Majani v Luvayo (Matrimonial Cause E001 of 2024) [2026] KEHC 11729 (KLR) (28 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **MATRIMONIAL PROPERTY CAUSE NO. E001 OF 2024** **IN THE MATTER OF THE MATRIMONIAL PROPERTY ACT, 2013** **BETWEEN** **LINET AYUMA MAJANI** ................................................................ **APPLICANT** **AND** **GILBERT LUVAYO** ................................................................... **RESPONDENT** **Coram: Before Justice R. Nyakundi** **Mr. Wanyundi for the Applicant** **Respondent in person** **JUDGEMENT** **A. INTRODUCTION** 1. By an Originating Summons dated 18th April 2024 and filed in this Court, brought under Order 37 Rule 11 of the Civil Procedure Rules, 2010 and Sections 2, 6, 7, 9, 12, 14 and 17 of the Matrimonial Property Act, 2013 the Applicant, Linet Ayuma Majani, moved this Court for the following orders: 2. *THAT this Honourable Court do declare that the Applicant is entitled to 50% or such other or higher proportion as this Court may deem fit to the following properties: i) Land Parcel NYANG'ORI/HAMISI/'B'1176; ii) Motor Vehicle Registration Number KAM 458F.* 3. *THAT costs be provided for.* 4. The Originating Summons is supported by the Affidavit of the Applicant sworn on 17th April 2024, together with the annextures thereto, and by her Witness Statement dated 6th December 2024 and filed on 6th February 2025, together with the Applicant's List and Bundle of Documents of even date. 5. The Respondent, Gilbert Luvayo, opposed the application by way of a document entitled *"Response to the Application in the Matter of Matrimonial Property"* filed on 30th May 2024. The Respondent did not file a replying affidavit, a witness statement, or a list or bundle of documents, and did not, at the hearing, tender any oral or documentary evidence. He elected to rely upon his said Response both as his pleading and as his submissions. 6. This judgment therefore falls to be delivered upon the Applicant's evidence, the Respondent's Response, the Applicant's Written Submissions filed on 7th May 2026, and the authorities cited. **B. THE APPLICANT'S CASE** 1. The Applicant's case, as deposed in her Supporting Affidavit and elaborated in her Witness Statement (which she adopted at the hearing as her evidence in chief), may be summarised as follows. 2. She and the Respondent were married in the year 2005 in a traditional/customary ceremony, which union was later solemnized through a church wedding in 2019. She produced a Marriage Certificate at page 1 of her bundle. The marriage therefore subsisted for a period of approximately nineteen (19) years. 3. The marriage was blessed with three children, namely Flavian Jumba, Grecy Jegugu and Iymara Vulemi, whose Birth Certificates appear at pages 2–4 of the bundle, and whom the parties, in her words, took care of "with no reservation." 4. Following a protracted period of misunderstandings, disagreements and disputes, the parties petitioned for divorce. A Decree Nisi was granted on 30th January 2024 by the Senior Principal Magistrate's Court at Hamisi (page 5 of the bundle), and the said Decree was subsequently made Absolute (page 6 of the bundle). On the state of the record, the Decree Absolute issued on 9th April 2024. 5. During the subsistence of the marriage, the Applicant avers, the parties acquired Land Parcel NYANG'ORI/HAMISI/'B'1176, upon which they constructed their matrimonial home, together with Motor Vehicle Registration Number KAM 458F. A copy of the title document and photographs of a motor vehicle bearing the said registration mark appear at pages 7–9 of the bundle. 6. The Applicant's central averment on contribution is contained at paragraph 6 of her Witness Statement. She states that, the parties being a couple, arrangements were made whereby she secured several loans from IG Sacco Limited towards the purchase of the said property, which was then registered in the Respondent's sole name upon the understanding that he was to hold the same in trust for herself and the children. Copies of her IG Sacco member loan statements appear at pages 10–18 of the bundle. 7. Beyond the said Sacco borrowings, she deposes that she took further credit from Kenya Credit Traders and from her bank in order to support the Respondent in meeting other financial obligations, and she relies on her payslips at pages 19–23 as evidence of the corresponding deductions. 8. She further deposes to: 9. Regular repairs and maintenance of the matrimonial house, evidenced by receipts at pages 24–27; 10. Payment of the children's school fees and household shopping, including in January of the year in which the suit was filed, when the Respondent declined to pay school fees for the two children Iymara Vulemi and Grecy Jegugu (pages 28–30); 11. Sole financial maintenance of the family between 2016 and 2017, at a time when the Respondent had stood as guarantor for colleagues who defaulted, with the consequence that his entire salary was attached in recovery. She relies on a letter addressed to the Director of Public Prosecutions at page 31; 12. Financial support of the family during the Respondent's interdiction by the Teachers Service Commission between 23rd August 2019 and 29th October 2020, when he was unable to cater for the family's needs; and she further states that during that interdiction she took a loan part of which she applied towards the Respondent's own school fees for his further education. The interdiction and reinstatement letters appear at pages 32–33; 13. Her role as a dedicated wife who supported the Respondent financially, emotionally and psychologically, and, as deposed at paragraph 9 of her Supporting Affidavit, her responsibility for looking after the home and the children, most of her free time having been spent as caregiver to the family. 