https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7347

LNN v ANN (Matrimonial Cause E020 of 2024) [2026] KEHC 7347 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEHC 7347 (KLR) Republic of Kenya In the High Court at Thika Matrimonial Cause E020 of 2024 FN Muchemi, J May 21, 2026 Between LNN Plaintiff and ANN Defendant Judgment 1.The plaintiff instituted this suit vide Originating Summons dated 20th December 2024 seeking determination that:-a.Whether the plaintiff is entitled to half share of all the properties acquired or/and developed by the parties during the subsistence of the marriage.b.Whether the plaintiff contributed to the purchase and development of the following matrimonial properties; I.R. XXXX, I.R. XXXX both located in Mwihoko and Ruiru in Kiambu County respectively Plot Number C519, Kayole Matopeni Squatters and Police Station Resettlement Scheme,Kjd/Olooloitikosh/Kitengela/XXXX,Nthawa/Gitiburi/XXXX,XXXX,XXXX,XXXX Maringo House Plot Number XXXX (with one bedroom and two extensions) either in monetary or non monetary form.c.Whether the plaintiff contributed to the development of the matrimonial house built on I.R. XXXX located in Mwihoko, Ruiru, Kiambu County and matrimonial house located in Embu at the respondent’s ancestral home.d.Whether the plaintiff contributed in the planting and nurturing of 350 melia vokensis trees and 200 miraa trees planted on the respondent’s ancestral land in Embu County.e.Whether the plaintiff contributed to the purchase of household items in the matrimonial house in Ruiru which are estimated to be worth Kshs. 400,000/-.f.Whether an order and declaration ought to issue that the defendant do execute all documents and do all such things as are necessary to transfer the plaintiff’s portions in the said properties and investments to the plaintiff and/or her nominee and in default, the Registrar of this honourable court or any such officer be authorized to execute all such documents and do all such things to transfer the same to her in place of the defendant to be held by her without interruption.g.Whether the plaintiff and the children of the marriage between the parties should be allocated the ownership and occupation of the matrimonial house built on the property known as I.R. XXXX located in Mwihoko Ruiru, Kiambu County.h.Whether the plaintiff should be compensated for all the money spent on payment of rent since 1st April 2022 to the date of determination of this suit.i.Whether the outstanding loan owed by the plaintiff at the NCBA Bank should be cleared using the proceeds from sale of some of the matrimonial properties before distribution of the net value between the parties. 2.In opposition to the originating summons, the defendant filed a response headed “Reply to the Originating Summons” dated 17th March 2025. 3.The matter was heard by way of viva voce evidence. The Plaintiff’s Case 4.PW1, the plaintiff adopted her witness statement dated 20th December 2024 and testified that the defendant and herself began cohabiting together as husband and wife in August 2004 and their union was blessed with four children. PW1 testified that in the year 2007, they bought a plot of land in Kayole and built rental houses consisting of 18 single rooms earning an income of Kshs. 3,000/ per room. The witness testified that she did not contribute to its purchase and the defendant developed the plot over the years. The witness claimed non-monetary contribution to the property by looking after the children and taking care of the defendant. Himself as her husband. The defendant is the registered owner of the said plot and she claims her share in the said property. 5.The witness further testified that in 2014, the couple bought two plots of land in Mwihoko for purposes of constructing the matrimonial house, which they did. In 2017 the plaintiff bought a plot in Mavoko being LR. No. XXXX and later sold it for Kshs. 670,000/- in 2021 to generate funds to build the matrimonial house. In 2011 the plaintiff bought a plot in Utawala, Machakos County which she sold in 2017 for Kshs. 1,400,000/- out of which she used Kshs. 400,000/- for the construction of the matrimonial home, Kshs. 500,000/- to purchase another plot at Joska and Kshs. 500,000/- to purchase a plot of land in Rongai registered under her name but the defendant kept custody of the title deed to date. 6.The witness testified that she later sold the plot in Joska for Kshs. 670,000/- and used the proceeds to construct the matrimonial home by plastering, wiring, blundering, ceiling and windows and grills installation. PW1 testified that in the year 2017, she bought the initial construction materials from a supplier named Njenga and she procured the services of an architect named Kilole of Muthaiga Square. She stated that she did the foundation of the house and digging of the septic tank at a cost of Kshs. 900,000/- whereby she took a loan of Kshs. 500,000/- from Kumbukumbu Sacco and also used Kshs. 754,804/- in the project which was part of a research grant she had won from National Council of Science and Technology. 7.PW1 testified that she and the defendant had savings of Kshs. 1million which was contributed by both of them and deposited to an existing Cooperative Bank account registered in the name of the defendant. The said money was later used to buy treasury bonds and finally used for the purposes of raising the wall and clearing the title deeds for the two plots where the matrimonial house is built on in Mwihoko. The witness further stated that the defendant applied for a loan of Kshs. 2.5 million with her help in finding guarantors and they used the money for the construction of the slab, walling of the first storey, rafters, plastering and windows. She stated that she later took a loan from standard Chartered Bank of Kshs. 900,000/- which she used for roofing and related labour costs. The witness testified that the foreman who oversaw the construction of the matrimonial home from the foundation to its completion is named Githinji. 