[2022] KEHC 1763 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

FAMILY DIVISION CIVIL SUIT NO. 52 OF 2014 (O.S)

IN THE MATTER OF THE MATRIMONIAL PROPERTY ACT 2013.

MNN..............................................................................................................APPLICANT

VERSUS

GMN.........................................................................................................RESPONDENT

AND

SNN...............................................................................................INTERESTED PARTY

JUDGMENT

1. The Applicant filed an application via Originating Summons dated 13th August 2014 under section 2, 6, 7, 9 and 17 of the Matrimonial Property Act, 2013 and section 93(3) of the Land Registration Act and all other enabling provisions of the law. In it the Applicant is seeking orders that;

a. The court declares the movable and immovable properties listed below to have been acquired by the parties jointly and held by the Respondent in trust for the Applicant;

i. L.R.xxxx/xxx, situate at Kileleshwa Nairobi

ii. L.R.xxxx/xxx, situate at Kileleshwa Nairobi

iii. Motor vehicle KBU xxxS toyota prado

iv. Shares in [Particulars Withheld] Limited

v. Shares in [Particulars Withheld] Development Company Limited

vi. Karai/Gikambura/xxxx (or any subdivisions)

vii. Ancestral properties inherited and developed jointly at Gikambura and Tinganga

b. The court declare the applicant is entitled to 50% of the properties listed above or any other proportion as it may deem fit.

2. The application is premised on grounds on the face thereof and a supporting affidavit sworn by the Applicant on the same day. In it, she deposed that she got married to the Respondent in 1968 but their union was formalized in 1988 and in their union, they were blessed with five (5) children one of whom passed on. She averred that her marriage to the Respondent was dissolved in 2014 vide Milimani chief Magistrates Divorce Cause No. 36 of 2010. It was her contention that she made both monetary and non-monetary contribution including loans, child care, companionship, overseeing entire acquisition and formation, management and marketing of various family enterprises including National oil products limited, running own businesses including Le Purple steak, acquisition and improvement of matrimonial home and exclusively maintaining and furnishing the home since 1974.

3. The Applicant averred that their matrimonial home situated on LR No. xxxx/xx within Kileleshwa, Nairobi was acquired by herself and the Respondent in 1974. That together they developed the matrimonial home jointly and extended a lot of monies in re developing it. In doing so, she claimed that she took numerous loans and advances to purchase and develop properties to boost the Respondent’s businesses, which were not doing well. Further that they used the same property to acquire various loans for other developments in the family companies [Particulars Withheld] LIMITED and mainly [Particulars Withheld] PRODUCTS LIMITED. She further contended that the property in which the matrimonial home is situated was subdivided into two portions on or about 2011 and one portion subsequently transferred to a company called East Haven Development Company Limited. Also that the matrimonial home being L.R. No. xxxx/xxx is still in the name of the Respondent

4. She stated that the Respondent, during the divorce proceedings, confirmed that he had acquired a motor vehicle registration No. KBU xxxS, Toyota prado and that he was receiving rent from the house they had put up for her mother in-law at GIKAMBURA in KARAI/GIKAMBURA/xxxx, property she claimed to have helped develop. She further stated that they inherited a big chunk of land at Tinganga, which has a lot of coffee that the Respondent harvests and receives revenue from. Lastly that the Respondent receives rent of over Kshs. 3,000,000/- per month from the apartments constructed on LR. No. xxxx/xxx, which he single-handedly squanders.

5. In response, GMN swore an affidavit dated 8th October 2014 in which he deposed that he met the Applicant in 1968 but only married her in 1985 after he separated from his customary law wife, SNN. He stated that he married SN in 1954 and acquired L.R. No. xxxx/xx during the currency of marriage to his first wife. He refuted claims that the Applicant contributed in any way towards the development of the said property or that she is a shareholder and/or director of [Particulars Withheld] products Limited and stated that he and his first wife are the principal shareholders of [Particulars Withheld] Limited. He contended that he and the Applicant resided in [Particulars Withheld] estate while his first wife lived in the [Particulars Withheld] property. He also contended that the Applicant worked for [Particulars Withheld] as a permanent and pensionable employee and thus could not manage and run the family and businesses. He further stated that [Particulars Withheld] Development Company was a development vehicle used to develop and sale houses based on a joint venture with [Particulars Withheld] Care Limited.

