https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9499

JWG v PMM (Matrimonial Cause E036 of 2020) [2026] KEHC 9499 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9499 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Matrimonial Cause E036 of 2020 HK Chemitei, J July 2, 2026 Between JWG Petitioner and PMM Respondent Judgment 1.The Petitioner’s Amended Originating summons dated 15th January 2021 prays for the following orders:(a)A declaration that the immovable listed properties namely plot number 466 being a subdivision of LR No. 8469/4 registered in the name of Mwihike Farmers Ltd and plot number 478 being a subdivision of LR No. 8469/10 registered in the name of Mwihike Farmers Ltd acquired and developed by the Applicant and Respondent during marriage are jointly owned by them.(b)A declaration do issue that the Respondent holds plot number 466 on LR No. 8469/4 and plot number 478 on LR No. 8469/10 registered solely in his name above in trust for himself and the Applicant.(c)That the Respondent be restrained from selling alienating encumbering or in any other manner disposing the suit property listed in (1) above pending the hearing and conclusion of the suit.(d)The Court be pleased to issue a declaration that the said properties are jointly owned by the parties and the same be sold and or divided as follows:(i)Plot number 478 on LR No. 8469/10 to the Respondent.(ii)Plot number 466 on LR No. 8469 to the Applicant.(e)That the Respondent to meet the costs of the application. 2.The matter proceeded by way of oral evidence where the Applicant called one witness apart from herself and the Respondent testified and did not call any witness. 3.Felista Wanjiru Warukere testified on behalf of the Applicant where she narrated how she worked in the Southern Sudan together with the Respondent. 4.She said that they were operating a dollar account and would send funds to the Applicant. She said that her husband worked with her in southern Sudan as well. 5.The witness however did not produce any evidence of the said dollar account or any evidence of her business she claimed they operated in the said country. 6.The Applicant on the other hand testified that she married the Respondent under the tenets of Kikuyu customary law in 2007 and divorced in June 2021. 7.She admitted that the two properties were purchased by the Respondent before their marriage. She gave chronology of how the same were developed during coverture. She went ahead and produced evidence including her pay slips which showed some loan deduction. 8.She further stated that she developed the said properties when the Respondent was working in Southern Sudan. As a teacher she was able to secure loans Courtesy of her salary and other businesses. 9.It is her case therefore that the two properties be split into two as she had proved her contribution. 10.The Respondent on his part testified that he purchased the properties prior to marrying the Applicant. The Respondent produced some Mpesa statements which shows the money he sent to the Applicant while doing business in Southern Sudan and which were used to develop the residential units in the said properties. 11.The Respondent further testified that he had a matatu business which was operated by the Applicant while he was out of the country. 12.It is his case therefore that the said two properties were solely his and consequently the Applicant had not contributed much. 13.The Court thereafter directed the parties to file written submissions which they complied. 14.The Applicant identified three issues, namely, whether she had made any monetary contribution and improvement of the properties and therefore entitled to equal share; whether she made improvement including its management and doing domestic work and child care inter alia.; and whether she acquired a beneficial interest. 15.The Applicant submitted that she developed the said properties by doing contributions including a sum of Kshs. 700,000 from her property agent and a further sum of Kshs 4 million by way of loans which she was still servicing. 16.On the second issue she said that she contributed by being a homemaker and taking care of their only child who was autistic. 17.As a result of this contribution, she had acquired a beneficial interest in the said properties. 18.The Applicant relied on many authorities including JOO V MBO & 2 Others (Petition Number 11 OF 2020 (2023) KESC 4 (KLR). 19.The Respondent on his part submitted among others the issues including whether the properties in question constituted matrimonial property. 20.The Respondent submitted that the same did not since he purchased them before marrying the Applicant. He relied on Section 5 of the Matrimonial Property Act. 21.The Respondent submitted that the Applicant failed to prove her case as she failed to attend Court and prove the same. 22.Consequently, he submitted that the Applicant was not entitled to the share of any of the properties or at all. Analysis And Determination 23.Having gone through the entire proceedings and submissions it is clear that the issue for determination is whether the Applicant is entitled to the two assets by virtue of marriage and development of the same. 24.Section 6 of the Matrimonial Property Act defines matrimonial property as hereunder:“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.” 