https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12457

EWN v INK (Matrimonial Property Cause (OS) E002 of 2025) [2026] KEHC 12457 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 12457 (KLR) Republic of Kenya In the High Court at Machakos Matrimonial Property Cause (OS) E002 of 2025 EN Maina, J July 30, 2026 IN THE MATTER OF SECTIONS 2, 6, 7, 9, 12, 13, 14 AND 17 OF THE MATRIMONIAL PROPERTY ACT, 2013 -AND- IN THE MATTER OF AN APPLICATION FOR THE DIVISION OF MATRIMONIAL PROPERTY Between EWN Plaintiff and INK Defendant Ruling 1.EWN (the “Applicant”) and INK (the “Respondent”) were formerly husband and wife, having contracted both a Kikuyu customary marriage and a statutory marriage on 3rd December 2005 at [Particulars Withheld] Baptist Church, Nairobi. The marriage was dissolved by the Chief Magistrate's Court at Mavoko in Divorce Cause No. 18 of 2018, by judgment delivered 28th September 2020 and decree made absolute on 28th October 2020, copies of which are annexed to the Respondent's Replying Affidavit as “INK-6A, B & C”. Three issues were born of the union: AWN (born 1st September 1994), NGN (born 23rd December 2009), and NWN (born 1st September 2011). 2.By a Notice of Motion dated 17th February 2025, brought under Order 40 Rules 1(a), 2, 3(1), (3), 4(1), (2) & (3) and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3, 3A, 7 and 63(e) of the Civil Procedure Act; Sections 2, 6, 7, 9, 12(1), (3), (4) & (5), 13, 14 and 17 of the Matrimonial Property Act; and Articles 2(1) & (4), 10, 11, 19(2), 20, 22(1), 27, 28, 40(1), 45(3), 50(1) and 159 of the Constitution, the Applicant sought, among other orders:i.That service of the application be dispensed with in the first instance;ii.That the application be heard ex parte in the first instance, certified urgent and heard on priority basis;iii.A temporary injunction restraining the Respondent, his agents, servants or any person claiming under him from entering upon, remaining on, evicting, removing from, wasting, digging on, excavating, fencing, erecting any structure on, or otherwise dealing with Land Reference Number 12715/5490 (the “First Property”), including the building and improvements thereon, in any manner interfering with the Applicant's quiet possession and use of the same as her matrimonial home, pending the hearing and determination of the application and thereafter the suit; andiv.A temporary injunction restraining the Respondent from wasting, leasing, selling, transferring, charging, disposing of or otherwise dealing with all that parcel of a quarter acre of land situated at Kantafu, Ruai (the “Second Property”) in any manner interfering with or taking away the Applicant's lawful matrimonial interest therein, pending the hearing and determination of the application and thereafter the suit. 3.Prayers (i) and (ii above were granted ex parte on the initial mention of the application and are accordingly spent. What remains for determination are the orders of interlocutory injunction sought in respect of the First and Second Properties, pending the hearing and final determination of the substantive Originating Summons. 4.The application is supported by the Supporting Affidavit of the Applicant sworn on 17th February 2025 and a Supplementary Affidavit later sworn on 28th October 2025, filed pursuant to leave of the Court granted on 23rd July 2025. The Supporting Affidavit is opposed by the Replying Affidavit of the Respondent sworn on 5th March 2025, itself annexing, among other things, the Respondent's employment records, the parties' marriage certificate, title documents for the First Property, and the pleadings, judgment and decree absolute in the Mavoko Divorce Cause No. 18 of 2018. The parties thereafter filed rival written submissions: the Respondent's Written Submissions dated 28th October 2025, the Applicant's Written Submissions dated 26th November 2025, and the Applicant's Reply to the Respondent's Written Submissions dated 26th November 2025. The Applicant's case 5.The Applicant deposes, in her Supporting Affidavit, that she met the Respondent in 2002 while both were working at the [Particulars Withheld] Hospital, she as a Community Health Nurse and the Respondent as a doctor. In her Supplementary Affidavit sworn 28th October 2025, filed in response to the Reply, she clarifies that the two in fact met in early 2003, during the Respondent's ward rounds while she attended to admitted patients, this notwithstanding his earlier and separate formal employment with Med-X Kenya between October 2001 and December 2002. She avers that courtship began almost immediately, that the parties mutually visited one another's residences , she then living at Mlango Kubwa Estate, Pangani , and that in 2004 she relocated her belongings to her rural home in Nyeri and moved in with the Respondent at his Thome residence as husband and wife, following performance of the Kikuyu customary rites of “kuhandia ithigi” and “ruracia”, with the blessing of both families, she was thereafter picked up, on the eve of the formal wedding, from her paternal uncle's residence in Kasarani for the church ceremony. She places the pre-cohabitation courtship at approximately one-and-a-half years. 