6. Regarding the Gikambura property, he averred that he inherited the property and single handedly developed the property for his mother and after her death leased it and later gifted it to the children of his first wife. He also contended that he purchased Toyota Prado KBU xxxS in 2014 on loan from [Particulars Withheld] mortgage by Rafiki Miero Finance Bank, just a month before finalization of the divorce. He stated that the Applicant has several vehicles which she wilfully concealed from the court.

7. He denied receiving Kshs. 3,000,000 in rent from the apartments constructed on LR No. xxxx/xxx and stated that the apartments were sold by the Development Company he jointly owned with another party. He also denied planning to tear down the Kileleshwa house where he claimed to reside. It was his contention that he purchased Kiambu Municipality Block x, LR No. Ngong/Ngong/xxxx and LR No. 36/III/xxxx Eastliegh prior to marrying the Applicant and they are registered in the Applicant’s name thus they formed part of the matrimonial property, which the Applicant concealed from court.

8. On 1st October 2014, SNN was enjoined in the suit as an interested party. She swore an affidavit dated 20th April 2016 in opposition to the Application. She averred that she and the Respondent got married in 1954 under kikuyu customary law and were blessed with eight children. That on 3rd March 1970, she and the Respondent incorporated [Particulars Withheld] Products Limited. That on or about 1974 through a loan from old mutual, they acquired LR No. xxxx/xx in Kileleshwa, Laikipia road which has now been subdivided into LR xxxx/xxx and LR No. xxxx/xxx. That in the same year they incorporated [Particulars Withheld] Limited from proceeds of [Particulars Withheld] products Limited. She also averred that she lived and raised her children in the Kileleshwa home since 1974 and that she came to know the Applicant in 1985 when she married the Respondent. She averred that the Applicant lived in Kimathi estate and in 1988 joined the interested party in the matrimonial home.

9. GN filed a counter claim on 20th April 2016 seeking orders inter-alia that;

a. The Court declares the following movable and immovable property matrimonial property and the same be divided between the Applicant and the Respondent;

i. 2 parcels of land in Rongai

ii. 1 parcel of land in Kiambu

iii. 31/2 acres of land in Juja

iv. a plot in Juja

v. 1 plot in Eastleigh

vi. 4 motor vehicles

vii. Restaurant business at Westlands Nairobi

b. the court declare the he is entitled to 50% of the above listed properties.

10. GN in his supplementary affidavit dated 28th September 2016, contended that in 1974 when he and his first wife bought the Kileleshwa property, the Applicant was living in Ngara. That he and the Applicant were just acquaintances in 1968 and that they had their first child in 1978 and later married the Applicant in 1985. He averred that he bought all the property in the counterclaim and registered them in the Applicants name. Further that the Kiambu Property being Kiambu Municipality Block x/xxx was a family gift from their long-term friends.

11. In reply, MNN filed a supplementary affidavit dated 5th September 2016 in which she denied owning the properties alleged or that they were acquired by joint efforts. She asserted that the Kiambu property was a gift from one MW to her and did not form part of matrimonial property. She deposed that when she met the Respondent in 1968 he had nothing and she was working. That she helped him run a bus business. She further deposed that she and the Respondent took out a mortgage from old mutual to buy the Kileleshwa property and that at no point did she ever meet the Interested party, nor have knowledge of a subsisting marriage.

12. In her witness statement dated 5th December 2017, the interested party reiterated the contents of her affidavit and maintained that she is the first wife of the Respondent and that the Kileleshwa property is jointly owned by her and the Respondent.

13. The Respondent filed yet another supplementary affidavit sworn on 2nd May 2018 reiterating contents of his previous affidavits.

14. The application was canvassed by way of viva voce evidence. The Applicant filed submissions dated 4th December 2019 in which she submitted that she married the Respondent on 27th March 1968 and they lived in Eastleigh before they moved to Kimathi estate. She stated that the Respondent did not at any time intimate that he was already married and she believed him to be single. She pointed out that the Respondent in their divorce proceedings, acknowledged that he had met her in 1968 and married her in 1969.

15. Pertaining to the acquisition of LR No. xxxx/xx, now LR No. xxxx/xxx and xxxx/xxx, it was her submission that together with the Respondent they purchased the property on 28th November 1974 which was registered in the Respondent’s name. That they obtained a mortgage from [Particulars Withheld] Mutual Life Assurance Society (Old Mutual) where she had a savings account and where she introduced the Respondent. That she sourced for the property from one AC whom she knew before. That this enabled them to obtain a loan to acquire the Kileleshwa property. Further that she helped the Respondent start the [Particulars Withheld] Company in 1970 and guaranteed a loan of kshs 3000 for the Respondent. Further that she held a share in the company under the name SNN. She also stated that she continued taking various loans in support of her family and several development agendas such as paying off the mortgage on the property to save it from auction.