14. On that basis she prays for a declaration that she is entitled to 50% or such higher proportion of the two suit properties as the Court may deem just **C. THE RESPONDENT'S CASE** 1. The Respondent's Response is short and may be set out in substance. He pleads: 2. *THAT the matters before the Court are of great importance and call for critical, insightful and in-depth consideration so as to reach a just conclusion;* 3. *THAT the listing of the land and the motor vehicle as property for consideration is erroneous and a misrepresentation of facts;* 4. *THAT he has never owned a motor vehicle, whether personally, jointly with other persons, or with family, and that the Applicant ought to have conducted due diligence rather than annex photographs of property of no interest to the application and thereby occasion anxiety to persons who are not parties to the suit;* 5. *THAT he is the absolute owner of Land Parcel NYANG'ORI/HAMISI/'B'1176, whose lost title deed is the subject of an active criminal investigation notwithstanding that a faint copy has been annexed to the application, and that the onus of rebuttal lies with the Applicant;* 6. *THAT upon the issuance of the order absolute in the divorce cause, the Applicant lost any qualification to make a property claim under Section 2 of the Act; that one of the key grounds of the divorce was desertion; that on those grounds, contribution as contemplated by Section 2 of the Act is defeated; and that the Applicant did not successfully challenge that ground, the Court having affirmed it.* 7. As already observed, the Respondent adduced no evidence in support of these assertions. He filed no affidavit, called no witness, and produced no document — not the record or decree of the divorce cause upon which his desertion argument depends, not the abstract of title, not any instrument of acquisition, and nothing touching upon the motor vehicle. **D. SUBMISSIONS** 1. Learned Counsel for the Applicant, M/s Wanyundi, Kuchio Tindi & Associates, filed comprehensive written submissions dated and filed on 7th May 2026. Counsel framed three issues: whether the suit properties constitute matrimonial property; whether the Applicant contributed to their acquisition; and whether she is entitled to 50% or a greater share. Counsel relied on Sections 6 and 7 of the Act and on a number of authorities, among them *M W K v C W N* [2014] KEHC 4739 (KLR), *Kivuitu v Kivuitu* (1991) 2 KAR 241, *Kamore v Kamore* (2000) 1 EA 81, *Gathiya Essa v Mohamed Alibhai Essa*, CA No. 141 of 1998, *Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others* [2023] KESC 106 (KLR), *L W K v S K G* [2024] KEHC 11212 (KLR), *G C R v C O O* [2025] KEHC 11953 (KLR), *Joseph Ombogi Ogentoto v Martha Bosibori Ogentoto*, SC Petition No. 11 of 2020, *I C v S S* [2024] KEHC 3316 (KLR), *Federation of Women Lawyers Kenya (FIDA-Kenya) v Attorney General; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae)* [2025] KECA 1588 (KLR), and the English decisions in *Miller v Miller* [2006] UKHL 24 and *White v White* [2001] 1 AC 596. 2. Counsel further submitted that the Respondent had expressly admitted before this Court that the suit properties are held in trust for the Applicant and the children, that facts admitted need not be proved, and that such admission is dispositive of the question of beneficial ownership. By way of supplementary prayers, Counsel proposed a mode of distribution comprising a professional valuation of both assets followed by either physical subdivision or monetary conversion, with 50% to the Applicant and 30% held collectively for the three children, the shares to be allocated as the Court deems just. 3. The Respondent, as stated, relied on his Response as his submissions and filed nothing further. 1. **ISSUES FOR DETERMINATION** 4. Having anxiously considered the pleadings, the evidence, the submissions and the authorities, I frame the following issues for determination: 5. Whether the dissolution of the marriage, and in particular the ground of desertion, deprives the Applicant of the standing or the entitlement to seek relief under the Matrimonial Property Act, 2013; 6. Whether Land Parcel NYANG'ORI/HAMISI/'B'1176 is matrimonial property within the meaning of Section 6 of the Act; 7. Whether Motor Vehicle Registration Number KAM 458F has been proved to be matrimonial property; 8. Whether the Applicant contributed, within the meaning of Section 2 of the Act, towards the acquisition and improvement of the suit property; 9. Whether the Respondent made an admission of trust, and what the consequences of the statutory presumption under Section 14 of the Act are; 10. Whether this Court may, in a cause under the Act, allot shares to the children of the marriage; 11. What share, if any, the Applicant is entitled to, and by what mode it should be realized; 12. Who should bear the costs of this cause. **F. ANALYSIS AND DETERMINATION** **Issue i: The effect of dissolution and the desertion argument** 1. The Respondent's first and most fundamental objection is that upon the decree absolute the Applicant ceased to be a "spouse" within Section 2 of the Act and thereby "lost any qualification to make any property claim." With respect, the argument is untenable and betrays a misreading of the statute. 2. Section 7 of the Act provides that 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." The Section is, on its face, addressed to the very event which the Respondent says extinguishes the claim. If the Respondent's construction were correct, Section 7 would be rendered wholly inoperative, for no division could ever follow a divorce. A construction which renders a statutory provision nugatory or absurd is one the Court must reject. 3. The point is put beyond argument by Section 17(1) of the Act, which provides that 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 that person. The legislature expressly conferred standing on former spouses. The Applicant is a former spouse. She has standing. That is the end of the matter. 4. The second limb of the objection, that desertion, having been a ground of the divorce, "defeats" contribution, is equally misconceived, and for three reasons. 5. First, it is unsupported by the text of the Act. Sections 2, 6, 7, 9 and 14 make the division of matrimonial property turn upon contribution, not upon conduct. Nowhere does the Act provide that a spouse against whom a matrimonial offence is proved forfeits a beneficial interest already acquired. Property rights, once earned by contribution, are not extinguished by the manner in which the marriage came to an end. To hold otherwise would be to import into a statute a forfeiture provision which Parliament did not enact. 6. Secondly, the proposition offends the principle of fairness which underlies the whole of this jurisdiction. In *Miller v Miller; McFarlane v McFarlane* [2006] UKHL 24, relied upon by the Applicant as persuasive authority, the House of Lords emphasized that in seeking a fair outcome there is no place for discrimination between husband and wife and their respective roles, discrimination being the antithesis of fairness; and that in assessing the parties' contributions to the family there should be no bias in favour of the money-earner and against the home-maker. That principle, of universal application, cannot sit alongside a rule that a deserting spouse loses everything she has built. 