6.She avers that she is the biological mother of AWN, and disputes the Respondent's suggestion that he only learnt of the child's existence by accident during the courtship. She maintains that the Respondent was aware of Anita from the outset, that at the customary “ruracio” ceremony he was fined a goat in accordance with Kikuyu custom for assuming responsibility for a child not biologically his, and that he thereafter raised Anita as his own to adulthood, a position she says is inconsistent with any late disavowal of parental responsibility for her. 7.She avers that the parties jointly resolved to develop the First Property, comprising approximately 50 by 100 feet at what is now Royal Close Court, Thiongo Drive, [Particulars Withheld] Estate, Machakos County (Land Reference No. 12715/5490), as their matrimonial home. Having reviewed Minute 3 of the Utabibu Syokimau IV Housing Scheme meeting of 14th September 2004, annexed to the Reply as “INK-4”, she now corrects her Supporting Affidavit to state that the bare land was purchased for Kshs 134,000, and not Kshs 150,000 as earlier deposed. She maintains, notwithstanding the Respondent's sole acquisition of the land, that its development was financed jointly out of the parties' consolidated salaries, overtime, dividends and Society borrowings, as reflected in the Society statement produced as annexure “EWG-2”, and observes that the Respondent has not produced his own payslips to substantiate his claim of disproportionate contribution. 8.As to the Second Property, an approximately quarter-acre parcel at Kantafu, Ruai, said to have been acquired around 2016–2017, the Applicant maintains, in her Supplementary Affidavit, that it was funded from monies she remitted to the Respondent while resident and working in Ireland. She annexes as “EWN-1” copies of mobile money transfer confirmations for the year 2017, addressed to recipients she identifies as the Respondent, ,cumulatively totalling approximately Kshs 536,474.62, and contends that she would not have made such remittances had she truly abandoned the family as alleged. She avers that she entrusted the Respondent, as the Kikuyu customary head of the family, to hold and register the resulting property, and disputes his entitlement now to disclaim her interest in it. 9.She denies unilaterally abandoning the matrimonial home for Ireland in 2015, averring that the relocation was a collective family decision, supported by the family including the Respondent, made with a view to the family's eventual relocation to the United Kingdom for the children's education and upbringing. She further avers that the family continued to holiday together, including in Mombasa in December 2017, and that it was only upon a family visit in March 2018 that she discovered the Respondent had left the matrimonial home for another woman, taking the younger children and, she says, her personal documents with him precipitating her filing of Divorce Cause No. 18 of 2018 and an associated children's cause at Mavoko. 10.She denies holding Irish citizenship and avers that she is a Kenyan citizen who fully relocated back to Kenya in 2023, and has, together with AWN (until Anita's recent departure to pursue postgraduate studies in the United Kingdom), continuously occupied the First Property since. She denies that the property has depreciated or been left unmaintained, stating that only a chicken coop and store, not the main house, were destroyed by an electrical fire some two to three years ago, and that she has borne the cost of repairs. 11.She avers, further, that the Respondent, without her consent and without any order of the Court, has sought to evict her and force a sale of the First Property, and issued a notice of intended eviction and forced sale in respect of the First Property on 15th December 2024, which lapsed on 31st January 2025. She avers that unless restrained, she stands to suffer irreparable harm and loss, incapable of adequate compensation in damages, through the loss of her matrimonial home and her statutorily protected matrimonial interest in both properties. The Respondent's case 12.The Respondent, in his Replying Affidavit sworn 5th March 2025, does not dispute the fact of the marriage or its dissolution, but disputes materially the Applicant's account of the parties' courtship, the acquisition of the First Property, and the extent of her contribution to both properties. 13.He deposes that he was formally employed by Med-X Kenya from 3rd October 2001 to 8th December 2002, and thereafter took up a locum, and later substantive, appointment at the Aga Khan Hospital, Nairobi, from 28th January 2003, initially in the Department of Internal Medicine and subsequently in Paediatrics and Child Health. He avers that his initial acquaintance with the Applicant, as a colleague, was purely professional; that he only “started taking interest” in her in December 2004; and that formal courtship did not begin until mid-2005, a period of less than one year before the wedding on 3rd December 2005, contrary to what he characterises as the Applicant's suggestion of a three-year courtship. 