16. As far as contribution goes, it was her contention that she made both direct and indirect contributions towards the acquisition and maintenance of the above listed properties. She contended that she single handedly paid school fees for her children and upon retirement started a business [Particulars Withheld] Steak House’, which flourished until the Respondent mismanaged it. The Applicant stated that the Respondent bought motor vehicle Registration KBU xxxS from proceeds from rental units in Kileleshwa, which the Respondent admitted during the divorce proceedings and were registered in the name of [Particulars Withheld] Development Company Limited. It was also her submission that upon cross examination the Respondent claimed his company [Particulars Withheld] Limited owned 27 flats and she is laying claim to 20% shares in the Company

17. The Applicant submitted that she is entitled to 50% of the matrimonial properties because she was front and center in their acquisition. She relied on the cases of LNN v PNM (2017) eKLR, FS v EZ (2016) eKLR, section 93 Land Registration Act and Section 6, 9and14 Matrimonial Property Act.

18. On the counterclaim, it was her submission that the Respondent had not produced any evidence to demonstrate how he was entitled to the property or any evidence of ownership of those properties by the Applicant

19. She also submitted that the interested party has no claim as she had not advanced any application or claim before court. She stated that the Respondent on his own admission fell out with the interested party in 1970 whereupon she travelled to the USA and only reunited with him in 2005 in the USA. She contended that the daughter who testified on behalf of the interested party did not follow proper procedure and that the claim that the Respondent was married to the Interested party in 1954 and their last born children were born in 1972 and 1973 could not suffice because he married the Applicant in 1968. She also contended that the interested party did not produce any evidence in support of her claims other than one birth certificate for one Edward Munene born in 1963.

20. In rebuttal the Respondent filed submissions dated 12th February 2020 and asserted that he met the Applicant in 1969. That they sired the first child in 1976 but they officially got married in 1985. That during their cohabitation and subsequent marriage they lived in Eastliegh, Kimathi estate and later in 1988 in Kileleshwa on LR No. xxxx/xxx. He averred that he had another wife, who he married in 1954 under Kikuyu Customary Law and they were blessed with 8 children, all born between 1955 and 1773 and with whom he lived in Kileleshwa.

21. On whether the properties in dispute were acquired during the subsistence of his marriage to the Applicant, he relied on section 2, 6 and 7 Matrimonial Property Act. He submitted that LR No. xxxx/xx, now LR No. xxxx/xxx and xxxx/xxx, was acquired in 1974 and that the Applicant failed to demonstrate how being a member of Old Mutual helped him acquire the loan since she was not even his guarantor. He asserted that he obtained a loan and signed a loan agreement with the bank and had produced loan repayment receipts and a certificate of completion dated 1986, just a year after he married the Applicant. It was his contention therefore that he acquired the matrimonial home prior to his marriage to the Applicant and that the Applicant did not contribute to its acquisition.

22. He denied that the Applicant made any improvements to the Kileleshwa property and stated that she only moved into the property in 1988 when it was not vacant. It was also his contention that their union broke down in 2004 and the apartments on LR xxxx/xxx were constructed in 2008 thus the Applicant is not entitled to any shares thereof.

23. He refuted the claims that the Applicant is the “SNN” appearing in the articles of association for [Particulars Withheld] Company and [Particulars Withheld] Limited and stated that the signature appended in those documents is different from the one in her other documents. It was his submission that [Particulars Withheld] Limited was incorporated in 1974 prior to his marriage to the Applicant but conceded that he allocated the Applicant some shares. He was not opposed to the Applicant retaining those shares as her indirect contribution towards bearing him children.

24. As far as Karai/Gikambura/xxxx property is concerned, it was the Respondent’s submission that the Applicant has no claim to it because he inherited it in 1970 and it does not form part of the matrimonial property. He relied on the case of CWM v JPM (2017) eKLR.

25. On the shares in East Haven Development Company Limited, he submitted that the company was a joint venture between him and Villa Care Ltd which was formed after the Applicant had petitioned for divorce and thus she did not contribute to its formation in any way. Further that he bought motor vehicle registration No. KBU xxxS Toyota Prado after they had finalized the divorce and thus it did not form part of the matrimonial property. To buttress his assertion he relied on PNN v ZWN (2017) eKLR.