7. Thirdly, and decisively on the evidence, the Respondent has proved nothing. He did not produce the pleadings, the judgment, or the decree in the divorce cause. There is therefore no material before me establishing that desertion was a ground upon which the marriage was dissolved, still less that any finding of fact was made against the Applicant in that regard. He who alleges must prove: Sections 107, 108 and 109 of the Evidence Act (Cap 80). The Respondent has not discharged that burden and his assertion remains a bare assertion from the bar. 8. I note in passing, and for the sake of the record, a discrepancy in the material dates. The Originating Summons pleads that the Decree Nisi of 30th January 2024 was made absolute on 9thApril2024. The Applicant's Witness Statement at paragraph 4 gives the date as "31st April 2024", a date which does not exist in the calendar. The Respondent, for his part, refers to "the order absolute in the petition for divorce on 30th January 2024," thereby conflating the Decree Nisi with the Decree Absolute. Having regard to the Decree Absolute produced at page 6 of the Applicant's bundle and to the pleaded date in the Originating Summons, I find as a fact that the Decree Nisi issued on 30th January 2024 and was made absolute on 9th April 2024. The reference to "31st April 2024" in the Witness Statement is a manifest typographical slip which does not go to the root of the Applicant's case and which I disregard. Issue (a) is accordingly answered in the negative**.** 9. The dissolution of the marriage neither deprives the Applicant of standing nor defeats her claim. On the contrary, it is the very event which triggers the division mandated by Section 7. 10. The core legal principles now settled by Kenyan Courts on distribution of matrimonial property include inter alia the following: * *No Automatic 50:50 Split: Marriage itself does not give a spouse an automatic half-share of joint or individual property upon divorce.* * *The Contribution Rule: Property division is strictly tied to the proven direct or indirect contribution of each spouse toward acquiring the asset.* * *Recognition of Non-Monetary Contributions: Homemaking, child care, and domestic services are recognized as valid contributions, evaluated and factored in by looking at equivalent market values.* * *Exclusion of Pre-Marriage Assets: Assets owned separately by a partner prior to the union generally do not form part of joint matrimonial property unless explicitly integrated or developed together during the marriage.* **Issue ii: Whether the land is matrimonial property** 1. **Section 6(1) of the Act** defines matrimonial property to mean (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. Section 6(2) excludes trust property, including ancestral land and land which for the time being is held by a community as ancestral land. 2. It is important to appreciate the structure of Section 6(1). The requirement of joint ownership and acquisition during the marriage appears in limb (c) only. Limb (a) — the matrimonial home — is not so qualified. Property which constitutes the matrimonial home is matrimonial property whether it stands registered in the name of the husband, the wife, or both. Any other reading would allow the spouse in whose name the home happens to be registered to defeat the statute by the simple expedient of registration, which is precisely the mischief Section 14 was enacted to address. 3. On the evidence before me: 4. The Applicant deposes, at paragraph 5 of her Witness Statement, that the parcel was acquired during the subsistence of the marriage and that the parties constructed their matrimonial home upon it together. 5. The Respondent, in his Response, does not deny that the parcel is the site of the matrimonial home. He does not deny that the parties resided there as husband and wife. He does not plead when he acquired the parcel, from whom, or by what means. He does not plead that it was acquired before the marriage, nor that it came to him by inheritance, gift or succession, nor that it is ancestral or trust land within Section 6(2). His entire plea is the bare assertion of absolute ownership, coupled with an objection to the legibility and provenance of the copy title. 6. Crucially, he admits that he is the registered proprietor. The fact of registration in his sole name is therefore not in issue between the parties. 7. Registration is, of course, the beginning and not the end of the inquiry. The Court of Appeal and the Supreme Court have repeatedly affirmed that a registered title may be subjected to a trust. In *M W K v C W N* [2014] KEHC 4739 (KLR) it was held that the registration of property in the name of one spouse does not extinguish the beneficial interest of the other. In *Kivuitu v Kivuitu* (1991) 2 KAR 241 the Court observed that where property is conveyed to spouses there is a presumption as to their intention that the matrimonial home be held jointly; and in *Kamore v Kamore* (2000) 1 EA 81 it was held that where property is acquired in the course of coverture and registered in the joint names of both spouses, the Court must in normal circumstances take it that such property, being a family asset, is acquired in equal shares. To like effect is *Gathiya Essa v Mohamed Alibhai Essa*, CA No. 141 of 1998. 8. More directly in point, the Supreme Court in *Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others* [2023] KESC 106 (KLR) affirmed that where the evidence is that the matter was not expressly discussed, the Court may nonetheless infer from the conduct of the parties a common intention that property be shared beneficially, and that direct contributions to the purchase price by the party who is not the legal owner, whether initially or by way of loan or mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust. That reasoning was applied in the matrimonial context in *I C v S S* [2024] KEHC 3316 (KLR), where it was held that a constructive trust may be imported to defeat a claim of sole ownership founded upon registration. 