8.The plaintiff testified that she took another loan from KCB Bank and spent Kshs. 400,000/- to fix the tiling, doors and toilets. She further testified that she took a loan of Kshs. 1,684,000/- from NCBA Bank which she used to repay another loan and used Kshs. 600,000/- to do the gypsum, ceiling, wardrobes, paints and house finishing related costs and bought new iron sheets to finish the second phase roofing. 9.The plaintiff further stated that in 2019, the defendant bought four plots in Siakago, at Undutumwe in Embu County at Kshs. 200,000/- per plot and in 2021 he bought another plot at Kwambuya in Embu County. The witness further testified that they have planted 350 hardwood trees in Embu County on the defendant’s ancestral land which can fetch Kshs. 150,000/- per tree and 200 miraa stems which earns Kshs. 20,000/- per week. She further added that they built a matrimonial home in Embu County which is a well equipped three bedroom house. 10.It was the further evidence of the plaintiff testified that she solely bought LR. No. Kjd/Oloolotikoshi/Kitengela/XXXX and the same should be given to her solely. Further, the witness stated that house Plot No. XXXX Maringo Nairobi belongs to Nairobi City Council where the defendant receives monthly rental income at Kshs. 15,000/- and the two extensions at Kshs. 4,500/- each. She further stated that she does not gain any rental income since they separated as the defendant receives the rent solely. 11.The witness stated that their marriage began facing a lot of irreconcilable differences as a result of which she was chased away from the matrimonial home by the defendant on 31/03/2022. The plaintiff filed Divorce case No.E40/2024 at Ruiru Law Courts and judgment was issued on 31/10/2024 whereby the marriage was officially dissolved. On 1/12/2024 the got the decree absolute was issued. Later, the plaintiff filed a children’s case in Milimani Case No. 1094 of 2022 where she was granted custody of the children. 12.PW1 asked the court to allocate her the matrimonial home so that she could live there with the children and the defendant to be given Ruiru I.R XXXX which is quite valuable but not yet developed. She further prayed that the loan be cleared by both of them as they both share the properties. Additionally she asked the court for reimbursement of the rent since they parted in March 2022. The witness further stated that she bought the furniture in the matrimonial home at Kshs. 400,000/-. 13.On cross examination, the witness testified that a criminal case was instituted against her Criminal Case No. E571 of 2022 where she was charged with the offence of offensive conduct whereas the defendant was the complainant. She further testified that the ancestral land LR. No. Embu/Ngangara/XXXX was originally owned by her father in law and was inherited by the defendant. She added that they planted hardwood trees, muguka and pawpaw trees. 14.The witness testified that she took loans from KCB, NCBA, Kumbukumbu Sacco and Standard Chartered Bank for construction of the matrimonial home. The loan from NCBA was Kshs. 1,684,000/-, from KCB was 577,013 which offset a loan from Kumbukumbu sacco. She stated that she spent Kshs. 400,000/- to fix tiles, doors and toilets. Further the loan from Kumbukumbu sacco was Kshs. 500,000/-. The Defendant’s Case 15.The defendant DW1 relied on his Reply to the Originating Summons dated 17th March 2025 and witness statement dated 9th May 2025. He testified that he solely bought the Kayole plot known as Kayole/Matopeni/C519 from Asha Umar for a consideration of Kshs. 290,000/-. The plaintiff did not contribute to its purchase or construction of the rental units. The witness testified that on 7th June 2023, he sold the Kayole property to one Nelsen Runji for Kshs. 700,000/- and the proceeds were used to construct the matrimonial home. He further stated that there is no rental income being generated from the same property. The plaintiff placed a caution on the said property notwithstanding she did not contribute to the purchase and development of the same. 16.DW1 further testified that he solely purchased and transferred the Mwihoko properties being LR. No. XXXX/2041 (IR No. XXXX) where the matrimonial home is constructed and LR. No. XXXX/2040 (IR No. XXXX) which is undeveloped, from Daykio Plantation Limited, which properties are registered in their joint names. The witness further stated that LR. No. XXXX/2040 solely belongs to him as he bought it and paid all the title processing fees as the plaintiff only contributed to the construction of the matrimonial home. He further stated that he made significant contribution in the construction of the matrimonial home as he paid for fabrication and installation of windows, metal grills, doors, void and staircase rails; he bought windowpanes and paid for their installation; he paid for fencing; landscaping; plastering; installation of the underground and upper tank; construction of the sewer line; installation of the gutters together with water harvesting and storage structures; he engaged and paid the foremen and handymen; he constructed the gate; installed the toilets, sinks, mirrors and shower heads, wooden doors and supervised construction. He further added that he continued to maintain the matrimonial home singlehandedly by paying the utility bills and repairs when need arose. The witness stated that the plaintiff was welcome to go and collect the household goods she purchased namely a table, two burner gas cooker, water dispenser and wall unit with assorted utensils. 