[2025] KEHC 3582 (KLR)

Lammers v Muya (Originating Summons E009 of 2022) [2025] KEHC 3582 (KLR) (17 March 2025) (Judgment)

Neutral citation: [2025] KEHC 3582 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Originating Summons E009 of 2022

CJ Kendagor, J

March 17, 2025

IN THE MATTER OF DIVISION OF MATRIMONIAL PROPERTY

AND

IN THE MATTER OF THE MATRIMONIAL PROPERTY ACT, 2013

AND

IN THE MATTER OF THE LAND REGISTRATION ACT

Between

Thomas Olaf Lammers

Applicant

and

Caroline Mwihaki Muya

Respondent

Judgment

1. The Applicant filed an Originating Summons (O.S.) dated 7th February, 2022 against the Respondent. The O.S. is supported by the grounds stated therein and by the Affidavit of the same date sworn by the Applicant. The Applicant also filed witness statements and a supplementary affidavit sworn on 12th May, 2022. The O.S. seeks the following orders:a.That the Honourable Court declare that the matrimonial property being Mumwe Gardens Runda House No. 23, L.F. No. 14274/39/39 (the property) was acquired by the sole funds and efforts of the plaintiff during their marriage but is owned jointly by the plaintiff and defendant.b.That the said matrimonial property was acquired through the sole contribution of the plaintiff.c.That an order be issued declaring that 50% or such other or higher proportion of the property aforesaid is held by the defendant in trust and for the beneficial interest of the plaintiff.d.That the property aforesaid be sold off and the net proceeds be shared equally between the plaintiff and the defendant or settled in proportions aforesaid or as the Court may order.e.That an order be granted ordering the defendant to furnish the plaintiff’s advocates herein with the original Title Deed for Mumwe Gardens Runda House No.23, L.T. No.14274/39/39 for safe keeping.f.That an order be granted allowing the plaintiff immediate access to the matrimonial property being Mumwe Gardens Runda House No.23, L.R. No.14274/39/39 for purposes of collecting his personal belongings.g.That the cost of the suit be provided for.

2. The Respondent opposed the O.S. and filed a Replying Affidavit sworn on 7th February, 2023 and a witness statement dated 13th March, 2023.

3. The Parties cohabited for seventeen (17) years and have one child together—a son who is now an adult. On 9th April 2020, the Respondent filed a Petition in the Chief Magistrates Court seeking divorce in Divorce Cause No. 382 of 2020. The learned magistrate who heard the case delivered a judgment on 1st November, 2021 finding that a valid marriage existed between the Parties and proceeded to allow the Petition for divorce. A decree nisi was issued and subsequently made absolute.

4. During the subsistence of the marriage, the parties resided at Mumwe Gardens Runda House No. 23, L.R. No. 14274/39/39 (the property). This case concerns the aforementioned property, which both parties recognise as their matrimonial home and is registered in their names. However, each party claims to have exclusively purchased it to the exclusion of the other, and the current determination addresses the issue of distribution.

5. The matter was heard through viva voce evidence, and the parties filed their submissions at the close of the hearing.

Applicant’s case 6. The Applicant stated that he does not own any other property in Kenya or Germany. He asserted that he entirely financed the acquisition of the subject property using funds sourced from his personal savings, money from his company, Thola Glass Limited, of which the Respondent was a director and shareholder, and funds from a business that was operational in Germany – GF Glass Factory GmbH. He asserted that he registered the Respondent as a joint owner solely in the interest of their son, who was a minor at the time. The Applicant contends that the Respondent did not contribute anything towards the property's purchase, improvement, or maintenance. He maintained that the money referred to by the Respondent as having been sent to his company was intended to buy materials for supplies for clients in Kenya.

7. The Applicant stated the purchase price as Kshs.45,179,140/=, which includes legal fees and an additional Kshs.500,000/= for miscellaneous disbursements. He also stated that he had improved the property by installing a wooden garden house that cost €24,800 Euros and a solar water heating system for the swimming pool that cost €28,000 Euros.

8. He gave the breakdown of payments to the tune of Kshs.45,551,140/- as follows;i.Deposit of Kshs.4,200,000/- directly to vendor on 18th June and 25th June, 2013;ii.Sum of Kshs.25,000,000/- paid to TripleOK Law, being proceeds he received from sale of his property L.R No. 12672/26 to A.L. and A.K.;iii.Sum of Kshs. 4,351,140/- in cash at TripleOK Law on 29th August, 2013;iv.Sum of Kshs. 12,000,000/- paid to TripleOK Law on 6th September, 2013 by I & M Bank following a charge to the bank of another Runda property L/R 12672/29, which he stated was later sold by public auction.

