JLG v SKM (Matrimonial Cause E016 of 2022) [2026] KEHC 10442 (KLR) (10 July 2026) (Judgment)

JLG v SKM (Matrimonial Cause E016 of 2022) [2026] KEHC 10442 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10442 (KLR) Republic of Kenya In the High Court at Kiambu Matrimonial Cause E016 of 2022 A Mshila, J July 10, 2026 Between JLG Applicant and SKM Respondent Judgment 1.Before court is the Originating Summons dated 21st March, 2022 and brought under Section 17 of the Matrimonial Property Act 2013, Section 3A of the Civil Procedure Act, Order 37 Rules 8 & 9 of the Civil Procedure Rules and Section 93 of the Land Registration Act and all enabling provisions of the law. The Applicant sought for orders;-a.That a declaration do issue that the properties namely Juja/Kiaura Block xxxx (Green Castle)/ 60, Gakawa.Kahuruma Block 1/Ichuga/xxxx, Gakawa.Kahuruma Block 1/Ichuga/xxxx, piece of land situated at Muigai Inn along Thika Road registered in the name of Ground Plan Agencies in Green Valley Estate being Plot Number xxxx within LR no. xxxx/53 were acquired, improved, developed and maintained by the parties jointly.b.That this Honourable Court be pleased to order that the properties and the income aforesaid be settled in proportions aforesaid or as the court may order. 2.The Summons is premised on the grounds that the parties herein got married under the Kikuyu African Customary Law and thereafter the marriage was solemnized on 7/3/2002 but they have since divorced and that the Applicant contributed to the acquisition and development of the subject property which was acquired during the pendency of the marriage. 3.In her supporting affidavit JLG deposed that she got married to the Respondent under the Kikuyu Customary Law and thereafter the marriage was solemnized on 7/3/2002. Vide a decree absolute issued on 28/11/2018 the marriage was dissolved. She deposed that during the marriage, the parties jointly acquired and developed the property namely Juja/Kiaura Block xxxx([Particulars Withheld])60, Gakawa.Kahuruma Block 1/Ichuga/xxxx, Gakawa.Kahuruma Block 1/Ichuga/xxxx, piece of land situated at Muigai Inn along Thika Road registered in the name of Ground Plan Agencies in Green Valley Estate being plot Number xxxx within LR No. xxxx/53 were acquired, improved, developed and maintained by their joint efforts. She averred that Juja/Kiaura Block xxxx (Green Castle)/60 is registered in her name and that the same was developed by their joint efforts but the Respondent lives on the said property. Further, that she developed Gakawa.Kahuruma Block 1/Ichuga/xxxx which is registered in the name of the Respondent and that the Respondent resides therein. Her contention was that she contributed both directly and indirectly in the acquisition and development of the subject properties. 4.In opposition to the Summons herein, SKM filed his replying affidavit dated 13th April, 2022. He deposed that he solely acquired and developed Gakawa.Kahuruma Block 1/Ichuga/xxxx which was registered in his name on 7/12/2000 which was before the subsistence of their marriage hence does not form part of matrimonial property as such the Applicant was said to be a trespasser. Juja/Kiaura Block xxxx(Green Castle) /60 AND PLOT NO. xxxx situated along Muigai Inn along Thika Road and Share Certificate issued as LR xxxx/53 is one and the same plot with the share certificate for LR xxxx/53 being used to generate title for Juja/Kiaura Block xxxx (Green Castle)/60. The process of acquisition of Juja/Kiaura Block xxxx (Green Castle)/60 started in 2008 and a title was issued in the name of the Applicant on 21/11/2018 and not in the name of Ground Plan Agencies as alleged by the Applicant. Juja/Kiaura Block xxxx (Green Castle)/60 was registered in favour of the Applicant and the same was acquired from the proceeds of sale of motor vehicle registration Number KAL 350P registered in his name for Kshs. 330,000/= which amount was deposited in the Applicant’s bank account which monies the Applicant used to purchase Juja/Kiaura Block xxxx (Green Castle)/60 where he has been residing. He stated that the Applicant did not contribute to the acquisition and development of Juja/Kiaura Block xxxx (Green Castle)/60 as she left the matrimonial home in 2014 and relocated to Naivasha, Panda Estate a property that she has left out as their matrimonial property. He denied ownership of Gakawa.Kahuruma Block 1/Ichunga/xxxx as pleaded by the Applicant. By the time Juja/Kiaura Block xxxx (Green Castle)/60 was acquired the Applicant was a student as such could not have contributed towards its acquisition. 