9. Above all, this Court is bound by Section 14(a) of the Act (Matrimonial Property Act), which provides that where matrimonial property is acquired during marriage in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse. The presumption operates by force of Statute. Once the foundational facts are established- acquisition during marriage, registration in the sole name of one spouse-the evidential burden shifts to the registered proprietor to rebut it. 10. The Respondent has not begun to rebut it. He led no evidence at all. He did not tell the Court when or how he came by the parcel, what he paid for it, or from what source. He did not produce a sale agreement, a transfer instrument, a green card or an abstract of title. His complaint that the copy title annexed by the Applicant is "faint" and the subject of a criminal investigation is, with respect, beside the point: the Applicant does not need the original title to establish a beneficial interest, and the Respondent's own pleading admits his proprietorship. A party who admits the very fact upon which the statutory presumption bites, and then leads no evidence to displace the presumption, cannot succeed. 11. It is trite that unchallenged and uncontroverted evidence, if not inherently improbable, may properly be acted upon by a Court. The Applicant's account of acquisition during the marriage and construction of the matrimonial home upon the parcel stands unchallenged on the record. 12. I therefore find and hold that Land Parcel NYANG’ORI/HAMISI/B 1176 together with the developments thereon comprising the matrimonial home, is matrimonial property within the meaning of Section 6(1)(a) of the Matrimonial Property Act, 2013, and that the Respondent holds the same subject to the presumption of trust in Section 14(a) of the Act, which presumption he has failed to rebut. 13. In my considered view, in the legislative scheme under the Matrimonial Property Act during the survivorship of the marriage, that property acquired and developed for it to be called a home during distribution should be considered joint matrimonial property. However, the question of whether property should be divided equally on divorce or dissolution of the marriage depends in the individual circumstances of each case under adjudication by a Court of law. What is generally accepted and now trite is that it is not every case that the parties hold equal shares to the matrimonial property. It is the duty of the family courts to follow through the principles under the Matrimonial Property Act to determine a contributing spouse’s share in what has been identified as joint property acquired during the subsistence of the marriage. In the neighboring jurisdiction their jurisprudence is akin to our local trajectory in shaping the direction in which the distribution of matrimonial property should be sequenced bearing in mind the constitutional imperatives together with the letter and spirit of the Act. Without necessarily delving into the exact facts of the comparative persuasive dicta in the case of *Kagga v Kagga Cause No. 11 of 2005* the Court observed as follows: *Our courts have established a principle which recognizes each spouse's contribution to acquisition of property and this contribution may be direct, where the contribution is monetary or indirect where a spouse offers domestic services. «When distributing the property of a divorced couple, it is immaterial that one of the spouses was not as financially endowed as the other as this case clearly showed that while the first respondent was the financial muscle behind all the wealth they acquired, the contribution of the petitioner is no less important than that made be the respondent.´* 1. I find that in the recent past judicial decisions seems to have come up with difference interpretations of what constitutes matrimonial property including property held jointly between the married couples, property acquired prior to the marriage and later developed jointly, personal property acquired during the marriage and each separately registered without any common or joint tenancy which means that the marital relation is moving towards ensuring that marriage does not negate individual rights on acquisition and ownership of property. The are provisions of the Marriage Act which newly married couples should start exercising discretion by individualizing assets and properties within the dimension of prenuptial agreement and postnuptial agreements. Like in the case at hand, given the issues being raised by the Respondent, a postnuptial agreement touching on the welfare and the best interest of the children could have helped them facilitate the distribution of this marital estate. However, that is now water under the bridge as this family caught is ceased of jurisdiction to determine and establish the category of assets that belong to the entire marriage before dissolution and issuance of the decree absolute. 2. In a nutshell, addressing the fundamental question to this cause and fostering equality and justice for the two spouses in my view it can never be reduced into a mathematical precision. For the concept of equal sharing of marital estate as envisioned in the law encourages transparency and accountability between spouses regardless of their contribution during the survivorship of the marriage but sometimes that might not be the reality on the ground for many practical reasons for marriage does not subordinate fundamental rights and freedoms of each individual. The other contentious issue is that dissolution of marriage between spouses always remains in the realm of the unknown and when it strikes is like thunderstorm and each individual might not be emotionally prepared to address the fair distribution of matrimonial property. This was the case in this matrimonial cause for none of the parties was willing to promote equity in the matrimonial assets. In terms of quantifying which of the factors under the Matrimonial Property Act carried more weight than the other so that to apportion percentages on distribution of matrimonial property based on the actual contributions made by either spouse whether direct or indirectly throughout the marriage remained a pull and push game plan without harmonizing the conflict underlining it with the provisions of the Matrimonial Property Act. In regard to this matter the marital property has been identified and the level of contribution drawn from both the Applicant and the Respondent has been crystalized based on the evidential material together with accompanying documentary instruments. **Issue iii: Whether the motor vehicle has been proved to be matrimonial property** 1. The position in respect of Motor Vehicle Registration Number KAM 458F is materially different, and I must approach it with the same rigor, notwithstanding the Respondent's failure to lead evidence. 