14.He avers that he joined the Utabibu Co-operative Savings and Credit Society in 2003, before he began courting the Applicant, and that he purchased the First Property (then Land Reference No. 12715/471/15, later re-referenced as 12715/5490 following a 2007–2008 plot-reallocation exercise among Society members) in March 2004, through the Society, from Homeward Agencies Limited, in his own name and with his own resources ,a fact he says the Applicant has previously admitted, both in inter-advocate correspondence and in her own Supporting Affidavit. He avers the Applicant maintained separate rented accommodation at [Particulars Withheld] Estate, Pangani, until the parties married in December 2005, when she and Anita moved into his Thome residence; that the parties only moved onto the Syokimau land itself in 2009, titled issued on 13th November 2008, erecting a temporary mabati/plywood structure; that the permanent house became habitable only in 2010–2011. 15.He admits the Applicant made “some contribution” to the development of the First Property but maintains it was minimal relative to his own, financed substantially through his own Utabibu Sacco borrowings, and denies that the parties ever operated joint bank accounts. He disputes the recent valuation report the Applicant relies on (“EWG-4”) as undervalued and self-serving, and proposes that the property be independently and freshly valued by a qualified valuer. 16.As to the breakdown of the marriage, the Respondent avers that the Applicant relocated to Ireland in 2015 “in search of greener pastures”, leaving the children in his care, and that it was only upon her filing of Divorce Cause No. 18 of 2018 that the relationship became acrimonious, prompting him to rent alternative accommodation near the children's school; he denies “abandoning” the matrimonial home in the sense alleged, and denies carrying away the Applicant's documents, pointing to the Applicant's own pleadings in the divorce cause indicating her documents “would be provided at a later date” (exhibit “INK-7”). He exhibits the judgment in Divorce Cause No. 18 of 2018, delivered 28th September 2020, and the subsequent certificate of decree absolute, by which the Chief Magistrate's Court at Mavoko dissolved the marriage on account of the Applicant's (there, the Petitioner's) cruelty and the attendant irreconcilable differences, following the Applicant's withdrawal of her own petition and the unopposed hearing of the Respondent's cross-petition. 17.He denies that the First Property has been maintained or renovated by the Applicant since 2018, averring instead that it has depreciated and that a fire, some two to three years prior to the swearing of his affidavit, destroyed unspecified structures and furniture of unknown value. He avers that he has, since 2018, single-handedly borne rent and other costs for himself and the children without contribution from the Applicant, and denies receiving money from her in 2016–2017, a period in respect of which he says the parties were already separated, a denial now controverted, at least in part, by the mobile money transfer records the Applicant has since exhibited in her Supplementary Affidavit as “EWN-1”. 18.He denies that any properties acquired after 2015, including the Second Property at Kantafu, were funded by the Applicant, averring that he purchased them solely with his own resources and registered them in his own name in the lawful exercise of his proprietary rights, and questions why, if the Applicant had contributed to their purchase, she did not at the time take steps to be registered as a co-owner. He avers that the Applicant, having acquired Irish citizenship, does not ordinarily reside in Kenya, spending approximately three months of the year in the country, and puts her to strict proof of this by production of her Kenyan and Irish passports. He states he has attempted, for the past three years, personally and through advocates, to resolve the question of the parties' respective contributions, but that the Applicant has been reluctant to engage, and reiterates his own willingness to participate in mediation. He proposes, in the alternative to sale, that the First Property be let out pending determination, with proceeds applied to the children's education or held in a joint account, and states that he has been denied access to the property despite request. 19.This ruling was initially scheduled for 28/05/2026 but due to exigencies of work, it was not ready. It was therefore deferred to 3rd June 2026. However, when this court had retired to write the ruling, it came to its notice that the application and indeed the Originating Summons had been brought out of time without leave the reason being that whereas Rule 5(2) of the Matrimonial property Rules 22 requires that this application be filed within 12 months from the date on which the decree absolute was given, the Originating Summons and the application herein were filed almost 6 years later. The above fact was brought to the attention of Counsel for the Applicant and the ruling was arrested but no effort was made to regularise the position. 20.In the premises, the application and the originating summons are time barred under Rule 5 (2) of the Matrimonial Property Rules 2022, the same are struck out with costs to the Respondent.Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026.E.N.MAINAJUDGEIn the presence of:Mr. Odhiambo for the plaintiffMs Ndirangu for the RespondentMiriam - Court Assistant/Interpreter