5.In her Further affidavit dated 15th July, 2022, the Applicant contends she eloped with the Respondent in xxxx97 hence she had to drop out from university. Between xxxx97 and 2005 she operated a household supplies shop in Nanyuki and the income from the said shop was used to support her family. She was re-admitted in 2002 and her education was financed by HELB and not by the Respondent as alleged. She averred that she immensely contributed directly and indirectly in the acquisition and development of the matrimonial properties. She stated that she is the one who purchased motor vehicle registration Number KAL 350P from the proceeds of her commission from the sale of Unga House as well as motor vehicle KAS xxxx and KAS xxxx. She reiterated that Juja/Kiaura Block xxxx (Green Castle)/60 was developed by their joint efforts. She could not get the documents for the Juja Farm Property that was acquired during the subsistence of the marriage. Applicant’s Evidence 6.During the hearing, the Applicant herein JLG (PW1) adopted her supporting and further affidavit as her evidence in chief. She got married to the Respondent in 2002 but they started living together in xxxx97. 7.In cross examination she stated that she enrolled in university in xxxx97 but discontinued her studies and went back in 2001 and managed to clear the studies in 2005. In 2002 she was working full time as a teacher. The payslips produced were from 2007 to 2008 and there was nothing to show that she was employed from xxxx97 to 2007. The parcel xxxx was acquired in 2000 before their marriage was solemnized. Respondents Evidence 8.SKM (DW1) adopted his replying affidavit as his evidence in chief. The Gakawa property was acquired in 2000 and he got married to the Applicant in 2002. Before 2002 he was in another marriage with Miriam Wandia. He constructed a permanent home on the property in 2001 before being married to the Applicant. For the Juja property, the same was acquired in 2008 as he sold his motor vehicle KAL 350P for Kshs. 300,000/= and the proceeds were deposited in the Applicant’s account and the proceeds were used to buy the plot. He stated that the Applicant was a student and was not working for gain as such she did not contribute to acquisition or construction. 9.In cross examination he stated that he was cohabiting with the Applicant in Nyeri in xxxx97 to 2005. The property purchased was Gakawa 1151 and not xxxx. He was married before his previous marriage was dissolved in xxxx99. He stated that Gakawa xxxx and Gakawa 1151 are two different parcels and not a sub-division. Further, that a motor vehicle was sold and the proceeds were used to buy the Juja property at Kshs. 295,000/=. The title is in the name of the Applicant but she did not contribute. He denied that there is a Clay Works property. The Green Valley property was not jointly owned. 10.The parties were directed to file and exchange written submissions. Hereunder is a summary of the parties rival submissions. Applicant’s Submissions 11.The Applicant submits that she started cohabiting with the Respondent in xxxx97 and that as much as the property Gakawa.Kahuruma Block 1 Ichunga/1151 was acquired in 2000 and their marriage was solemnized in 2002 the same is matrimonial property as the Applicant and Respondent were already living as husband and wife prior to the solemnization in 2002. The parcel xxxx should be shared equally at 50% or be held in trust for the children. The Applicant submitted that she contributed both directly and directly as she was operating their general shop, raising the children and developing the property while the Respondent was working away from home and only came during the weekends. In any case, the Applicant was said to have acquired a beneficial interest by virtue of significantly improving the property. Juja/Kiaura Block xxxx (Green Castle)/60 is registered in the name of the Applicant and a title deed was issued in her name in 2018 and that she acquired the property after university and upon employment even as a County Executive Committee Lands Nakuru as such the same solely belongs to the Applicant. The court was urged to find that Gakawa.Kahuruma Block 1 Ichunga/xxxx is being held in trust by the Respondent for herself and the children. The court was urged to find that the same is matrimonial and that the Applicant has 50% beneficial interest for improving and maintaining the property when the defendant was away working. Reliance was placed in the case of PWK vs JKG (2015) KECA 535 (KLR). Juja /Kiaura Block xxxx/60 was said to have been acquired 100% by the Applicant for the benefit of their children. The Applicant submitted that LR NO. xxxx/53 (Green Valley Plot No.. xxxx) (Ground Pal Agencies Share Certificate) was acquired by the Applicant and the Respondent jointly. The property [Particulars Withheld]should be sold and the proceeds be shared equally as the same was purchased and developed in 2008 when the Applicant was employed at Royal Valuers Ltd Agency. The property Green Valley was developed by joint efforts where they had rentals as such the same should be sold and the proceeds shared equally. The narrative that the Indenture created from agricultural holdings over land portion Number xxxx (0.210Ha), LR No. 57/xxxx Original Number xxxx/xxxx at Clayworks to the Respondent in 2009 is not in existence was said to be false as there is proof provided by the Applicant of ownership by the Respondent over the property. The same applies to the Green Valley property where a share certificate was produced. Reliance was placed in the case of TKM vs SMW (2020) KECA 684 (KLR). The court was urged to order that the properties acquired jointly by the parties be sold and the proceeds be shared equally. Respondent’s