https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7264

NNS v ABM (Matrimonial Cause E002 of 2025) [2026] KEHC 7264 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEHC 7264 (KLR) Republic of Kenya In the High Court at Garsen Matrimonial Cause E002 of 2025 JN Njagi, J May 21, 2026 Between NNS Plaintiff and ABM Defendant Judgment 1.The Plaintiff/Claimant herein is a former wife of the Defendant, the marriage between them having been dissolved on 28th November 2024 in Kikuyu MCDCNo.E006 of 2024. The Plaintiff subsequently filed this matrimonial cause as per the originating summons dated 25th July 2025 wherein she is seeking for the following orders:1.A declaration do issue that the following properties currently registered in the name of the Respondent are matrimonial property being held in trust by the Respondent for the Claimant:i.Plot located at Malindi ya Ngwena within Tana River County Plot located at Wachakone within Tana River Countyii.House constructed on Malindi ya Ngwena within Tana River Countyiii.½ acre plot situated in Kiminini within Trans Nzoia County Kitale plot – 700k.iv.Motor vehicle registration number KBZ XXXX.2.That a determination be made as to each party’s contribution towards the acquisition, maintenance and improvement of the following matrimonial property.i.Plot located at Malindi ya Ngwena within Tana River Countyii.Plot located at Wachakone within Tana River Countyiii.House constructed on Malindi ya Ngwena within Tana River Countyiv.½ acre plot situated in Kiminini within Trans Nzoia County Kitale plot – 700k.v.Motor vehicle registration number KBZ XXXX.3)That this honourable court be pleased to assign a monetary compensation to the Applicant for her contribution towards the construction, furnishing and use of the house in Malindi ya Ngwena at Hola within Tana River County.4)That an order be issued that the Claimant is entitled to 50% of the following property.i.Plot located at Malindi ya Ngwena within Tana River Countyii.Plot located at Wachakone within Tana River Countyiii.House constructed on Malindi ya Ngwena within Tana River Countyiv.½ acre plot situated in Kiminini within Trans Nzoia County Kitale.v.Motor vehicle registration number KBZ XXXX.5)That the Respondent do transfer the Claimant’s share of the property within 60 days from the date of division at his cost.6)That in default the Court Administrator be authorized to sign any transfer documents in pace of the Respondent or any other person holding any title on behalf of the Respondent to effect all the orders of this court in favour of the Claimant.7)That the Respondent be condemned to pay the cost of this application. 2.It is the contention of the Plaintiff that the said property was acquired during the subsistence of her marriage with the Respondent and that she made both direct and indirect contribution towards the acquisition of the property. She asks this court to ascertain her contribution to the acquisition of the property and make an order for her monetary contribution to the property. 3.The defendant disputes the claim. Plaintiff`s case 4.The case for the Plaintiff was that she got married to the Defendant in the year 2012 but the marriage was dissolved by the Magistrate`s Court at Kikuyu in 2024. That during the subsistence of their marriage they were saving at Hazina Sacco and Alexander Forbes under the name of the Defendant and at Safaricom Sacco under her name. That in the year 2017 they combined their resources and acquired a loan from Hazina Sacco and bought ½ acre plot situate at Kiminini within Trans-Nzoia county. That in November 2018, they obtained a loan of Ksh.270,000/= from Hazina Sacco that enabled them to buy motor vehicle registration No. KBZ XXXX which was registered in the name of the Defendant. 4.It was further averment of the Plaintiff that in in February 2017 a sister to the Defendant gifted them a plot situate at Malindi ya Ngwena village in Hola township. They decided to build a matrimonial home on the plot. 5.That in July 2019 the Defendant got a job with Tana River county government and moved to live at Hola. During one of her visits to Hola the Defendant showed her a plot at Malindi ya Ngwena village that was on sale. They purchased the plot in 2021 at a cost of Ksh. 180,000/=. The Defendant is the one who was at Tana River and he thus handled the sale and has custody of all the documents of the plot. 6.Further that in 2022, the Defendant identified another plot at Wachakone village in Hola township and they bought it at a cost of Ksh.120,000/=. The Defendant is the one who handled the sale and has custody of all the documents of the plot. 7.That by that time the Defendant had repaid the loan from Hazina Sacco and obtained a loan of Ksh.600,000/= and they started construction of a home on the plot gifted to them by the Defendant`s sister. That during its construction she obtained a loan of Ksh.192,679/= from Safaricom Sacco which money was used to roof the house. 8.It is the case for the Plaintiff that she is entitled to 50% of the property acquired during the subsistence of her marriage with the Defendant. That as for the matrimonial house at Malindi ya Ngwena village at Hola, the Plaintiff says that the house is currently occupied by the Defendant. That despite her contribution towards its construction, she will not get to enjoy living in the house. She asks the court to assess her contribution towards its construction and furnishing and order that she be paid her contribution in monetary terms. Defendant`s case 9.The Defendant`s case on the other hand is that the subject property, save for the ancestral land at Malindi ya Ngwena village, was bought with his own savings resources and the Plaintiff did not contribute anything towards their purchase. That he bought the Kiminini plot in 2017 at a cost of Ksh450,000/= with a loan of Ksh.360,999/ obtained from Hazina Sacco and the balance of Ksh.90,000/= paid with money from NCCK being dues for his overseas travel allowance. 