17.DW1 testified that the Utawala property known as FC/2117 of LR. No. 9039/2 was solely purchased by himself from Ms. Lily Nyambura Githiiyi on 17th October 2011 for Kshs. 500,000/- and he later sold the said parcel for Kshs. 1 million and the proceeds were used to purchase LR. No. Kjd/Olooloitikoshi/Kitengela/XXXX (Rongai property) which was registered in the name of the plaintiff and LR. No. XXXX (Joska property) from Francis Kiogora Kimani at Kshs. 525,000/- but which has no registration documents. He further testified that he allowed the plaintiff to enter a sale agreement for the purpose of selling it to Mr. Sylvester Musembi Musyoka and the proceeds of the sale of the joska property in the sum of Kshs. 670,000/- was used in construction of the matrimonial house. The witness added that the Rongai property is still registered in the name of the plaintiff but the same is held in trust of himself and he prays that the court declares that the property solely belongs to him. 18.The witness denied that he and the plaintiff owned a joint account with Cooperative Bank. He stated that he solely raised the savings from the said bank and used the same for the construction of the matrimonial home.DW1 added that he used the money from matured government treasury bonds and bills to aid in the construction of the matrimonial home. 19.DW1 stated that he bought 4 plots of land in Embu all registered in his name but they have not been developed. He further added that the plaintiff did not contribute in any way to their acquisition and she was opposed to any family developments in Embu depicting them as a waste of time and money. The witness further stated that the hardwood trees and miraa stems presented by the plaintiff are unknown to him and do not belong to him as trees and miraa grown in Embu home occurs in his family ancestral land and belong to different relatives. He further added that his father planted the trees and bequeathed the land to him together with the trees already planted and growing. 20.DW1 testified that the house erected in his family ancestral home was built by his parents after he underwent initiation and does not form part of the matrimonial property as it existed before they got married. The witness testified that during their marriage, the plaintiff did not contribute in any way to most of the properties he acquired as she was schooling at Nairobi Technical College where she graduated with a diploma in Applied Sciences in the year 2005, at the Nairobi Kenya Polytechnic where she graduated with a higher diploma in Biotechnology in the year 2008, Jomo Kenyatta University of Agriculture and Technology where she graduated with a degree in Bachelor of Science in the year 2012, Kenyatta University where she graduated with a Master of Science degree in the year 2020 and in the year 2021 she registered for her PHD programme. 21.The witness asserted that he took up most of the monetary and non monetary family responsibilities including but not limited to payment of hospital bills, house rent, school fees and related expenses for the children, food, for general family upkeep, for family outings, for family social functions, house helps, wages, home utility bills, maintaining home compound, childcare, cooking supporting the plaintiff financially among others and allowed the plaintiff to advance her studies hence her contribution does not amount to 50%. 22.On cross examination the witness testified that the Kayole property was acquired in 2009 during the subsistence of their marriage and he solely developed it. The witness further stated that he sold it to one Nelson Runji, his brother in the year 2023 for Kshs. 700,000/- but he did not seek spousal consent as he and the plaintiff were not in communication. He further added that he used the proceeds to construct the matrimonial home. DW1 testified that the ancestral land measures 8 acres and was transmitted to him in the year 2021 but he has not built any home on the said land. He added that it is on the 2nd parcel of land given to him by his father where he has built a house by renovating the house his father built and expanding it in the year 2006 which was during the subsistence of their marriage. 23.DW2, Nelson Runji adopted his witness statement dated 5th May 2025 and testified that he is a brother to the defendant. He further stated that on 7th June 2023, he entered into an agreement with the defendant for the purchase of the Kayole property known as Kayole/Matopeni/C519 for a consideration of Kshs. 700,000/-. 24.On cross examination, the witness stated that the property has not been transferred to him as the plaintiff placed a caution alleging the property is matrimonial property. The witness further testified that the parties herein were married at the time of the purchase of the property and he did not seek the plaintiff’s consent. He further added that he paid cash and he had an affidavit to show that he paid for the plot in cash. 25.DW3, Joseph Ekwam adopted his witness statement dated 10th May 2025. He testified that he looked after construction materials, worked on the concrete and house structure and did other works for the defendant whilst constructing his home in Mwihoko. He further stated that he was paid Kshs. 101,660/- in cash by the defendant and other monies by mpesa which totalled to Kshs. 126,719/-. 26.On cross examination the witness stated he worked for the defendant from 2017 to 2018. He further stated that he was paid Kshs. 25,059/- through mpesa by the defendant. 