Submissions 12.The Respondent submits that he acquired property being Gakawa.Kahuruma Block 1/Ichuga/xxxx in 2000 and subsequently developed the property as such the Applicant cannot claim legal and beneficial rights as the same does not form part of matrimonial property. No evidence was produced to prove contribution towards its improvement. Reliance was placed in the case of TMV vs FMC (2018) eKLR. The Respondent submitted that in respect of the [Particulars Withheld]property he single-handedly acquired the property and the Applicant failed to produce evidence to demonstrate contribution towards its acquisition or development. Reliance was placed in the case of Kimani v Njoroge (xxxx95) LLR 1169 HCK. The court was urged to find that [Particulars Withheld]property does not form part of matrimonial property and that the properties herein were solely acquired by the Respondent. Issues For Determination 13.Having considered the Applicant’s Summons, the affidavits in support thereof and the Respondent’s replying affidavit as well as the parties written submissions, the issues arising for determination are-i.Whether the properties Gakawa.Kahuruma Block 1/Ichuga/xxxx and Juja/Kiaura Block xxxx (Green Castle)/60 form part of matrimonial properties;ii.Whether the Applicant contributed and if so what share is the Applicant entitled to. Analysis Whether the properties Gakawa.Kahuruma Block 1/Ichuga/xxxx and Juja/Kiaura Block xxxx (Green Castle)/60 form part of matrimonial properties; 14.The Applicant herein urges the court to find that the properties Gakawa.Kahuruma Block 1/Ichuga/xxxx and Juja/Kiaura Block xxxx (Green Castle) constitute matrimonial properties. 15.The applicable law is founder under the provisions of Section 6 of the Matrimonial Property Act defines matrimonial property as:(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. 16.Reference is made to the case of T.M.V. vs F.M.C (2018) eKLR where 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.” 17.It was the parties’ herein testimony that they started cohabiting in xxxx97 and subsequently their marriage was solemnized in 2002 and that the Applicant left in 2014. One of their properties being Gakawa.Kahuruma Block 1/Ichuga/xxxx was acquired in the year 2000 and the other property known as Juja/Kiaura Block xxxx (Green Castle)/60 was acquired in 2008. 18.The Respondent argued that the Gakawa property does not form part of matrimonial property as the same was acquired in 2000. The Respondent confirms that he was cohabiting with the Applicant in Nyeri in xxxx97 to 2005. This union was then solemnized in 2002 and that the Applicant resided together until sometime in 2014 when the Applicant is said to have left the matrimonial home; It is not disputed that the property known as Gakawa.Kahuruma Block 1/Ichuga/xxxx was acquired in the year 2000 and the property known as Juja/Kiaura Block xxxx (Green Castle)/60 was acquired in 2008. 19.The parties started cohabiting together from xxxx97 and for all intent and purposes they were living together as husband and wife as such the said properties form part of matrimonial properties for purposes of this proceedings. 20.After having carefully considered the evidence adduced by both parties this Court is satisfied that the two contentious properties were both acquired between the years xxxx97 to 2014 which was during the pendency of the marriage and therefore constitute matrimonial properties. Whether the Applicant contributed and if so what share is the Applicant entitled to. 21.The Applicant also requested the Court to divide the properties herein stating that she solely contributed towards their acquisition and development. 22.From the evidence on record, Gakawa.Kahuruma Block 1/Ichuga/xxxx is registered in the name of the Respondent while Juja/Kiaura Block xxxx ( Green Castle)/60 is registered in the name of the Applicant. 23.Section 14(a) of the Matrimonial Property Act creates a presumption of trust where property is registered in the name of one spouse. The provision states;“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….” 24.Nevertheless, ownership of matrimonial property vests in the spouses according to their contribution. 25.Section 7 of the Matrimonial Property Act is clear in its terms that:“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.” 26.Refer to the case of H.N.M vs F.T.S (2021) eKLR where Gikonyo J observed that ownership of matrimonial property vests in accordance with the contribution of the spouse towards its acquisition or development of the property. 27.Subsequently, contribution towards the acquisition of matrimonial property is defined under Section 2 of the Matrimonial Property Act, 2013 in the following terms;-In this Act, unless the context otherwise requires—“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. 28.The Applicant seeks that the court shares parcel Gakawa.Kahuruma Block 1 Ichunga/xxxx equally at 50% or the property be held in trust for the children with the Juja/Kiaura Block xxxx (Green Castle)/60 property solely belonging to her for the benefit of their children. Juja/Kiaura Block xxxx (Green Castle)/60, LR NO. xxxx/53 (Green Valley Plot No.. xxxx) (Ground Pal Agencies Share Certificate) and the Indenture created from agricultural holdings over land portion Number xxxx (0.210HA), LR NO. 57/xxxx Original Number xxxx/xxxx at Clayworks should be sold and the proceeds shared equally between the parties. 