26. Lastly he submitted that the properties referred to in his cross petition are all matrimonial property as they were acquired during the subsistence of marriage and he contributed to their acquisition directly and indirectly.

27. The interested party filed submissions dated 10th February 2020 in which she submitted that she is the first wife of the Respondent and that they got married in 1954 under Kikuyu customary law and therefore has an interest in the matrimonial property. She relied on section 8 and 17 of the Matrimonial Property Act.

28. It was also her submission that she has proprietary interest in the impugned properties by virtue of her contribution both directly and indirectly and stated that she is indeed the ‘SNN’ refered to in Nairobi Oil Company articles of association and [Particulars Withheld] Limited and that it is her signature appended thereto. Further, she submitted that KARAI/GIKAMBURA/xxxx and TINGATINGA properties were inherited from the Respondents late father and the same had already been transferred to her children and do not form part of matrimonial property between the Applicant and the Respondent.

29. Lastly it was her submission that to award the Applicant 50% of the impugned properties would amount to denial of her rights to property which she had proprietary interest in.

30. I have carefully considered the evidence that was placed before this court by the parties to this case. I have also considered the submissions made by the learned counsel and also the authorities that they relied upon in support of their respective cases. The main issues for determination are essentially;

i. When the applicant and the Respondent got married.

ii. Whether the impugned properties form part of the matrimonial property between the Applicant and the Respondent and are capable of being divided.

iii. Whether the Applicant and Respondent contributed to acquisition and development of the impugned properties

iv. Whether the Applicant and Respondent are each entitled to 50% of the impugned properties

31. Some facts are not in dispute in this case. It is not in dispute that the Applicant and the Respondent were married and that their marriage ended in a divorce in 2014, vide Milimani Chief Magistrates Divorce Cause No. 36 of 2010. It is also not in dispute that aside from the children born out of the relationship between the Applicant and the Respondent, the Respondent has 8 other children with the Interested Party.

32. On the first issue of the applicable period of their marriage what is disputed by the parties is the year in which the Applicant and the Respondent entered into marriage. The Applicant testified that she met the Respondent in 1968 and they got married in 1969. The Respondent however while admitting that they met in 1968 disputed the allegation that he married the Applicant in 1969 and stated that he did not marry her until 1985. He described his relationship to the Applicant between 1968 and 1985 as an adulterous one that did not amount to a marriage even though they bore a child together in 1976.

33. It is not in dispute that the marriage between the Applicant and the Respondent was formally solemnized on 23/3/1985 as evinced by the certificate of marriage serial No.xxxxx. However, what this Court sought to establish is whether the Applicant and the Respondent lived as husband and wife prior to the above date. The evidence of the Respondents has inconsistencies on when he met the Applicant and when they started a relationship. The divorce proceedings indicate that he deposed that he met the Applicant in 1968 and married her in 1969. He testified before this court that he first met the Applicant in 1976 but upon cross-examination he stated that he met the Applicant in 1968. He however asserted that they associated only as acquaintances till they got married in 1985.

34. Marriage is a legal union of a couple as husband and wife. The blacks law dictionary elaborates the essentials of a valid marriage as legal capacity, mutual consent and actual contracting in the form of prescribed law. The Applicant and the Respondent met in 1968. It is the Applicants case that they begun a relationship immediately and started living together as husband and wife. The Respondent on the other hand denies this claims and contends that they were only acquaintances who had an adulterous relationship that bore them a child in 1976. That they got married in 1986. It should be noted however that the Respondent in his replying affidavit in the divorce proceedings noted that he met the Applicant in 1968 and they got married in 1969 and started living together.

35. The Applicant also asserted that they got married under Kikuyu Customary Law, marriage of which was celebrated in her parents’ home. The Applicant did not bring any evidence in support of this claim. The Respondent on the other hand denies this claim and asserts that prior to 1985, they were mere acquaintances and he did not at any time participate in any traditional form of marriage to the Applicant.

36. The Interested party on the other hand relies on the Marriage certificate and asserts that a marriage between the Applicant and Respondent only begun in 1985 and that before that the interested party resided with the Respondent prior and thus it was impossible for him to have been married to the Applicant.

