https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6555

MW v JO (Matrimonial Cause E014 of 2022) [2026] KEHC 6555 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 6555 (KLR) Republic of Kenya In the High Court at Kiambu Matrimonial Cause E014 of 2022 A Mshila, J May 15, 2026 Between MW Petitioner and JO Respondent Judgment 1.Before court is the Amended Originating Summons dated 25th January, 2024 and brought under Order 37 Rule 18 of the Civil Procedure Rules, Sections 2, 6, 7, 12, 14 and 17 of the Matrimonial Property Act 2013, Section 93(3) of the Land Registration Act, Article 45 of the Constitution and all other enabling provisions of the law. The Applicant sought for orders;-a.That a declaration do issue that the properties listed herein constitute matrimonial property and are held and registered in the name of the Respondent in trust for the Applicant.b.That it be declared and decreed that the entirety of the properties with all the developments thereon, which properties were acquired majorly by the efforts of the Applicant during the course of their marriage and registered in the name of the Respondent, as was the custom then, belong to the Applicant;i.RUIRU KIU BLOCK 2/7XXXii.Five (5) bedroom house built on the above-named parcel of landiii.Rental houses/units built on the same parcel of land. 2.The Summons is premised on the grounds that the Applicant and the Respondent solemnized their marriage on 8/8/2009 at Ruiru Catholic Church and that the Respondent made little to no financial contribution towards acquiring the properties listed herein with the Applicant contributing the biggest financial share as well as educating the children. 3.MW in her supporting affidavit deposed that she got married to the Respondent and the marriage was solemnized on 8/8/2009 and thereafter they were blessed with three issues. However, that the same has since irretrievably broken down and the parties are now divorced vide the decree absolute issued on 8/2/2022. She contended that during the subsistence of the marriage, they jointly acquired RUIRU KIU BLOCK 2/7XXX which property was registered in the sole name of the Respondent. On the said property they built their matrimonial home and rental units. Further, she averred that the property was registered in the name of the Respondent due to the trust that she had for him. The cost of the parcel of land was Kshs. 40,000/= where she contributed Kshs. 25,000/= and the Respondent Kshs. 15,000/=. She stated that she initiated the project of building rental units with the Respondent also buildings a few units but that the Respondent collects all the rent for all the units. The Respondent was said to have sold a part of the property where he utilised all the proceeds alone in total disregard of the Applicant’s financial contribution. She contended that she incurred all the household bills as well as school fees. Lastly, she contended that the purchase of all their properties was made by with joint efforts of both parties as such she claims an equal share. 4.During the hearing, MW (PW1) wished to rely on the Originating Summons as amended and her witness statement dated 25/1/2024 as her evidence in chief. She produced a decree absolute dated 8/2/2022, a title deed and pictures of the rental units. 5.Despite, proper service, the Respondent failed to participate during the hearing of this matter. 6.The summons was canvassed by way of written submissions. Applicant’s Submissions 7.The Applicant submits that the property was acquired jointly during the period of coverture and that she had made direct and indirect contribution towards its acquisition and development. Reliance was placed in the case of Echaria vs Echaria (2007) eKLR. It was submitted that the Applicant was working as a business-woman and that she contributed Kshs. 25,000/= with the Respondent contributing Kshs. 15,000/= towards the acquisition of the property. Further, that, the Applicant, was solely responsible for the financial well-being of the family; providing food, shelter, clothing, school fees, stationery, uniform and bills as well as supporting the Respondent. In respect of the property being registered in the name of the Respondent, reliance was placed in the case of Gissing vs Gissing (1970) 2 All ER 780. The Respondent was said to be solely enjoying the rental proceeds as well as the proceeds of sale for the hived piece of land. Lastly, the court was urged to declare the suit property and the developments thereon matrimonial property and also find that the Applicant made the larger direct and indirect contribution in the acquisition of the property. Issues For Determination 8.Having considered the Applicant’s Originating Summons and the written submissions, the issues arising for determination are;-i.Whether Ruiru Kiu Block 2/7XXX and the developments thereon form part of matrimonial property.ii.Whether the Applicant is entitled to an equal beneficial as the Respondent in the suit propertiesiii.Costs Analysis Whether Ruiru Kiu Block 2/7XXX and the developments thereon form part of matrimonial property. 9.The Applicant herein contends that she began living together with the Respondent since 1990 and the union was officiated on 8/8/2009 at Ruiru Catholic Church. She contended that they were later blessed with three issues. However, in 2020 the marriage irretrievably broke down and the same was dissolved vide the decree absolute issued on 8/2/2022 at the Chief Magistrate’s Court at Thika. 10.The Respondent sought for the court to declare RUIRU KIU BLOCK 2/7XXX and the developments thereon being a five (5) bedroom house and rental units matrimonial property. 11.The Respondent alleged that sometime in 1993/1994 the parties acquired the suit property. The suit property was said to have been acquired during the subsistence of the marriage between the Respondent and the herself. The same was said to have been registered in the sole name of the Respondent as was the custom then and on the basis of trust. Further, the Respondent contended that developments were made on the property being a five (5) bedroom house and rental units. She sought for the said developments to also be declared matrimonial property. 12.Section 6 of the Matrimonial Property Act defines matrimonial property as:(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. 13.The Applicant herein has attached a title deed for the property RUIRU KIU BLOCK 2/7XXX in the name of Joseph Onyango Otiwa the Respondent herein showing that the property was registered on 29/7/2011 at the Thika Land Registry. She has also attached photographs of the five (5) bedroom house and the rental units. 14.The Applicant contends that she contributed Kshs. 25,000/= with the Respondent contributing Kshs. 15,000/= towards the acquisition of the suit property. 