29.The Applicant alleged that she operated a shop from xxxx97 to 2005 and the income obtained was used to take care of the family as the Respondent was away from home working. She studied in the university and thereafter was in gainful employment. It was her contention that the properties should be shared equally as she contributed directly and indirectly. 30.The Respondent on the other hand, denied that the Applicant contributed any money as she was a student. He acquired the Gakawa property in 2000 before their marriage. The Juja property was acquired from the sale of his motor vehicle KAL 350P. He denied owning any property jointly with the Applicant. 31.Distribution of matrimonial properties is based on each party’s contribution both monetary and non-monetary. 32.In the case of BWK vs SMM (2024) KEHC 10489 (KLR) the High Court underscored that division of matrimonial property depends on the contribution of each spouse. The court noted that non-monetary contributions are recognized and must be proven to determine the share each spouse is entitled to. 33.Further, in the case of PNN vs ZWN (2017) eKLR the Court of Appeal held that matrimonial property should be distributed according to the proven contribution of each spouse, whether monetary or non-monetary. 34.In the case herein, each party has produced various documents to prove their contribution towards the acquisition and development of the subject properties. 35.From the documentary evidence it is noted that the Gakawa xxxx is registered in the name of the Respondent and he produced the title for Gakawa xxxx and some hardware receipts. Considering all the facts and circumstances set forth in evidence it is not disputed that the Applicant had dropped out of University and was unemployed when the Gakawa xxxx property was acquired. Even though she failed to produce evidence to demonstrate her direct contributions towards its acquisition or development this Court is satisfied that she discharged the burden of proof that she was a wife to the Respondent and contributed indirectly to its acquisition; Her evidence on indirect or non- monetary contribution was that she operated their general shop which was family business and that she used the income to take care and raise the children of the family. These types of non-monetary contributions have been recognized by courts in legates of decisions and this court reiterates that it is satisfied that the Applicant discharged the burden of proof on this issue and finds that she is entitled to a Thirty (30) per cent share of the Gakawa xxxx property. 36.The Applicant produced title for Juja/Kiaura Block xxxx (Green Castle)/60 which is registered in her name. The transfer agreement dated 32/3/2008 is also in the name of the Applicant for the property being Juja/Kiaura Block xxxx (Green Castle)/60. The Respondent submitted that with respect to this [Particulars Withheld]property he single-handedly acquired the property and it was financed by the proceeds from the sale of motor vehicle registration Number KAL 350P for Kshs. 330,000/=. He produced the Sale Agreement and the fund transfer form dated 4/2/2008 showing that the said funds were transferred to the Applicant. 37.When this property was acquired the Applicant had stabilized and had completed her University education and was employable but apart from production of the title registered in her name she failed to produce evidence to demonstrate her direct contributions towards its acquisition or development. Nevertheless, this court will consider her prior evidence on non-monetary contributions as a wife and find her share entitlement to be Thirty (30) per cent. Findings And Determinations 38.For the forgoing reasons this Court makes the following findings and determinations;i.The application is found to be with merit and it is hereby allowed as follows. It is hereby declared that the properties, Gakawa.Kahuruma Block 1/Ichuga/xxxx and Juja/Kiaura Block xxxx (Green Castle)/60 were both acquired during the pendency of the marriage and constitute matrimonial property.ii.It is hereby declared that the Applicant is entitled to rights to the property Gakawa.Kahuruma Block 1/Ichuga/xxxx on a 30:70 ratio. The above stated property be settled and/or divided and/or sold and the proceeds of the said division and/or sale be shared to each party on the basis of 30:70 ratio.iii.It is hereby declared that the Applicant is entitled to rights to the property known as Juja/Kiaura Block xxxx (Green Castle)/60 on a 30:70 ratio. The above stated property be settled and/or divided and/or sold and the proceeds of the said division and/or sale be shared to each party on the basis of 30:70 ratio.iv.This being a family matter each party to bear their own costs.Orders Accordingly DATED SIGNED AND DELIVERED VIA TEAMS AT VOI THIS 10TH DAY OF JULY, 2026A.MSHILAJUDGEIn the presence of;Sanja/Trizah – Court AssistantsUp – loaded on the CTS