37. I have recourse to the decision in Gituanja Vs Gituanja (1983) KLR 575, where the Court of Appeal held that the existence of a customary marriage is a matter of fact, which must be proved with evidence. The Court found that to prove Kikuyu customary law, there should be evidence of:-

a. Capacity; considering age, physical and mental conditions and marital status;

b. Consent of family

c. Ceremonial slaughter of ram “Ngurario”

d. Bride price “ruracio”

e. Commencement of cohabitation

38. As stated above the onus lies with the Applicant to prove on a balance of probabilities that she and the Respondent indeed got married under Kikuyu customary law. The Applicant in this case neither called any witnesses in support of her claim nor produced any evidence showing that indeed the “ruracio” took place as claimed. This court therefore has no basis to find on a balance of probabilities that a traditional marriage ceremony took place between the Applicant and the Respondent.

39. Be that as it may, it is evident that the Applicant and the Respondent had a substantive relationship between 1968 and 1985 prior to officiating their marriage. Both the Applicant and the Respondent admit to living together at some point in Eastleigh, Kimathi Estate and finally Kileleshwa.

40. Aside from the form of marriages envisioned under the marriage act, parties can be presumed to be married based on their actions. Section 2 of the Marriage Act defines cohabitation as “living in an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage.” The Blacks Law Dictionary on the other hand defines cohabitation as a “marriage by habit and repute” and describes it as an irregular marriage created by cohabitation that implies mutual agreement to be married. The Court of Appeal in Phylis Njoki Karanja & 2 others Vs Rosemary Mueni Karanja & Another (2009) eKLR, while describing the presumption of marriage held as follows;

“Before a presumption of marriage can arise a party needs to establish long cohabitation and acts of general repute; that long cohabitation is not mere friendship or that the woman is not a mere concubine but that the long cohabitation has crystallized into a marriage and it is safe to presume the existence of a marriage. We are of the view that since the presumption is in the nature of an assumption it is not imperative that certain customary rites be performed”

The same court in the case of PKA vs MSA (2014) eKLR held that:-

“...long cohabitation as man and wife gives rise to a presumption of marriage ...only cogent evidence to the contrary can rebut such a presumption.The presumption is nothing more than an assumption rising out of long cohabitation and general repute that the parties must be married irrespective of the nature of the marriage actually contracted.”

41. In the present case both parties admitted to having cohabited with each other at some point. They however differ on whether the same was on the basis of a marriage as the Applicant asserts or just an adulterous relationship as the Respondents insists. They got a child in 1976. Section 119 of the Evidence Act provides that:

“The court may presume the existence of any fact it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of a particular case.”

42. The alleged period of meeting was in 1968 and they officially solemnized their marriage in 1985. Based on the adduced evidence, circumstances therein and the above analysis, this court is satisfied that a presumption of marriage can be made. There is evidence of long cohabitation and the parties also conducted themselves to be married as per their own admission and went on to have a child together. It is therefore safe to conclude that the relationship between the Applicant and Respondent in the period running from 1968 to 1985 can be presumed to have been a marriage.

43. Before moving on to the next issue, it is important to look into relationship between the interested party and the Respondent. They were both in agreement that they got married in 1954 under Kikuyu Customary Law. The Applicant however disputes this claim and contends that at no point did the Respondent inform her of any subsisting marriage when he entered into a relationship with her. She avers that she lived exclusively with the Respondent. The Applicant however acknowledges that the Respondent had other children whose mother she does not know. It is not clear how the Applicant aged only 19 years did not inquire why the Respondent being in his fifties had another family.

44. The Interested Party produced several birth certificates showing that indeed she and the Respondent share children born over a number of years. Their evidence is that they have eight (8) children together all born between 1954 and 1973. There is however no marriage certificate on record evidencing their relationship. This is a long period of time for two people to have children, one after the other, without there being an existing tangible relationship. In Support of her claim, the Interested party’s brother testified that the Interested Party and the Respondent entered into a Kikuyu customary law marriage. This court thus finds, on a balance of probabilities, that there was an existing marital relationship between the interested party and the Respondent.

45. Having established the presumption of marriage between the Applicant and the Respondent, it is now prudent to look at the impugned properties and ascertain whether they form part of their matrimonial property. The question of what constitutes matrimonial property is now well settled in law. Section 6(1) of the Matrimonial Property Act defines matrimonial property as matrimonial home or homes; household goods and effects in the matrimonial home or homes; or any other immovable and movable property jointly owned and acquired during the subsistence of marriage. What constitutes matrimonial property, must meet the definition of section 6 quoted above. From the foregoing analysis, it is clear that the Applicant and Respondents marriage began in 1968 and was later formalized in 1985. It therefore follows that the Applicant has proprietary interest in property acquired after 1968 up to the time of dissolution of their marriage being 2014.