27.DW4, Stephen Owino adopted his witness statement dated 30th May 2025 and testified that he worked for the defendant from 2018 to 2022. He further stated that he did landscaping, fencing, plastering, cleaning, interior works, water tank labour and construction of manholes at DW1’s home in Mwihoko. The witness stated that he was paid Kshs. 32,915/- by mpesa and Kshs. 40,000/- in cash. For the landscaping he was paid Kshs. 10,000/, fencing Kshs. 8,000/- and cleaning and interior works Kshs. 10,000/-. 28.On cross examination, the witness testified that he received Kshs. 72,915 from DW1 in total. The witness testified that he did not include all the works he did while he was writing his witness statement. He stated that the total he was paid via mpesa was Kshs. 32,915/-. He further stated that at times the plaintiff used to supervise the construction but most of the times it was the defendant. 29.DW5, Johnstone Amiani adopted his witness statement dated 2nd May 2025 and testified that he worked for DW1 from 2018 to 2019. He further stated that he dug the septic tank, constructed the gateand house column bases at DW1’s house at Mwihoko. He stated that he was paid Kshs. 100,073/- with DW1 paying him Kshs. 100,049/- and the plaintiff paying Kshs. 23,100/-. The witness stated that the defendant supervised the foundation and carried out the measurements of the works. 30.On cross examination the witness stated that the defendant paid him by cash while the plaintiff paid him via mpesa. He further stated that both the plaintiff and defendant used to go to the construction site but on most occasions it was the defendant who visited the site. 31.DW6, Henry Magara adopted his witness statement dated 10th May 2025 and testified that he worked for DW1 from 2018 to 2024 where he grew and maintained the fence and compound at DW1’s house in Mwihoko. He further stated that he was paid Kshs. 34,512/- via cash and other monies by mpesa. He added that DW1 used to supervise the site works. 32.On cross examination the witness stated that the plaintiff also used to supervise the construction work on site. 33.Parties filed submissions in support of their respective cases. The Plaintiff’s Submissions 34.The plaintiff relies on Article 45 of the Constitution, Section 2 of the Matrimonial Property Act and the case of JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & Another (amicus Curiae) [2023] KESC 4 (KLR) and submits that from the evidence tendered, both parties contributed either monetarily or non monetarily. The plaintiff further submits that she made a huge monetary and non monetary contribution in acquisition of the properties herein, as all the properties were acquired during the subsistence of the marriage. Further she submitted that she demonstrated that she made financial contributions using the funds she got from savings, sale of properties and loans from financial institutions such as Kumbukumbu Sacco, KCB Bank, NCBA Bank. She further submitted that she took care of the defendant and the children which was part of her non-monetary contribution for the seventeen (17) years they lived together as husband and wife. 35.The plaintiff relies on Section 14 of the Matrimonial Property Act and argues that the properties were acquired during the subsistence of the marriage and registered in the defendant’s name should be viewed as the defendant holding them in trust for the both of them. The Defendant’s Submissions 36.The defendant relies on Section 2 and 6 of the Matrimonial Property Act and the case of Nyakeya v Nyamweya (Civil Appeal 234 of 2018) (2025) KFCA 20 (KLR) and submits that in the case of inherited property, the same should not be claimed unless there is proof of contribution or improvements to the same. The defendant further submits that the Kayole property, the Mwihoko properties, the household goods in the Mwihoko matrimonial house, the Rongai property and the Embu properties are matrimonial properties pursuant to Section 6(1) of the Matrimonial Property Act. In regards to the alleged house erected on the inherited land, the defendant argues that the same was constructed by his father and it sits on his father’s land and not the inherited land as misrepresented by the applicant. 37.The defendant argues that the plaintiff only alleged contribution towards its improvement of the inherited land but did not provide any evidence. The plaintiff only provided photographs of a mud house and trees and plants which are unknown to him. Thus, the defendant argues that the inherited land is not matrimonial property and should be excluded form division. The defendant further argues that in regards to the Maringo property, the plaintiff failed to prove that he owns the property or that the parties have a beneficial interest in the property. He further produced evidence to show that they directly paid rent to the Nairobi City Council when they lived in the said house. The defendant Further evidence is that he does not collect rent from the City Council house and the same ought to be excluded from the list of matrimonial properties. 38.The defendant refers to Article 45(3) of the Constitution and submits that the plaintiff did not substantiate her indirect contribution towards the acquisition of the Kayole property and the Embu properties. He argues that the plaintiff is gainfully employed and she would have contributed in the said properties but she chose not to do so. Instead, she furthered her education. To support his contentions, the defendant relies on the case of Nyakeya v Nyamweya (Civil Appeal 234 of 2018) (2025) KFCA 20 (KLR). 