard and determined;vi.That the National Transport and Safety Authority be directed to place a restriction on the specified motor vehicles, prohibiting any transfer, re-registration, charge, or encumbrance until the suit is heard and determined;vii.That the respondent be ordered to surrender possession of the above motor vehicles pending the hearing and determination of the suit;viii.That an order do issue for the preservation of the property Plot No. xxx, Umoja III Estate, Nairobi, referred to as the matrimonial home and Plot No. xxx, Umoja III Estate Nairobi, pending the hearing and determination of the suit;ix.That the Officer Commanding Mowlem Police Station be directed to provide security, oversee the applicant’s re-entry to and occupation of the matrimonial home, enforce protection orders and the respondent’s exclusion from occupation, and supervise the surrender of the motor vehicles.;x.That she be granted interim custody, care and control of the minor children BM, BRO and BA;xi.That order issued to remain in force pending the hearing and determination of the suit;xii.Costs of the application;xiii.Any other relief the court may grant, as it deems just and expedient under the circumstances. 3.The application is supported by a supporting affidavit of even date and a further affidavit dated 13th April, 2026. 4.The Respondent opposed the application through their replying affidavit dated 8th April, 2026. 5.Both parties filed submissions. The Applicant’s case 6.The Applicant states that they cohabited with the Respondent for 17 years and had three children. She averred that the Applicant subjected her to domestic violence, prompting her to leave the matrimonial home with the children on 16th November, 2025. 7.She stated that she is presently without stable accommodation and maintained that the Respondent had moved out of the house and was not in occupation after she moved out. 8.The Applicant provided evidence of a criminal case, Makadara CM Criminal Case No. E6074 of 2025, in which she is the Complainant and the Respondent is the accused. The Respondent is charged with assault causing actual bodily harm, threatening to kill, and causing grievous harm. 9.The Applicant stated that their relationship has been characterized by an escalating pattern of domestic violence. 10.She further stated that she acquired and contributed to the purchase of the mentioned properties and asked that the Court preserve them, arguing that they are at a real and imminent risk of disposal by the Respondent. The Respondent’s case 11.The Respondent contests the applicant’s claim of any proprietary interest in the specified properties. 12.He also denies the allegations of domestic violence and contends that the application lacks sufficient evidence to support its claims. 13.Further, he opposes the prayer for an order granting the Applicant exclusive possession and occupancy of the matrimonial home, arguing that the Applicant voluntarily left the residence along with all household goods. Analysis and determination 14.Upon reviewing the application, affidavits, and submissions by the parties, I identify the following issues for determination;a.Whether the court should issue a protection order as sought by the applicant;b.Whether the applicant should be granted exclusive occupation of the property referenced as the matrimonial home pending the hearing and determination of the suit;c.Whether the applicant should be granted interim custody of the minors;d.Whether the court should issue orders of preservation of the referenced property pending the hearing and determination of the suit. 15.The special nature of this matter is that the application for the protection order has been made in the file where the Applicant has filed the O.S seeking orders under Section 17 of the Matrimonial Property Act, which provides as follows;Action for declaration of rights to property(1)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.(2)An application under subsection (1)—(a)shall be made in accordance with such procedure as may be prescribed;(b)may be made as part of a petition in a matrimonial cause; and(c)may be made notwithstanding that a petition has not been filed under any law relating to matrimonial causes. 16.The Respondent has not yet filed a response to the originating summons. The Court recognizes that the case is still pending hearing and determination and that at this stage, the court is being asked to consider the interlocutory application for orders to be granted pending the hearing and determination of the case. 17.A protection order may be made under Section 13 of the Protection Against Domestic Violence Act where the need for protection arises from acts of or the risk of domestic violence. In this case, the evidence of the pending criminal case at the Chief Magistrate’s Court Makadara is significant, as it establishes that the allegations are not trivial, having advanced to a criminal Court trial. This Court will not engage in a detailed analysis of the evidence, as this will be addressed during the criminal trial. 18.However, based on the information currently available, the Court finds a genuine risk of domestic violence. Consequently, a protection order is hereby issued in favour of the Applicant. Further, in accordance with Section 16 of the Protection Against Domestic Violence Act, the Court extends this protection to cover the minor children involved. 19.The affidavits show that there remains a significant degree of intolerance between the parties. Upon reviewing the applicant’s prayer for re-entry into the residence identified as the matrimonial home, I have taken into account the concerns presented by both parties, along with the current level of acrimony and the presence of criminal charges. I believe that the safety and well-being of the Applicant, Respondent, and children are the top priorities, and returning the Applicant to the residence would not serve their best interests. 20.The Applicant has raised triable issues in the O.S, and as stated, no response has yet been filed in opposition. In the interests of justice, it is essential to issue an order preserving the properties in question to ensure that they remain accessible to comply with any decree or order that may be rendered by the Court. 21.The Court has further determined that the matters concerning the custody, access, and maintenance of the children are more suitably addressed in the Children’s Court rather than allowing these issues to be conflated with the proceedings regarding the matrimonial property. 22.Disposition;a.Due to the risk of domestic violence, the Court declines the Applicant’s prayer for re-entry to and occupation of the property referred to as the matrimonial home pending the hearing and determination of the suit;b.Protection Order;i.The need for protection arises from the risk of domestic violence and therefore a protection order is hereby issued for the benefit of the Applicant and the same shall also apply for the benefit of the minor children;ii.The Respondent shall not engage in any conduct that may result in acts of domestic violence against the applicant and the minor children;iii.The Respondent shall not engage in, or threaten to engage in, any behaviour, including intimidation or harassment, that amounts to emotional or psychological abuse of the Applicant and the minor children;iv.The Respondent shall not access the Applicant’s place of residence;v.The Respondent shall not stalk, stop or accost the Applicant in any place;vi.The protection orders shall remain in force until the hearing and determination of the matter or as may be reviewed by the court during the pendency of the suit;vii.The application of the protection order over the children shall remain in force until the children’s matter is filed and relevant orders are issued therein;c.Temporary orders are issued preserving the properties referenced in the originating summons application, prohibiting their sale, transfer, charge or any other encumbrance pending the hearing and determination of the suit;d.Costs shall abide by the outcome of the main suit.e.The matter to be listed for hearing on a priority basis. 23.Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 13TH DAY OF JULY, 2026.……………………C. KENDAGORJUDGEIn the presence of:Court Assistant: RachealMr. Maiyo, Advocate for the ApplicantNo attendance for the Respondent