46. The parties in this cause have disputed what comprises matrimonial properties. Through their respective claims they included the following properties:-

i. L.R.xxxx/xxx and L.R. No.xxxx/xxx, situate at Kileleshwa Nairobi

ii. Motor Vehicle KBU xxxS Toyota Prado

iii. Shares in [Particulars Withheld] Limited

iv. Shares in [Particulars Withheld] Development Company Limited

v. Karai/Gikambura/xxxx (Or Any Subdivisions)

vi. Ancestral properties inherited and developed jointly at Gikambura and Tinganga

vii. 2 parcels of land in Rongai

viii. 1 parcel of land in Kiambu

ix. 3 ½ acres of land in Juja

x. a plot in Juja

xi. 1 plot in Eastleigh

xii. 4 motor vehicles

xiii. Restaurant business at Westlands Nairobi

To determine what constitutes matrimonial property, whether they are capable of being divided and the mode of distribution, I will examine the circumstances of the acquisition of each property.

47. I have considered the rival arguments by all sides on the issue of contribution. I am alive to the fact that each case must be determined based on its own peculiar circumstances. Indeed the Court of Appeal in TKM vs SMW (2020) eKLR stated as follows;

We bear in mind the edict in Muthembwa V Muthembwa (220) 1EA 186, and many other decisions reminding the courts that in assessing the contribution of spouses in acquisition of matrimonial property, each case must be dealt with on the basis of its peculiar facts and circumstances but bearing in mind the principle of fairness.

48. Ownership of matrimonial property is captured in Section 7 of the Matrimonial Property Act as follows: -

“Subject to section 6 (3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”

Contribution towards the acquisition of matrimonial property is defined under Section 2 of the Matrimonial Property Act, 2013 in the following terms: monetary and non-monetary contribution including;—domestic work and management of the matrimonial home, child care, companionship, management of family business or property and farm work.

49. The effect of the foregoing provision of law is that ownership of matrimonial property vests in the husband and wife/wives according to their contributions towards the acquisition. It is therefore possible for spouses to own certain properties together but not in equal shares. In the event of a divorce, the court would look at what each party brought to the table for the purposes of the distribution of such properties. See NWM Vs KNM (2014) eKLR, White Vs White (2000) UKHL 54 in which the court stated;

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…. Matrimonial property must be effected having due regard to the principle of equality.

50. The matrimonial home is situated on LR xxxx/xxx in Kileleshwa Nairobimeasuring approximately ¾ acres and is the current residence of the Applicant and her 3 grandchildren. All parties in this matter agreed that the property was acquired in 1974 and charged to Old Mutual Bank. It was completed in 1981 and it is not in dispute that the property is registered in the Respondents name. Section 2 of the Matrimonial Property Act defines matrimonial home as ‘property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home and includes any other attached property.’ From the material placed before me, I am satisfied that this property is where all the parties, including the Interested Party, lived and thus is a matrimonial home according to the definition in Section 2 of the Act.

51. The Applicant testified that she made both monetary and non-monetary contribution towards the acquisition of the matrimonial home being LR xxxx/xxx Kileleshwa. This claim was disputed by both the Respondent and the Interested Party on the basis that the Applicant was not married to the respondent at the time of the acquisition of the property. Having established the existence of marriage, I will look at the merits of the claims of contribution made. The Applicant brought receipts showing that she was a member of old mutual bank before the property was acquired. It was her contention that she introduced the Respondent to the bank enabling him to acquire the loan to buy the property. Further that she helped him settle the mortgage on the property. She also claimed to have sourced for the house from a family friend. She produced various receipts showing that she took several loans over the years but it is not clear to what end the monies were put. The Respondent denies this claims on the basis that the loan agreement was in his name and payment receipts were made out only to his name and not the Applicant’s. He argues that as a mere typist for [Particulars Withheld] when he acquired the property, the Applicant could not have afforded to help him build his companies or acquire the property.

52. The Interested Party also claims proprietary interest in the property and contends that she furnished the property and was front and center in ensuring it was developed.