39.The defendant relies on Section 14(b) of the Matrimonial Property Act and submits that although the parties are jointly registered in the Mwihoko properties, he has provided evidence to show that their share in the property is not equal. The defendant submits that he bought the two properties for Kshs. 1,784,200/- and that he spent Kshs. 6 million towards the purchase and building of the matrimonial house and he continues to spend money on the maintenance of the house. Further the plaintiff only contributed Kshs. 1,136,000/- which does not amount to 50% contribution. The defendant urges the court to direct that he refund the plaintiff monetary contribution towards the construction of the same. 40.The defendant submits that he should be granted LR No. XXXX/2040 (IR No. XXXX) solely as he acquired it himself with no input from the plaintiff and it is undeveloped. The defendant further submits that the plaintiff’s prayer that he be ordered to refund her the rent she paid in her rented house since she left the matrimonial home is not a prayer supported by law as she voluntarily left the home. Further, the defendant submits that not all the money the plaintiff got from NCBA was used towards the construction of the matrimonial house and the court should be guided by the evidence that shows the plaintiff’s direct contribution through mpesa statements and receipts. Further, the defendant submits that he did not give consent for the NCBA loan and he is not aware of how the money taken up by the plaintiff was utilized. 41.The defendant submits that he is currently repaying his personal loans that he took up for the construction of the matrimonial home thus each party should bear their individual burden of repaying their respective loans. The defendant refers to the case of JMU v JBM (Matrimonial Cause E003 of 2022) (2025) KEHC 10419 (KLR) and submits that he is the primary occupant of the matrimonial home and he continued with the construction of the same. Thus he should retain the occupation of the matrimonial house as the party who has made substantial contribution towards the said property in way of construction and maintenance. He further pays the land rates of the said parcel of land to the county council of Kiambu. 42.The defendant submits that the plaintiff has not provided a list of household goods worth Kshs. 400,000/- that she purchased and thus the claim fails. He further submits that the plaintiff is free to collect the table, two banner gas cooker, water dispenser, wall unit and assorted utensils that she purchased. The defendant submits that although he allowed the Rongai property to be registered in the plaintiff’s name, the property belongs to him as he contributed the initial Kshs. 500,000/- to purchase LR No. FC/2117 of LR 9039/2 situated in Utawala whose sale led to the purchase of the Rongai property. The defendant further submits that the joska property was sold for a consideration of Kshs. 670,000/- and the plaintiff received the money from her workmate and used it to build the matrimonial house. Issues for determination 43.The main issues for determination are:-a.Whether the properties I.R. XXXX, I.R. XXXX, Kayole Matopeni Plot Number C519, Kjd/Olooitokoshi/Kitengela/XXXX, LR. No. Embu/Gangara/XXXX, Nthawa/Gitiburi/XXXX, XXXX, XXXX & XXXX, Plot No. XXXX Maringo constitute matrimonial properties.b.Whether the plaintiff contributed towards the acquisition and development of the said properties.c.Whether the plaintiff is entitled to a share of the said properties and in what proportion. The Law Whether the properties I.R. XXXX, I.R. XXXX, Kayole Matopeni Plot Number C519, Kjd/Olooitokoshi/Kitengela/XXXX, LR. No. Embu/Gangara/1564 , Nthawa/Gitiburi/3758, 3759, 3767 & 3768, Plot No. XXXX Maringo constitute matrimonial properties 44.Section 6 of the Matrimonial Property Act 2013, defines matrimonial property to include the matrimonial home or homes, any household goods in the home or homes or any other property jointly owned and acquired during the subsistence of the marriage. 45.Basically, 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. 46.In the instant case, the marriage between the parties herein commenced on 18th August 2005 through cohabitation. They lived together as husband and wife until 2022 and dissolved the marriage on 31st October 2024 and made absolute on 1st December 2024. 47.From the pleadings and testimonies of both parties, the properties I.R. XXXX, I.R. XXXXX, Kayole Matopeni Plot Number CXXXX, Kjd/Olooitokoshi/Kitengela/XXXX,LR. No. Embu/Gangara/XXXX, Nthawa/Gitiburi/XXXX, XXXX, XXX & XXXX, Plot No. XXXX Maringo were purchased during the subsistence of the marriage. Thus the said properties constitute matrimonial property. This fact has affirmed by the defendant. 48.The defendant has argued that all the properties save for the inherited land and Maringo property are matrimonial properties. The plaintiff argues that the property 1564 Gangara in Embu County was given to them by her mother in law. I have perused the record and noted that the plaintiff annexed a copy of the title deed showing the defendant as the proprietor of LR. No. Embu/Gangara/1564. The title was issued to the defendant on 5th July 2021 in the subsistence of the marriage. Therefore the same constitutes matrimonial property. Section 5 of the Matrimonial Property Act provides:-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. 49.The law is clear that the only time inherited property is excluded from matrimonial property is if it was acquired before marriage. This was stipulated in S.N. v F.M [2019] eKLR, the court held that:-The net effect of the foregoing is that any property acquired during the subsistence of the marriage, including that which is inherited forms part of matrimonial property. The only time that inherited property is excluded from matrimonial property is if it was acquired before marriage. Property that is inherited during the subsistence of the marriage is not excluded from matrimonial property except if it was acquired before marriage. 