10.The Defendant said that he bought the motor vehicle in November 2018 at a cost of Ksh.270,000/= plus initial repair costs of Ksh.20,000/=. That he obtained a loan of Ksh.411,000/=from Hazina Sacco for the purchase of the vehicle.That as for the plot at Wachakone, he acquired it in July 2022 at a cost of Ksh.150,000/= while that at Malindi ya Ngwena was bought in 2021 at a cost of Ksh.180,000/=. That the same were bought with funds from his own savings. 11.On the ancestral land at Malindi ya Ngwena, the Defendant stated that the same belonged to his late sister who bequeathed it to his brother who is the registered owner of the land. That according to her wishes he, the Defendant, was entitled to half of the plot. That as for the house built on the plot the same was built at a cost of Ksh.3,920,000/=. That he initially took a loan of Ksh617,500/= in June 2020 and a second loan of Ksh,1,200,000/= taken in July 2021 that went towards the construction of the house. That the only contribution made by the Plaintiff was Ksh.192,679/= that was used to purchase iron sheets for roofing the house. 12.It was the averment of the Defendant that the Plaintiff did not contribute anything towards the acquisition of the stated properties nor did she assist in the repayment of the loans referred to above. Plaintiff`s Submissions 13.The plaintiff identified three issues for determination, to wit:1.Whether the suit property amounts to matrimonial property.2.Whether the Plaintiff contributed to its acquisition and the development to the matrimonial property.3.Whether the Plaintiff is entitled to an equal share of the matrimonial properties. 14.On the first issue, the Plaintiff submitted that the property was acquired after the Matrimonial Properties Act, 2014 came into force and more so that the case was filed after the said Act came into force. Reliance in this respect was placed in the case of where the court stated as follows: IC v SS (2024) KEHC 3316 (KLR) where the court stated that:On the choice of the applicable legal regime, the Supreme Court of Kenya in JOO vs. MBO; Federation of Women Lawyers (FIDA Kenya) & Another (Amicus Curiae) (Petition 11 of 2020) [2023] KESC 4 (KLR) (Family) (27 January 2023) (Judgment) held that the applicable law is determined from when the suit was filed. 15.It was submitted that the suit property was acquired between October 2017 and about September 2022 when the construction of the matrimonial home at Malindi ya Ngwena was completed. That it is manifest that there was unity of purpose in acquiring the property as the parties would budget for the acquisition and thereafter expend resources accordingly. 16.On the second issue, the Plaintiff submitted that she made both monetary and non-monetary contribution towards the acquisition of the property. Reference was made to the meaning of the term “contribution” as defined under section 2 of the Matrimonial Properties Act. It was submitted that the Defendant through his annextures marked ABM3 showed that he had a monthly salary of Ksh.48,000/= while the Plaintiff`s salary was Ksh.67,000/=. That the Plaintiff did manage to show in her bank statement marked NNS 2 that in the period of 2013 to 2018 she had a consistent monthly income of at least Ksh.35,000/- per month and she would contribute to the expense in the home. That the notes produced in the case showed that the parties would hold meetings to budget for their expenses and investment. That though it is the Defendant who took up the loans, it is her income that enabled them to cater for all the other expenses, especially noting that the plaintiff was residing at Kikuyu while the Defendant was residing at Hola. Therefore, that there was indirect contribution from the Plaintiff. The plaintiff relied on the case of IC v SS (supra) where it was held as follows on indirect contribution:In applying the maxim of equity, equality is equity, in which equity is now a constitutional principle in Article 10(2)(b) of the Constitution the Apex Court stated as follows: -95.As was pointed out by the Court in the English case of Gissing v Gissing [1971] AC 886, the maxim ‘equality is equity’ has never been truer. To our minds, equity is an important principle when it comes to matrimonial property since what is fair as it relates to equity is not a question of the quantitative contribution by each party but rather the contribution by any party in any form, whether direct or indirect. Any substantial contribution by a party to a marriage that led to acquisition of matrimonial property, even though such contribution is indirect, but nevertheless has in one way or another, enabled the acquisition of such property amounts to significant contribution. Such direct or indirect acts as was discussed by Lord Justice Fox in Burns v Burns [1984] 1 All ER 244 may include: -i.Paying part of the purchase price of the matrimonial property.ii.Contributing regularly to the monthly payments in the acquisition of such property.iii.Making a substantial financial contribution to the family expenses so as to enable the mortgage instalments to be paid.iv.Contributing to the running of and welfare of the home and easing the burden of the spouse paying for the property.v.Caring for children and the family at large as the other spouse works to earn money to pay for the property. 