Respondent’s Case 9. The Respondent claimed that the acquisition of the property was her initiative and that she paid for it entirely after purchasing it from Venture Holdings Limited. She stated that the Applicant did not contribute financially and that his name was added to the title solely because he was her husband. She also asserted that following the purchase, she made numerous improvements to the house.

10. The Respondent indicated that her income stemmed from a business she operated prior to meeting the Applicant. She further stated that she was both the Managing Director and a shareholder of Tohla Glass, which she had incorporated with the Applicant. She mentioned that she was in charge of the company’s accounts and that some of the payments evidenced were funds used to purchase materials.

11. She challenged the Applicant’s assertion that the house was purchased with proceeds from the other Runda plot and stated that by the time I & M Bank was selling the Runda plot, the property in question had already been purchased. The Respondent maintained that the Appellant owned other properties that had not been included in the matrimonial property case, namely properties in Germany and Malindi, Kenya. However, she acknowledged that she did not contribute to the property in Germany, nor was the agreement she relied upon signed. The Respondent referenced the Nanyuki property mentioned by the Applicant and maintained that the proceeds from it were received in the Applicant’s presence and transferred to Germany. She acknowledged receiving a lump sum payment after Tohla Glass was wound up, following the sale of its assets, to which she had contributed.

12. According to the Respondent, the Applicant claimed reimbursement for the improvements made to the house, specifically for the construction of the wooden structure, amounting to Kshs.6,000,000/=. She also asserted that, in addition to purchasing house furnishings at Kshs.8,000,000/= she paid the service charge. Furthermore, she stated that the Applicant failed to provide for their child, which necessitated a custody case in court regarding the matter.

13. The Respondent stated the property’s value as Kshs.42,000,000/= and provided a breakdown of her payments for the property as follows:i.Kshs.4,200,000/= paid to the property developers in cashii.Kshs. 12,000,000/= in cash to property developersiii.Sum of Kshs.28,000,000/= paid in cash or RTGS in instalments until completion

Analysis and determination 14. The main issues arising for determination are;i.Whether the property herein amounts to matrimonial property;ii.What was each Party’s contribution towards the acquisition of the matrimonial property;iii.What share, if any, is each party entitled to?

Whether the subject property amounts to matrimonial property; 15. I am guided by Section 6 of the Matrimonial Property Act that defines matrimonial property as:a.the matrimonial home or homes;b.household goods and effects in the matrimonial home or homes; orc.any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.

16. Section 2 of the Matrimonial Property Act defines Matrimonial home to mean;“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”.

17. The marriage between the parties has been dissolved. Both parties agree that the property in question was their home, as they both occupied it and referred to it as such. Furthermore, they agree that the property was acquired during the course of their marriage. They registered the property in the name of the Applicant and the Respondent.

18. Therefore, this property in issue is classified as matrimonial property and regarded as a matrimonial home under the Matrimonial Property Act.

19. Sections 107(1), (2) and 109 of the Evidence Act are on the burden of proof. They provide as follows:107(1)Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.109. Proof of particular factThe burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

20. While the Respondent cited several other properties that she considered matrimonial property and which she asserted that the Applicant had failed to include, including specific locations in Malindi, Kenya, and Germany, the evidence currently presented is insufficient to substantiate this classification. Without the evidence, this Court cannot establish whether these properties meet the legal criteria for matrimonial property.

21. Both sides have also presented evidence mentioning other properties, including the Nanyuki Property and Runda L.R 12672/29 and 12672/26. These properties were disposed of, and the parties possess differing details regarding the funds involved. Concerning the Nanyuki property, the documentation presented in the divorce case indicates an acknowledgement that some of the funds were placed into a joint account. It is also important to note that the I & M loan account details in the documents presented indicate that it was a joint loan account in the names of both parties, along with the Thola Glass Account (owned by parties); no other documentation was availed on the registration of Plot 29. Although their descriptions of where the funds from the sale of these other properties vary, both were evidently involved in the sales process.