2. The Respondent's denial here is unequivocal and specific: he has never owned any motor vehicle, whether personally, jointly, or with family. He goes further and complains that photographs of a vehicle belonging to a stranger to these proceedings have been annexed, thereby occasioning anxiety to a person not before the Court. That denial squarely puts the Applicant to strict proof. 3. The whole of the Applicant's evidence on this head consists of two photographs of a saloon motor vehicle bearing the registration mark KAM 458F, appearing at page 9 of her bundle. There is: a. no copy of a logbook or certificate of registration; b. no search or records extract from the National Transport and Safety Authority; c. no sale agreement, invoice, importation document or transfer form; d. no insurance certificate, inspection record or evidence of custody; e. no evidence whatsoever of the date of acquisition, and therefore no evidence that the vehicle was acquired during the subsistence of the marriage; and f. no evidence of any contribution by the Applicant, direct or indirect, towards its acquisition. Photographs of a motor vehicle establish that a motor vehicle bearing a particular registration mark exists. They do not establish who owns it, when it was acquired, or from what source it was paid for. Ownership of a motor vehicle in Kenya is ordinarily evidenced, at the least *prima facie*, by the records of the registering authority as reflected in the logbook. The Applicant produced neither the logbook nor a records search, either of which would have been readily obtainable and would have settled the question conclusively one way or the other. Her failure to produce evidence so obviously within reach invites the adverse inference permitted by Section 112 of the Evidence Act. 1. Section 107 of the Evidence Act places upon the Applicant the burden of proving the facts she asserts, and the standard, though only that of a balance of probabilities, is not displaced by the Respondent's silence. A Claimant does not succeed merely because the Defendant leads no evidence; she succeeds because she has established a *prima facie* case which the Defendant has failed to answer. On this head the Applicant has not crossed that threshold. There is nothing for the Respondent to answer. 2. I am fortified in this conclusion by the observation that a finding of ownership adverse to a third party who is not before the Court, made on the strength of photographs alone, would offend the rule of natural justice expressed in the maxim *audi alteram partem*. 3. The claim in respect of Motor Vehicle Registration Number KAM 458F therefore fails for want of proof and is dismissed. I make no finding as to who in fact owns that vehicle; the question does not arise for determination and is not determined. **Issue iv: Contribution** 1. Section 2 of the Act defines "contribution" to mean monetary and non-monetary contribution, and expressly includes domestic work and management of the matrimonial home, child care, companionship, management of family business or property, and farm work. The definition is deliberately expansive. Parliament thereby resolved, in favour of the home-maker, the long-standing controversy which had bedevilled the jurisprudence under Section 17 of the repealed Married Women's Property Act, 1882. 2. In *L W K v S K G* [2024] KEHC 11212 (KLR), following *J O O v M B O*, the Court reasoned that Article 45(3) of the Constitution underscores equality and fairness between spouses; that each party's contribution to the acquisition of matrimonial property could not have been on an equal basis, since one party may have contributed significantly more in financial terms; and that equity denotes that the other party, though not having contributed more resources, may nonetheless through her actions and deeds have provided an environment that enabled the first party to have more resources with which to acquire the property — which amounts to indirect contribution. The Court identified, as instances of such direct or indirect contribution: paying part of the purchase price; contributing regularly to the monthly payments in acquisition; making a substantial financial contribution to family expenses so as to enable mortgage instalments to be paid; contributing to the running and welfare of the home and easing the burden of the spouse paying for the property; and caring for the children and the family at large while the other spouse worked to earn the money to pay for the property. 3. In *Federation of Women Lawyers Kenya (FIDA-Kenya) v Attorney General; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae)* [2025] KECA 1588 (KLR), the Court reflected on the historical injustice occasioned by the failure to reward or recognise a spouse whose contribution to the family was through home-making, household chores, bearing and raising children, or the expenditure of her resources on the day-to-day subsistence requirements of the family, thereby depriving herself of the opportunity to acquire durable property — the majority of such spouses historically being women. It is precisely that mischief which the statutory definition of contribution was enacted to cure, and the essence of the provision is that Courts must evaluate the interests of the parties and make a just and equitable distribution. 4. Applying those principles to the evidence, I find the Applicant's contribution to be established on both limbs. 5. **Monetary contribution** 6. The Applicant's payslips at pages 19–23 of the bundle establish that at all material times she was a P1 teacher employed by the Teachers Service Commission, TSC Number 433099, stationed at Vihiga Shamalako Primary School, holding National Identity Card Number 11849860. She was, in short, a woman of independent earned income throughout the marriage. 7. Those payslips are eloquent as to the use to which that income was put. Taking them chronologically, they disclose sustained and heavy deductions in favour of lenders — Kenya Credit Traders, Kakamega Teachers Sacco, Barclays Bank, Madison, and SACCO loan recovery and interest — such that: * 1. for June 2007, against total earnings of KSh 15,086.00 the deductions were KSh 13,417.00, leaving a net pay of KSh 1,599.00; 2. for November 2008, against total earnings of KSh 17,585.00 the deductions were KSh 17,088.55, leaving a net pay of KSh 496.45; 3. for November 2012, against total earnings of KSh 26,259.00 the deductions were KSh 15,807.70, leaving a net pay of KSh 10,451.30. 