25.There is no doubt that the two assets were purchased by the Applicant before their marriage despite being registered in the name of Mwihike Farmers Ltd. 26.The question therefore is whether the Applicant contributed towards its development and therefore gained a beneficial interest. 27.It appears to me that the Respondent for some years went to Southern Sudan to carry out some business as clearly admitted by him and PW1. While at it the Applicant was in Kenya and carrying on her teaching career. 28.There is evidence contrary to the Respondent’s submissions that she did prove her case. The Applicant produced some loan agreements as well as her pay slip demonstrating that she took a loan facility. 29.The above was not rebutted by the Respondent. As at the time of testifying the loan was still being deducted. 30.There is no evidence to suggest that the loan went into developing something else or towards making any other payments. 31.The Respondent did not dispute the fact that the two properties were not developed while he was in Southern Sudan or thereafter. 32.The matatu business although later failed in my view went into developing the property. It must have been operated by the Applicant while the Respondent was away in Southern Sudan. 33.In the premises I am satisfied that the property was jointly developed during coverture. 34.The Respondent strongly submitted and relied on Section 5 of the Matrimonial Property Act which states:“Subject to section 6, the interest of any person in any immovable or movable property acquired or inherited before marriage shall not form part of the matrimonial property.” 35.Whereas this could be true, the Applicant contributed towards its development as stated above. The bills of quantities, the agreements entered by the Applicant for instance with one Charles Kinuthia Gitau, the loan from Muranga Teachers Sacco, Mentor Sacco Society Limited among others in my view buttresses the Applicant’s case. 36.I think the provisions of Section 5 would suffice if the Applicant did not put any effort in the properties acquired by the Respondent before marriage. The case at hand however and as stated above clearly portrays her contribution in their development. 37.It is therefore untrue as submitted by the Respondent that the Applicant did not prove her case or produce any evidence supporting her argument on developing the properties. 38.This beneficial interest was well spelt IN JOOV MBO & 2 Others (petition 11 OF 2020 (2023) KESC 4 KLR as hereunder;“In agreeing with the above decisions, we must note that, in a marriage, the general assumption is that both spouses share everything, and on the face of it, both parties contribute towards the home or family, in one way or another, to whichever extent, however big or small. Again, and further to this, both spouses may also work and earn income, which inevitably, at most instances, always ends up being spent on the family unit. It may be the whole income, or a substantial part of it, but ultimately, a percentage of it goes into the family. This is the essence of section 14 of the Matrimonial Property Act, 2013.” 39.On whether the Applicant contributed non monetarily, the Applicant clearly explained how she took care of the child who was autistic and that the Respondent did not make any meaningful contribution towards her schooling. 40.In the premises I do find that the Applicant has proved that she acquired a beneficial interest in the property and in terms of division she is entitled to a share thereof. 41.In my view and taking totality of the evidence before me I find that this is a case where the assets are worth sharing in the middle or on 50:50 basis. I find that although the Respondent truly purchased the same before marriage the Applicant has made substantial contribution towards their developments. 42.In the premises they shall share equally and in the event of any disagreement the same can be valued and sold and the proceeds shared out equally. 43.The Applicant had suggested a mode of sharing in her amended summons but at this level without any evidence of value it becomes difficult to issue such prayers. 44.The Amended Summons is allowed as follows:(a)A declaration is hereby issued that the two properties namely LR No. 466 being a subdivision of LR No. 8469/4 and plot number 478 being a subdivision of LR No. 8469/10 are matrimonial properties and jointly owned by the Applicant and the Respondent.(b)The Applicant and the Respondent shall share the two above properties equally that is on a 50:50 basis.(c)The two properties shall be valued if the parties are unable to agree on how to share the same equally and they be sold and the proceeds shared out equally between the two.(d)The above (c) order shall be carried out within 90 days from the date herein and in the event of sale a qualified and a registered Valuer shall carry out the exercise whose costs shall be met jointly by the Applicant and the Respondent.(e)In the event of sale, the parties shall appoint a registered and Licenced Auctioneer to carry out the exercise and in default the Deputy Registrar of this Court shall be at liberty to appoint one and the Applicant and the Respondent shall meet his costs equally.(f)Costs in the cause. DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 2ND DAY OF JULY 2026.H.K. CHEMITEIJUDGE, FCIArb.