50.Similarly in E.N.K v J.N.K [2015] eKLR, Musyoka J. pronounced himself thus-From the language of the said Act, there is no provision which excludes inherited property from the definition of matrimonial property. Indeed, Section 5 of the Act impliedly excludes it in the definition. According to section 5, the only time such property will not form part of he matrimonial property is where the inheritance was before the marriage. In this case, the asset in question was inherited during matrimony and therefore it forms part of matrimonial property. 51.As for the Maringo House Number 2375, the plaintiff has not provided any lease documents to show that the defendant is the owner of the lease of the premises by Nairobi City Council. It is not in dispute that the house is the property of Nairobi County Government as the registered owner. There is no evidence that the property is registered in the name of the defendant or the plaintiff. In my considered view, the plaintiff has failed to prove that the said Maringo House No.2375 is a matrimonial property in this case. Whether the plaintiff contributed towards the acquisition and development of the suit properties 52.The Matrimonial property Act under Section 7 provides:-Subject to Section 6(3), ownership of 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. 53.The law is clear herein and provides that in the event of divorce, the matrimonial property is divided between the spouses according to the contribution of each spouse. 54.What then amounts to contribution? Section 2 of the Act defines “contribution” as monetary and non-monetary and includes:-a.Domestic work and management of the matrimonial homeb.Child carec.Companionshipd.Management of family business or property ande.Farm work. 55.The Court of Appeal enunciated this principle in the case of Civil Appeal No. 142 of 2018 in C.W.M. v J.P.M [2017] eKLR:-“….parties are of equal worth and human dignity, whatever their station in life. To the issue before us, it is obvious the appellant having being married for 18 years made some contribution to the family of the respondent at the time of such overture. In our view, that contribution, be it domestic work and management of the matrimonial home, childcare or companionship falls within the definition of contribution under the Act.” 56.The Supreme Court in the case of JOO v MBO & 2 Others (Petition 11 of 2020) [2023] KESC 4(KLR) (27 January 2023) (Judgment) enunciated the principle of equality and equity during matrimonial property distribution as follows:-Article 45(3) of the Constitution was intended to promote fairness in matrimonial property distribution at the point of dissolution. Equality in that context meant equitable entitlement based on demonstrated contribution, not automatic entitlement to half of the property. Marriage alone did not confer co-ownership or vest proprietary rights.The guiding principle in matrimonial property division was contribution. A party must prove contribution monetary and non monetary to be entitled to a share. The respondent demonstrated direct financial contribution during the marriage, thus entitling her to a fair share. Courts must assess contributions on a case by case basis.Article 45(3) of the Constitution underscored equality as a composite of fairness and equity. While both spouses were entitled to equal rights at dissolution, the nature and extent of contributions varied. One party may contribute substantially more, especially financially than the other.Equity requires recognition of indirect contributions. A spouse may not have contributed financially, yet through caregiving or domestic responsibilities, created the conditions for the acquisition of matrimonial property. Such contributions, through less tangible were nonetheless significant.Equity, as applied in matrimonial property matters, emphasized fairness over quantitative measures. A party’s direct or indirect actions may amount to a substantial contribution. These may include partial payment of the purchase price; regular payments towards property acquisition; significant financial support for family expenses, enabling mortgage payments; management of the household to ease the financial burden on the earning spouse; and childcare and domestic responsibilities that support the earning spouse. 57.The plaintiff testified that she contributed financially to the construction works of the matrimonial home through taking loans from Kumbukumbu Sacco, KCB Bank, Standard & Chartered and NCBA Bank. It was further argued that she received a grant from her employer which she used to construct the matrimonial home. The plaintiff annexed documents in support of her financial contribution. The respondent on the other hand argued that the plaintiff only contributed Kshs. 1,136,000/- for the said construction of their matrimonial home. 58.From the evidence of the parties, the matrimonial home sits on LR. No. XXXX/2040 (IR No. XXXX) which land was purchased by the defendant at a sum of Kshs. 1,200,000/- and further fees of Kshs. 584,200/- labelled as utility payments which the defendant described as title processing fee. Both parties produced receipts and mpesa statements showing their contribution to the construction works of the matrimonial home. It is clear from the evidence that the defendant contributed a larger share directly in the purchase of the land and in the construction of the home. He indirectly supervised the construction works and called witnesses to support his participation in the construction. DW4, DW5 and DW6 supported the defendant’s evidence but also said that the plaintiff carried out a lesser share of supervising the construction works with DW5 testifying that the plaintiff made some payments to him for his services. The defendant further produced receipts showing that he carried out further developments to the matrimonial home after the dissolution of their marriage for he currently resides there. 