8. A woman who takes home KSh 496.45 in a month is not spending her salary upon herself. The pattern of deductions corroborates precisely what she deposes at paragraph 7 of her Witness Statement: that she borrowed from Kenya Credit Traders and from her bank in order to meet the family's obligations. 9. The IG Sacco Limited Member Loans Statement at pages 10–18, run on Account Number 001-019337-002-020 in the name of Linet Ayuma Majani, identification number 11849860 — the same identification number appearing on her payslips and in her Witness Statement — records substantial borrowing over the material period, including: * 1. Progressive Loan (Old Rate) of KSh 205,000.00 disbursed in November 2016; 2. Fosa Refinance Loan carrying a balance of KSh 164,062.50 brought forward in 2016; 3. a Progressive Loan 1.6 of KSh 350,000.00 disbursed in September 2017; 4. Progressive Loan Advances of KSh 10,000.00 (2016) and KSh 50,000.00 (2017); and 5. A series of salary advances between 2017 and 2018. Aggregated, the borrowings evidenced by that statement exceed KSh 700,000.00, exclusive of interest, in a period of some two years. 1. The same statement records guarantor attachments against her account in 2018 in the sums of KSh 30,254.75, KSh 64,089.62 and KSh 33,081.16, together with the associated interest capitalisations and subsequent guarantor relieving entries. Whatever the precise mechanics, the entries confirm that the Applicant's own Sacco account was exposed to, and attached in respect of, guarantee obligations during the very period she describes at paragraph 10 of her Witness Statement as one of acute family financial distress. 2. I accept the Applicant's evidence that this borrowing was substantially deployed towards the family, including towards the acquisition and development of the suit property. I am conscious that the loan statements do not, on their face, trace particular sums into the purchase of the parcel. But that is very often the case in matrimonial affairs, where spouses do not keep accounts against one another, and the law does not require such tracing. As the Supreme Court recognised in *Shah* (above), the Court may infer common intention from conduct; and as *L W K v S K G* holds, a substantial financial contribution to family expenses which eases the burden on the acquiring spouse is itself contribution. The Respondent, who alone could have explained the source of the purchase money, chose to say nothing. 3. **Non-monetary contribution** 4. The Applicant's non-monetary contribution is, if anything, more compelling and is entirely uncontroverted: 5. She bore and raised three children over a marriage of nineteen years, and deposes at paragraph 9 of her Supporting Affidavit that she looked after the home and the children and spent most of her free time as the family's caregiver. 6. She sustained the family singlehandedly between 2016 and 2017, when the Respondent's entire salary was attached in consequence of guarantees he had given to defaulting colleagues. 7. She sustained the family again during the Respondent's interdiction by the Teachers Service Commission from 23rd August 2019 to 29th October 2020 — a period of over fourteen months during which, on the unchallenged evidence, he was unable to meet the family's needs. The interdiction and reinstatement letters at pages 32–33 corroborate the dates. 8. During that same period she borrowed money to pay part of the Respondent's own school fees for his further education — an investment in his earning capacity from which he, and not she, has retained the benefit. 9. She paid school fees and met household shopping, including at a time when the Respondent declined to pay fees for two of the children. 10. She undertook the regular repair and maintenance of the matrimonial house, evidenced by receipts at pages 24–27. 11. Not one of these averments is denied. The Response does not engage with paragraphs 6 to 12 of the Witness Statement at all. In our adversarial system, allegations of fact which are not traversed and which are not inherently improbable may be taken as established. 12. I therefore find that the Applicant made substantial contribution, both monetary and non-monetary, within the meaning of Section 2 of the Act, towards the acquisition, improvement and preservation of the suit land and the matrimonial home thereon. Her contribution was, in the language of her Counsel which I adopt, continuous, substantial and directly linked to the acquisition and sustenance of the matrimonial asset. In the alternative, and were it necessary to say so, her contribution towards the construction, repair and maintenance of the matrimonial home would in any event have vested in her a beneficial interest under Section 9 of the Act equal to the contribution so made. **Issue (v): The alleged admission of trust, and the statutory presumption** 1. Counsel for the Applicant submits that the Respondent "expressly admitted before this Honourable Court that the suit properties are held in trust for the Applicant and their children," that facts admitted need not be proved, and that the admission is dispositive, elevating the trust from constructive to express. 2. I have anxiously considered this submission and I am unable to accept it in the terms in which it is advanced. No such admission appears anywhere in the Respondent's Response. That pleading asserts the diametric opposite: that he is the *absolute* owner of the parcel and that the onus of rebuttal lies with the Applicant. Nor does any such admission appear in any other document filed by the Respondent, he having filed nothing else. 3. An admission which is to be acted upon as dispositive must be clear, unequivocal and unambiguous, and must appear on the record. Where a party seeks to rely upon an oral admission made in the course of proceedings, it must be found in the Court's own record of those proceedings. Having reviewed the record before me, I do not find it. To the extent that the submission rests upon an inference drawn from something said from the bar or in the course of exchanges not reduced to the record, it cannot bear the weight Counsel places upon it. 4. The Applicant, however, loses nothing by this finding. Her case does not depend upon any admission. It rests upon the far firmer foundation of the statutory presumption in Section 14(a) of the Act, which arises by operation of law upon proof that matrimonial property was acquired during the marriage in the name of one spouse. That presumption having arisen, and the Respondent having led no evidence whatsoever to rebut it, the trust is established as a matter of law. Where Statute supplies a presumption, an admission is a convenience, not a necessity. 