53. Additionally, the Applicant contended that she improved the home and contributed further by singlehandedly taking care of her children and carrying out household chores. From the record it is clear that the applicant was gainfully employed when she met the Respondent. The Applicant up to now lives with her late daughter’s children whom she is raising inside the matrimonial property. I am satisfied that based on the evidence produced, the Applicant made some monetary and non-monetary contribution towards the acquisition of their matrimonial home.

54. On the other hand, LR xxxx/xxx measuring about half (½) an acre has apartments developed on it. The Respondent contends that he entered into a joint venture agreement with [Particulars Withheld] Care Limited owned by one Mr Ojijo that culminated in the incorporation of [Particulars Withheld] Development Company which constructed the 27 apartments in 2012 after he and the Applicant had separated. Further that there is an ongoing dispute with [Particulars Withheld] Care Property regarding the flats. He however did not elaborate on the nature of the dispute.

55. The Applicant on the other hand contends that since the property was hived from their matrimonial home she has proprietary interest in the same. The record before court indicates that the Respondent admitted to owning six units in the flats from which he earns rent. As mentioned above, what amounts to matrimonial property is well settled in law. The property having been acquired during the subsistence of marriage between the Applicant and the Respondent, the property is part of matrimonial property.

56. It is also not clear how many shares the Respondent owns in East Haven Development Company ltd and thus this court cannot make any findings on them in accordance with Section 17 of the Matrimonial Property Act. In any event, this court stands guided by the decision in the case of Eunice Kyalo Muthembwa V. Cosmos Muthembwa (2014) eKLR where the Court ruled that shares in a limited liability company are not subject to division as matrimonial property, and should be subjected to Company Law. only what is due to the Respondent can then be considered for distribution between him and his wives.

57. Regarding motor vehicle registration No. KBU xxxS Toyota Prado, it is the Applicant’s case that the vehicle was bought prior to the divorce being finalized. The Respondent on the other hand denies this claim and asserts that he bought the vehicle after their divorce was finalized in 2014 on a loan secured by Rafiki Micro Finance Bank. The divorce proceedings were instituted in 2010. From the record it is clear that the relationship between the Applicant and the Respondent had deteriorated significantly leading to the Respondent moving out of their matrimonial home in 2010 and divorce petition being filed.

58. The Applicant has not tendered any evidence of her contribution to the acquisition of the motor vehicle. Her only claim is that the vehicle was purchased using proceeds of their matrimonial property, though this claim was also unsupported. The applicant further contends that she does not know when the vehicle was purchased but that she found out of its existence during the divorce proceedings. Considering the definition of contribution, this court finds that there was no evidence that the Applicant contributed to the acquisition of toyota prado KBU xxxS.

59. As far as [Particulars Withheld] limited is concerned, the CR12 filed in court indicates that the Applicant owns 20% shares therein. The Respondent also concedes as much and lays no claim to the Applicant’s shares. The Applicant however contends that she carried out various activities including pig farming in [Particulars Withheld] Limited where the Respondent is the sole director. From correspondence with the Registrar of Companies it is clear that the [Particulars Withheld] Limited has 4 shareholders 2 who are Directors being the Applicant and one “SNN” and 2 other who are not directors. The Respondent is the majority shareholder holding 5000 shares and “SNN” holding 1000 shares. A cursory look at the Articles of Association reveals that this court cannot ascertain the ownership of the shares therein because both the Applicant and the Interested Party claim the name SNN. Ownership of the company shares can only be ascertained under the Company Law in the appropriate forum.

60. Regarding the inherited properties being Karai/Gikambura/xxxx and Tinganga, the Applicant stated that she contributed to the development and care of the properties but she has not produced evidence in support of the claim. The Respondent on the other hand refuted claims of contribution by the Applicant and stated that he single handedly built a house for his late mother and upon her death began renting out the premises. He also testified that he inherited the properties from his late father and that the properties were no longer in his name as he had gifted them to the children he got with the interested party. This testimony was not rebutted or challenged by the Applicant upon cross-examination. This court is therefore satisfied that the property is not in existence and is not capable of being divided in this proceeding as matrimonial property.

61. The Respondent in his counterclaim contended that the Applicant has 2 parcels of land in Rongai, a plot in Juja, 3 ½ acre land in Juja and 4 motor vehicles registered in her name that formed part of the matrimonial property. He however gave no description of the properties and only attached a green card for LR Ngong/Ngong/xxxx. He attached no other evidence in support of his claim. However, it is not clear which property the green card refers to and furthermore whatever property it is, is currently held by Magrand Investments Limited. The Applicant denied knowledge or ownership of any such property. In the circumstance, this court finds no basis to hold that the aforementioned properties form part of the matrimonial property.