59.As regards, the property LR. No. XXXX/IR No. XXXX, the record shows that the defendant paid the purchase price of the land and the title processing fees. Both parties testified that the land has not been developed. According to the plaintiff, the property in Rongai being Kjd/Olooloitikoshi/Kitengela/XXXX was bought by herself for a consideration of Kshs. 500,000/- after she sold a piece of land in Utawala for Kshs. 1,400,000/- out of which she used Kshs. 400,000/- to construct the matrimonial home and Kshs. 500,000/- to purchase the plot in Joska. She annexed a title deed solely registered in her name. The plaintiff did not annex any proof of payment or any sale agreement of the said transaction that led to the purchase of the said property. However from the perusal of the record, the parties herein entered into a sale agreement dated 17th October 2011 with one Lily Nyambura Githiiyi for the purchase of a plot known as FC/2117 of LR XXXX for a consideration of Kshs. 500,000/- which the defendant paid for on 17th October 2011 as demonstrated in his bank statements on page 344 of his bundle of documents dated 16th May 2025. The defendant further told the court that he sold the said property to Mary Gatwiri at a consideration of Kshs. 1 million and used the proceeds to purchase the two properties as well as the Rongai property and LR. No. XXXX known as the Joska property. 60.The record further shows that the plaintiff and her workmate, one Sylvester Musembi Musyoka, entered into a sale agreement dated 4th August 2020 for the purchase of the Joska property for a consideration of Kshs. 670,000/- and the proceeds were used to construct the matrimonial home. The defendant testified that the property had no registration documents and the plaintiff’s workmate was the only one who expressed interest in purchasing the property. The plaintiff testified that she purchased the said property solely and she used the proceeds to construct the matrimonial home. The court is inclined to believe that facts as presented by the defendant as he showed a chronological order through evidence as to how the money was received from purchasing and selling of the land FC/XXXX of LR XXXX and use of the proceeds to purchase the two properties. 61.In regards to the Embu plots being LR. No. Nthawa/Gitiburi/3759, 3758, 3767 and 3768, the plaintiff testified that she did not contribute financially to their purchase. Further for property LR. No. Embu/Gangara/1564, the plaintiff testified that she planted trees, miraa and fruits on the said parcel. She further supported her contentions by annexing pictures of the said trees. Regarding property Kayole Matopeni Plot C519, the plaintiff testified that she did not contribute to its purchase but only escorted the defendant to buy it. She further stated that the defendant had developed it over the years and it currently has 18 single rooms which go for Kshs. 2,500/- - Kshs. 3,000/- per unit. 62.It is further evident from the record that the defendant paid the school fees for the children singlehandedly. Further, it is clear that both parties took care and raised the children. The defendant did raise the issue that he took care of the children singlehandedly at times when the plaintiff was pursuing further studies. The defendant did not give the period the plaintiff took in her further studies. Even if the plaintiff pursued further studies, the fruits of the said studies in way of promotion, better job and elevated earnings was meant for the benefit of the family and not for the plaintiff as a person. It is evident that the plaintiff still spent the available time during her studies to look after her children and to give companionship to her husband in the usual multi-tasking spirit of parents and wives. She further testified that she used to go to the field for work on occasion for about two-three days once in a while. That being the position, the plaintiff spent time with her family, thus caring for the children and giving companionship to her husband. The case of White v White (200) UKHL 54 is instructive on the issue of non-monetary contributions. The court alluded to the greater awareness of the value of non-financial contributions to the welfare of the family, and the increased recognition that, by being home and having and looking after young children, a wife may lose forever the opportunity to acquire and develop her own money earning qualifications and skills. 63.It therefore follows that the plaintiff contributed both directly and indirectly to the construction of the matrimonial home and indirectly to the acquisition of properties LR. No. XXXX/IR No. XXXX, Kayole Matopeni property Plot C519, Kjd/Olooloitikoshi/Kitengela/XXXX,LR.No.Nthawa/Gitiburi/XXXX, XXXX, XXXX and XXXX LR. No. Embu/Gangara/1564 which constitute and are hereby declared as matrimonial properties. 64.As for the purchase of household items worth Kshs. 400,000/-, from the record, the plaintiff has not annexed any receipts or a detailed list to show that she purchased household items worth Kshs. 400,000/-. This claim fails for lack of proof. Whether the plaintiff is entitled to a share of the said properties and in what proportion 65.Section 9 and 14 of the Matrimonial Property Act and Article 45 of the Constitution are instructive herein. 66.Section 9 of the Matrimonial Property Act provides:-Where one spouse acquires property before or during the marriage and the property acquired during the marriage does not become matrimonial property, but the spouse makes a contribution towards the improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made. 67.There is a presumption of law, Section 14 of the Matrimonial Property Act 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; andb.In the names of the spouses jointly, there shall be a rebuttable presumption that their beneficial interest in the matrimonial property are equal. 