5. I add only this. It is not in the interests of any party for submissions to attribute to an opponent a concession which the record does not disclose. Counsel are reminded that submissions are not evidence and cannot supply what the record lacks. **Issue iv: Whether shares may be allotted to the children** 1. By the supplementary prayers in her submissions, the Applicant seeks a declaration that the Respondent holds the suit properties in trust for herself and the three children, and proposes an apportionment of 50% to herself and 30% to be held collectively for the children. 2. I decline that invitation, for four reasons. 3. First, it departs from the pleadings. The Originating Summons prays for a declaration that *the Applicant* is entitled to 50% or such other or higher proportion. It contains no prayer on behalf of the children. It is elementary that parties are bound by their pleadings and that a Court may not grant a party a remedy which was never sought. A prayer introduced for the first time in written submissions, and to which the opposing party has had no opportunity to respond, cannot found a decree. 4. However, although the children of this marital union are not enjoined in the proceedings including the originating summons, they are part and parcel of these lineage and their welfare and best interest cannot just be wished away. The parents who are litigating all the way from the Marriage Act to dissolve their union and further down after the decree absolute a claim has been made under the Matrimonial Property Act on what is commonly known as the sharing of the marital estate it is of fundamental importance that children should not be rendered stateless, asylum seekers or refugees in their own country under the excuse or justification that the legal issues at hand are about their father and mother distributing assets which came into their possession during the subsistence of their marriage and it so happened by an act of God that children were begotten during the intimacy contractual relationship underpinned within the marital relations of both parties. 5. Generally speaking, children are not legally considered parties to a marriage and do not have an automatic right to inherit or own a direct share of a matrimonial property on resolution of a marriage. However it must be borne in mind that children are critical actors and interested parties who should not be left out when decisions are being made how the properties of their parents should be distributed, split or held in trust. Primarily and likely so under our constitutional architecture and the applicable Statute their survival rights must be guaranteed. I am therefore of the considered view that the welfare and best interest and physical financial welfare of the children survived of this marital estate override any procedural technicalities in this matrimonial property distribution which is likely to impair their rights to health, housing, education, maintenance as outlined in the law. 6. Thirdly, the Act is concerned with rights between spouses. Section 7 speaks of ownership vesting in *the spouses* according to *their* contribution and of division *between the spouses*. Section 14 raises a presumption of trust in favour of *the other spouse*. Section 17 provides for a declaration of rights to property contested between a person and *a spouse or former spouse*. A matrimonial property cause is not the vehicle for the vesting of proprietary interests in children. The proposed apportionment would also produce the curious result of leaving the registered proprietor with a smaller share (20%) than the Applicant, an outcome for which no principled justification was offered. 7. Fourthly, the children's interests are not thereby left unprotected. Their maintenance and the provision of shelter are matters governed by the Children Act, 2022 and by such orders as may be made in the appropriate forum, and nothing in this judgment prejudices any application in that behalf. Further, nothing prevents the parties from settling any part of their respective shares upon the children by their own act. The supplementary prayer for an allotment of 30% to the children is accordingly declined. **Issue vii: The Applicant's share, and the mode of realization** 1. The governing principle is now settled at the highest level. In *Joseph Ombogi Ogentoto v Martha Bosibori Ogentoto*, SC Petition No. 11 of 2020, the Supreme Court held that Article 45(3) of the Constitution provides for equality at the time of dissolution of marriage, but that such equality can only mean that each party is entitled to their fair share of matrimonial property and no more; that nothing in the Constitution suggests that marriage automatically results in common ownership or co-ownership of property; that Article 45(3) was not designed for the purpose of enabling a Court to pass property rights from one spouse to another by the fact of marriage only; and that the Courts are to ensure that at dissolution each party gets a fair share of the matrimonial property based on theircontribution, so that no party is unfairly denied what they deserve and no party is unfairly given more than he or she contributed. 2. There is therefore no automatic entitlement to 50%. The figure of one-half is not a starting point conferred by status; it is a conclusion which must be earned on the evidence. Equally, however, where the evidence establishes that the parties' contributions over a long marriage were substantial, sustained and thoroughly intertwined, equal division may well be the fair and just outcome. That is the approach taken in *G C R v C O O* [2025] KEHC 11953 (KLR), where it was held that in long marriages in which contributions are intertwined over an extended period, equal distribution is appropriate. 3. Weighing the matter in the round, I take into account the following: 4. *The duration of the marriage. Nineteen years, from 2005 to 2024, is a long marriage by any measure. Three children were born of it and raised within it.* 5. *The parity of the parties' earning roles. Both parties were employees of the Teachers Service Commission. This is not a case of a sole breadwinner and a dependent spouse; both brought income into the household, and the Applicant's payslips show that hers was consumed by family obligations.