22. Thola Glass Enterprise has been wound up, and the parties have received their respective payments related to the company. It is important to note that they operated the company together, and the Respondent was actively involved in its management. Additionally, the German company is no longer in operation.

23. Regarding the subject property, both parties assert that they acquired it exclusively to the exclusion of the other. The Applicant retracted an earlier offer of a 50:50 share and instead asked the court to determine that the Respondent did not contribute to the property’s acquisition. The court must make a determination based on how both sides presented the case in their pleadings and during the hearing.

24. The sale agreement for the subject property was not provided. This court cannot establish the terms or determine the parties’ respective status concerning the purchase when the property was acquired.

25. The Applicant asserted that the sums he paid as part of the purchase price were derived from the sale of Runda plot 26 and plot 29. The statement of Accounts that the Applicant relies on is neither signed nor stamped by the firm from which it is purported to have originated, unlike the letter, which is duly signed and indicates the professional fees charged, the cross-examination raised doubt as to the authenticity of the two documents that bore different letterheads. The documentation relied upon does not provide evidence of the transfer of funds. I cannot ascertain with certainty that the proceeds from the property the applicant stated that he sold were used to purchase the subject property.

26. The Respondent’s documentation shows a deposit in her name made to Venture Holdings as a down payment, totalling a sum of Kshs.4. 2 million. The Respondent has also attached a receipt for Kshs.12,000,000/= which she stated was paid in cash, although the receipt shows that it was done via RTGS. There is evidence that she continued to cover the additional expenses for maintenance, service charges, and incidental costs after the purchase. She indicated that she had paid in cash for the remainder of the balance but did not produce any acknowledgements.

27. From the evidence, the parties in this matter are individuals of financial means. They collaborated in a successful business venture, and in addition to their joint enterprise, each party independently engaged in various other pursuits. The parties were not forthcoming regarding the origins of the funds used to purchase the subject property so that the court could determine the extent of their contributions. The sale agreement was not produced, and no bank accounts or evidence of financial transfers related to the purchase were submitted. Both parties assert that they made various monetary and non-monetary contributions toward acquiring the property. There is evidence that both of them incurred costs in the home improvements. The property is legally registered in both their names, but the specifics of their exact respective contributions remain unclear.

28. Section 14(b) of the Matrimonial Property Act provides that: -“Where matrimonial property is acquired during marriage –(b)in the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal”.

29. Without compelling evidence to suggest otherwise, I find that the parties intended to have equal shares in the matrimonial home.

30. Given the unique circumstances of this case, the Court finds that the contributions of both parties to the matrimonial home can be fairly assessed as equal, at a ratio of 50:50.

31. Orders were issued on 7th October, 2022 for the collection of the applicant’s personal belongings from the matrimonial home. As no evidence regarding the inventory of the items claimed to remain in the house has been provided, I will not issue any further orders concerning this issue.

32. I make the following orders;I.A Declaration is hereby issued that the property Mumwe Gardens Runda House No. 23, LR NO. 14274/39 is the parties’ matrimonial property and shall be equally shared.II.I direct that the property be valued within 60 days from today by a valuer appointed jointly by the Parties, or if they are unable to agree on a valuer, then by the Government Valuer in Nairobi.III.The agreement regarding the valuer must be made within 21 days from today. If not, either party may request a valuation by the government valuer.IV.The valuation will include the property’s developments/improvements on an as-is basis, and the valuation costs are to be met jointly.V.Parties are at liberty to buy each other out.VI.If the parties are unable to agree on a buyout within 30 days of receiving the valuation report, I direct that Mumwe Gardens Runda House No. 23, Title No. L.R. No. 14274/39, be sold by public auction. The proceeds from the sale will be divided equally between the parties, after deducting any incidental costs. Costs will be deducted from the share of any party who defaults on their contribution to the incidental costs related to valuation, sale, or rental income.VII.During this intervening period, the Parties may reach an agreement regarding the issue of rental income (pending the aforementioned orders); their agreement shall be submitted to the court along with the indicated operation period.VIII.In the absence of an agreement regarding the rental income, it shall be deposited into a joint account in the names of the advocates on record and shared equally between the parties.

44. I make no orders as to costs.

45. Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 17TH MARCH, 2025. …………………..……..C. KENDAGORJUDGEIn the presence of:Court Assistant: BerylMr. Kairu Advocate holding brief for Advocate Waithaka for the ApplicantNo attendance for respondent