62. The Respondent further laid claim on one parcel of land in Kiambu. He attached a green card showing LR Kiambu Municipality Block x, parcel xxx measuring approximately 0. 1466Ha. He claimed that the property was gifted to him and the Applicant by a family friend and that the same was registered in the name of the Applicant to be held in trust for him. The Applicant on the other hand denied this claim and stated that the property was a gift solely to her from one MW. The property was gifted in 1999 during the subsistence of marriage. Going by the strict definition of what amounts to matrimonial property, it is clear that the Kiambu land falls within the definition of matrimonial property because none of the two can demonstrate with any degree of certainty what they claim.

63. Matrimonial Property Act allows a spouse to own property on his or her own, this includes property acquired before and even during marriage where the other spouse has not acquired beneficial interest in it. The record shows that the property is registered in the name of the Applicant. The Respondent as the person laying claim to the property ought to have demonstrated to this court how the property is held in trust for him. He has not demonstrated how he improved or contributed to the maintenance of the said property. However in congruence with the definition of contribution in Section 2 of the Matrimonial Property Act, the Respondent’s contribution would only fall under “companionship” owing to the fact at the time of receipt of the gift, they were married.

64. The Respondent also laid claim to a property in Eastleigh. It was his testimony that he bought the property prior to marrying the Applicant and registered it in her name. He however acknowledged that the property had been transferred by fraudsters and was subject to litigation in another court. It is therefore clear that the said property is not free and this court cannot at this time make a finding that it forms part of the matrimonial property.

65. Concerning the catering business run by the Applicant, it was the Respondent’s case that the Applicant operated a restaurant in Westlands earning her an average of Kshs. 150,000/- a month. The Applicant however refuted this claims and stated that she had started catering services in which she delivered food to various clients to earn money for her and her grand children’s upkeep. On whether this business forms part of the matrimonial property, the onus was on the Respondent to prove that it did. This onus was not adequately discharged. He did not state when it was started nor demonstrate his investment in it. The catering service cannot be considered a as matrimonial property for those reasons.

66. The Applicant sought to distribute the matrimonial property on a 50-50 basis with the Respondent. However this court is cognizant of the fact that the marriage in this matter was polygamous and the court ought to take into consideration all the parties to the marriage. Having established that the impugned matrimonial property were all acquired after the Respondents marriage to the Applicant, being the 2nd wife, this court should consider all the parties in this matter including the Interested Party who was the first wife and whose marriage is still subsisting. To divide the property on a 50-50 basis between the Applicant and the Respondent would be prejudicial to the Interested Party.

67. The totality of the above analysis of evidence presented before me is that all parties in this matter have proprietary interest in the matrimonial property. There is a presumption of existing marriage between the Applicant and the Respondent starting from 1968 which was subsequently solemnized in 1985; the Respondent entered into a polygamous union and is still married to the Interested Party; the Applicant made both monetary and non monetary contribution towards the acquisition and improvement of the matrimonial home over the years and she continues to do so. I therefore make the following orders:

i. LR 4857/124, Motor Vehicle Registration No KBU 686S are matrimonial and LR Kiambu Block x/xxx are matrimonial property.

ii. The Applicant is hereby entitled to 35% of the matrimonial home LR xxxx/xxx

iii. The respondent is entitled to 10% of LR Kiambu Block x/xxx

iv. The motor vehicle Toyota Prado registration No. KBU xxxS is not matrimonial property and will not be subject to division.

v. LR xxxx/xxx, Kileleshwa, plot in Eastleigh, Shares in [Particulars Withheld] and shares in [Particulars Withheld] Development Company Limited are not free for distribution at this instance in the matrimonial property proceedings.

vi. 2 parcels of land in Rongai, 3 ½ acres of land in Juja, a plot in Juja, Restaurant business at westlands ,Karai/Gikambura/xxxx and ancestral land in Tinganga do not form part of the matrimonial property and I shall not make any orders on their division.

vii. Each party shall bear own cost in respect of this originating summons

DATED SIGNED AND DELIVERED IN VIRTUAL COURT THIS 14TH DAY OF FEBRUARY 2022.

.........................

L.A ACHODE

In the presence of .....................................................Advocate for the Applicant.

In the presence of ...................................................Advocate for the Respondent.

In the presence of..............................................Advocate for the Interested Party.