* 6. *The Applicant's proved monetary contribution. Borrowings in excess of KSh 700,000 from IG Sacco between 2016 and 2018, further credit from Kenya Credit Traders and her bank, and salary deductions so heavy as to leave her, in some months, with a few hundred shillings.* 7. *The Applicant's proved non-monetary contribution. Nineteen years of home-making and child care; sole maintenance of the family during two distinct periods of the Respondent's financial incapacity, one of them lasting over fourteen months; payment of school fees which the Respondent declined to pay; repair and maintenance of the matrimonial home; and the funding, out of borrowed money, of the Respondent's own further education.* 8. *The Respondent's complete failure to rebut the Section 14 presumption, or indeed to place any evidence of any kind before the Court.* 9. *The absence of any evidence of a disproportionate contribution by the Respondent. He might have shown that he alone paid the purchase price, or that the parcel came to him before the marriage or by inheritance. He chose to say nothing, and I cannot speculate in his favour.* 10. It has become trite to describe the metamorphosis in Kenyan family law over the last two or three decades as dramatic. Equally, it will be myopic to fail to see that the process of transition from the dawn of the new Constitution is far from complete, the signs of change are manifest everywhere. Marriage has been described in may ways, some hardly complementary but for present purposes it is serves well to remember that it is a social phenomenon, a functional as well as a legal concept and a constitutional head of power. The dissolution of the marriage between the Applicant and the Respondent set them to a new formation of making a fresh start in their lives and what the scheme of legislation of matrimonial property does is to quantify any wealth created together in the form of capital development so that each spouse can have something however small to start writing a new chapter of his or her life. 11. There was so much emphasis in this litigation that Respondent on the welfare and best interest of their children. I concur strongly based on the legal principles: * Paramount Consideration: The child's emotional, physical, and educational welfare overrides statutory or traditional rights of parents. * Stability and Continuity: Courts avoid uprooting a child from an environment where they are already thriving and well-adjusted. * Financial Protection: The court ensures adequate maintenance and support for minor children when granting a divorce 1. Therefore I am of the belief that it is in the best interest of both parties to bear in mind that the best interest of their children are paramount even during the resolution of their marriage and as the relationship gets homestretch of permanent dissolution upon execution of this judgment they should not forget the survival human rights of their children for they remain innocent till eternity and it is only both of them who owe each of their child young or old a duty of care within the constitutional, statutory and customary law framework. This is one obligation and responsibility they cannot afford to avoid under the guise that they are no longer husband and wife. 2. In the premises and on that footing, and further the cited case law with their attendant principles on matrimonial property distribution I am satisfied that the Applicant has discharged the burden of proof on a balance of probabilities with regard to direct and indirect contribution in acquisition and development of the suit land referenced as NYANG'ORI/HAMISI/'B'1176 for the following orders to abide: 1. *That a declaration be and is hereby issued that Land Parcel NYANG'ORI/HAMISI/'B'1176, together with the developments thereon comprising the matrimonial home of the parties, is matrimonial property within the meaning of Section 6(1)(a) of the Matrimonial Property Act, 2013.* 2. *That a declaration be and is hereby made that the Applicant and the Respondent are entitled each to a fifty percent (50%) share in the aforesaid asset which falls within the definition of matrimonial property under the Act.* 3. *That a declaration be and is hereby made that the LR NYANG'ORI/HAMISI/'B'1176 be subjected to a valuation report by the County Valuer within thirty (30) days from today’s date to enable the Court to deal with the metrics of the apportionment of fifty percent (50%) shareholding of the property.* 4. *That a declaration be and is hereby made that both the Applicant and the Respondent jointly meet the cost of the valuation report.* 5. *That a declaration be and is hereby made that the title deed alleged to have been lost or misplaced by the Respondent an order do issue to the Land Registrar to reconstruct the records and issue a replacement title deed within the provisions of the Land Registration Act 2012 within the stipulated period under the Statute.* 6. *That the claim in respect of Motor Vehicle Registration Number KAM 458F**is**dismissed for want of merit.* 7. *That a declaration be and is hereby made that upon the valuation report being shared with the Court each party be at liberty to apply in so far as implementation of the metrics of valuation of the Asset is concerned.* 8. *That a declaration be and is hereby made that an for sale or redemption by either of the parties be vested in their joint decision making and in default an appropriate application be made for this Court to issue further orders taking into account the fair and proportionate issues on matters arising on the valuation report.* 9. *That in the alternative a declaration be and is hereby made that the suit property now declared as matrimonial property be divided into equal share bearing in mind the welfare and best interest of the children some of whom are below maturity age be accommodated in the already established matrimonial home.* 10. *That a declaration be and is hereby made that the welfare and best interest of the child are of paramount importance even during the marriage dissolution and a share of the marital estate should be set aside for their emotional, physical, educational, dignity, security and* *the cluster of right to life in Article 26 of the Constitution.* * 1. *That the costs of this litigation be in the cause in view that this is a family matter. It is so ordered.* **DATED, SIGNED AND DELIVERED AT VIHIGA THIS 28TH DAY OF JULY 2026** **………………………………….** **R. NYAKUNDI** **JUDGE**