68.The Constitution of Kenya 2010 under Article 45(3) states that:-Parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of marriage. 69.This principle is echoed by Section 3(2) of the Marriage Act and further recognized by the Court of Appeal in the case of Agnes Nanjala William v Jacob Petrus Vander Goes No. 127 of 2011 (UR) where the Court of Appeal observed that Article 45(3) of the Constitution gives parties to a marriage equal rights before, during and after the marriage ends. 70.From the evidence of the parties and references to the law herein, it has been established that both parties contributed to the acquisition and developments of the matrimonial property I.R. XXXX. The plaintiff contributed non-monetarily and monetarily towards the acquisition of the said property whereas the respondent bought the suit property. The same case applies to I.R.XXXX which was acquired together with I.R.XXXX but which is not yet developed. These properties were acquired during the subsistence of the marriage and are both registered in the joint names of the parties. The properties are hereby declared matrimonial properties. 71.The defendant admitted selling the Kayole/Matopeni property known as C519 to his brother Nelson Runji without seeking spousal consent from the plaintiff. This property has been declared matrimonial property. The defendant produced an agreement dated 7th day of June 2023 witnessed by his friend and his own father at a consideration of Ksh.700,000/-. According to the defendant, transfer of the property which is developed with 18 rental rooms is registered in the name of the defendant. The defendant said that he is yet to transfer the property to his brother. Section 12 of the Matrimonial Property Act, 2013 prohibits sale or transfer of a matrimonial property by one spouse without the spousal consent of the opposite spouse. Section 28 of the Land Registration Act treats spousal rights over matrimonial property as overriding interests. In the case of Kadzo Mkutano v Mkutano Mwamboje Kadosho & 2 Others (2016) eKLR, it was held: -Spousal consent is required before a spouse can sell matrimonial property. In the absence of such consent, the sale becomes null and void. 72.Section 93 of the Land Registration Act provides that disposition of matrimonial property requires spousal consent. The legal effect of lack of such consent renders the sale null and void. The agreement of sale of L.R. Kayole/Matopeni/C519 between the defendant and Nelsen Runji dated 7th day of June 2023 is hereby declared null and void for want of spousal consent. As such, the said property is a matrimonial property available for division between the parties. 73.As regards L.R. No. Kjd/Olooloitokoshi/Kitengela/XXXX, the defendant has given sufficient evidence to support the fact that he contributed to its acquisition. The property is registered in the name of the plaintiff. As such, the property is a matrimonial property registered in the name of the plaintiff who holds it in trust for the defendant. 74.The defendant argued that the L.R. Embu/Gangara/1564 was given to him by his father during the subsistence of the marriage. Property given by a parent to a married couple and which is later developed by the spouses together so extensively is for all intents and purposes a matrimonial property save that the shares for each party will be determined based on contribution in the developments. The plaintiff testified that both parties have developed the land, dug a borehole, installed piped irrigation, planted “Miraa” and Muguka trees with income of about Ksh.30,000 per week. The plaintiff solely prepared the seedlings,nurtured and watered them. Her contribution was involvement in physical labour for the land that is now producing good income for the parties. This contribution has indeed made the land fruitful. This property is registered in the name of the defendant and is hereby declared a matrimonial property. In that the defendant holds it in trust for the plaintiff. 75.As regards the issue of the outstanding loan by NCBA Bank of Kshs. 1,654,821/- by the plaintiff, it is my considered view that both the parties took out loans for the purposes of constructing their matrimonial home. It would be thus unjust and unfair to subject the defendant to repay the plaintiff’s loan when he contributed significantly to the acquiring and development of the matrimonial home. He also took out loans for purchase and construction of the property. In regard to the issue of rent claimed by the plaintiff for the years she has rented accommodation for herself and the children, I am of the view that the funds spent over the years by a particular spouse is not matrimonial property. The defendant was paying school fees for the children using funds which he is not claiming and which would be difficult to compute. I decline to grant refund of such monies. 76.I have considered the evidence of both parties in this suit and considered their submissions on both their monetary and non-monetary contributions. I hereby give the following orders: -a.That the plaintiff is entitled to 40% of share of the matrimonial properties while the defendant gets 60% share.b.That the parties shall agree and appoint a valuer to come up with the valuation reports of the properties and share the costs.c.Alternatively, each party is at liberty to appoint a valuer of their choice to whom each party will meet the costs of their valuer. 77.This being a family matter, each party shall meet their own costs of this suit. 78.It is hereby so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 21ST DAY OF MAY 2026.F. MUCHEMIJUDGE