15.Having considered the evidence tendered by the Applicant, there can be no doubt that the property known as RUIRU KIU BLOCK 2/7XXX and the developments thereon are matrimonial property in the meaning of Section 6 of the Matrimonial Property Act as the same was acquired by the Applicant and the Respondent during the pendency of their marriage. This is despite the fact that the property was registered in the sole name of the Respondent. 16.Reference is made to the case of T.M.V. vs F.M.C (2018) eKLR where Nyakundi J. opined that:-“...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.” 17.This Court is satisfied that RUIRU KIU BLOCK 2/7XXX and the developments thereon form part and are matrimonial property. Whether the Applicant is entitled to an equal beneficial as the Respondent in the suit properties 18.The Applicant urged this court to find that the suit property and the developments thereon belong to the her as they were acquired majorly by the efforts of the Applicant due to the fact that she had made the larger direct and indirect contribution in the acquisition of the property. 19.On contribution, Section 7 of the Matrimonial Property Act is clear in its terms that:“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.” 20.Contribution towards the acquisition of matrimonial property is defined under Section 2 of the Matrimonial Property Act, 2013 in the following terms;-In this Act, unless the context otherwise requires—“contribution” means monetary and non-monetary contribution and includes—a)domestic work and management of the matrimonial home;(b)child care;(c)companionship;(d)management of family business or property; and(e)farm work. 21.Refer the case of BWK vs SMM (2024) KEHC 10489 (KLR) where the High Court underscored that division of matrimonial property depends on the contribution of each spouse. The court noted that non-monetary contributions are recognized and must be proven to determine the share each spouse is entitled to. 22.The Applicant in her statement stated that she was a business-woman while the Respondent was a clerk until 1997 when he was laid off. In 1993/1994 the parties herein acquired Ruiru Kiu Block 2/7XXX at a cost of Kshs. 40,000/= where she contributed Kshs. 25,000/= with the Respondent contributing Kshs. 15,000/=. She averred that she constructed the family home with no help from the Respondent and that she also constructed rental units with the proceeds she got from the sale of part of the land. The Applicant also stated that she was Responsible for the well-being of the family as she solely provided shelter, food, clothing, school fees, stationery, uniform and bills among others. 23.Further, it was the Applicant’s contention that since she moved out in 2017, the Respondent has been collecting rent from the rental units and the leased part of the land to a church. The Respondent was also said to have sold a part of the land without sharing the proceeds with the Applicant. 24.Distribution of matrimonial properties is based on each party’s contribution both monetary and non-monetary. 25.Similarly, in the case of Federation of Women Lawyers Kenya (FIDA) vs. Attorney General & another (2018) eKLR the court stated that:-“The law recognizes equal worth and equal importance of the parties in marriage. Thus, the beneficial share of each spouse as the law on the division of matrimonial property stands in Kenya ultimately depends on the parties proven respective proportions of financial contribution either direct or indirect towards the acquisition of the property. First, the Act recognizes monetary and non-monetary contribution which is clearly defined. By providing that a party walks out with his or her entitlement based on his or her contribution, the section entrenches the principle of equality in marriage.” 26.It is noteworthy that the Applicant has not placed any form of evidence in respect of her contribution which she alleges is larger than that of the Respondent. What is clear is that the property declared by this court as matrimonial property was purchased by both parties with the Applicant allegedly, contributing Kshs. 25,000/= and the Respondent contributing Kshs. 15,000/= as much as there is no evidence of the same but the same remains unchallenged. 27.The Applicant also alleges that she solely built the family house as well as rental units which she built with the proceeds of the sale from a part of the land. 28.Lastly, the Applicant urges the Court to consider that since 2017, when she left the marriage, the Respondent has solely been collecting rent from the rental units and the leased part of the property to a church as well as proceeds of sale of a part of the land which he enjoyed alone. 29.Be that as it may, and in the interest of justice, this court is satisfied that on a balance of probabilities both parties contributed jointly towards the acquisition of the matrimonial property and the developments thereon both directly and indirectly. 30.This is informed by the fact that the Applicant herself has stated that the property was sold to them at a cost of Kshs. 40,000/= in 1993/1994. The Respondent at this time was still employed. The parties both contributed towards the acquisition of the said property with the Applicant contributing Kshs. 25,000/= and the Respondent Kshs. 15,000/=. Further, that the rental units were built with proceeds of sale from a part of the land which land belonged to both of them. 31.This court will also be guided by Article 45(3) of the Constitution of Kenya which provides thus:“Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.” 32.To this end and bearing in mind the above provision of the law as well as the case law cited herein, this Court is satisfied and finds that the parties herein should share the matrimonial property and the developments thereon equally. Findings And Determinations 33.For the forgoing reasons this Court makes the following findings and determinations;i.The application is hereby found to be partially with merit.ii.It is hereby declared that the entirety of the property known as Ruiru Kiu Block 2/7XXX and the developments thereon being the five (5) bedroom house and the rental units were all acquired during the pendency of the marriage and constitute matrimonial property.iii.It is hereby declared that the parties to the marriage are entitled to equal rights to the property Ruiru Kiu Block 2/7XXX on a 50:50 basis.iv.This being a family matter each party to bear their own costs. Orders Accordingly DATED SIGNED AND DELIVERED VIA TEAMS AT VOI THIS 15TH DAY OF MAY, 2026A.MSHILAJUDGEIn the presence of;Sanja/Millicent – Court AssistantsWambui - For the ApplicantN/A - For the Respondent