17.The Plaintiff accordingly submitted that though the property may have been registered in the name of the Defendant, the same is being held in trust for her by the defendant by virtue of the provisions of section 14(a) of the Matrimonial Properties Act which states that:Where matrimonial property is acquired during marriagea.in the name of the spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse. 18.On the third issue, the Plaintiff submitted that she has demonstrated her monetary and non-monetary contribution towards the acquisition of the matrimonial property and that she is therefore entitled to a 50% share of the property acquired by themselves. That particular consideration should be made on the fact that she has been in possession and exclusive use of the motor vehicle since 2022. Additionally, that she does not claim any right on the land where the matrimonial home stands at Malindi ya Ngwena village but that her claim is limited to her loss of use of the same. That the court should quantify her contribution in monetary terms. That since her documentation shows that the construction cost Ksh. 4,162,249/= and the Defendant contends that the same did cost Ksh.3,920,000/=, Ksh.2,000,000/= will suffice as the same amounts to 50% of the value. 19.The Plaintiff submitted that courts have previously recognised as non-monetary contribution of a spouse`s supervision of the construction of the matrimonial home. The plaintiff cited the case of RCL v MKK (2022) KEHC 10719 (KLR where the court held that:The Njoro/Ngata Block x/xxxx where the matrimonial home is the property that is the applicant’s home. Where she has lived and raised her children, a home she supervised from scratch to completion, though not with her own money, but with a little of her money, all her time and care and attention, and even love. 20.The Plaintiff urged the court to award her the following as her 50% share of the matrimonial property:1.The Kiminini plot within Trans-Nzoia county.2.Motor vehicle registration No. KBZ 687 C3.Ksh.2,000,000/= being 50% share of the matrimonial house at Malindi ya NgwenaThat the Defendant to keep:1.The Plot at Malindi ya Ngwena2.The plot at Wachakone within Tana River county3.The matrimonial house at Malindi ya Ngwena Defendant`s submissions 21.The Defendant identified the same issues for determination as those for the Plaintiff. He submitted that the property, save for the ancestral land at Malindi ya Ndwena in Hola, was matrimonial property since it was acquired during the subsistence of the marriage. 22.It was submitted that though the Plaintiff stated in her supporting affidavit that the couple was maintaining a joint account, there was no such evidence placed before the court. That the Defendant was saving with Hazina Sacco while the Plaintiff started to save with Safaricom Sacco when she was employed in June 2018. 23.It was submitted that the plaintiff has failed to prove any contribution towards the acquisition of the properties. Reference was made to the case of JOO v MBO where the Supreme Court stated that division of matrimonial property must be based on contribution and not on mere fact of marriage. That in this case the only contribution that the Plaintiff did was purchase of iron sheets that went towards the roofing of the house. 24.Counsel for the Defendant submitted that though the law recognised non-monetary contribution, such contribution must be proven and must have a nexus to the acquisition of the property in question. That in their case there were no children thereby negating child care as a non-monetary contribution. He did though admit that the parties maintained two homes, one at Kikuyu and the other at Hola. 25.It was submitted that the alleged contribution towards design and record-keeping of the construction of the house at Hola does not amount to substantial non-monetary contribution that would justify an equal share of the property. It was submitted that it is the defendant who did the supervision of the construction as he was residing at Hola. 26.It was submitted that the Plaintiff is entitled to compensation equivalent to her monetary contribution of Ksh192,679/= towards the roofing of the house. That her claim equal share of the properties is untenable, unconscionable and amounts to unjust enrichment in view of her minimal contribution towards the acquisition of the property. That if her claim is allowed the Defendant stands to be deprived of his lawfully hard-earned property which would be a violation of his constitutional right to fairness in the distribution of matrimonial property and the right to property. Reliance was placed in the case of JOO V MBO (supra) where the Supreme Court stated that:“The equality provision is article 45(3) does not entitle any court to vary existing proprietary rights of parties and take away what belongs to one spouse and award half of it to another spouse that has contributed nothing to its acquisition merely because they were or are married to each other. To do so would mean that article 40(1) and 2 of the Constitution which protect the right to property would have no meaning which would not have been the intention of the drafters……” 27.The Defendant urged the court to dismiss the claim. Analysis and determination 28.I have considered the pleadings and the respective submissions tendered by the respective counsels for the parties. The issues or determination are those as proposed by counsel for the Plaintiff, to wit:1.Whether the suit property amounts to matrimonial property.2.Whether the Plaintiff contributed to its acquisition and the development to the matrimonial property.3.Whether the Plaintiff is entitled to an equal share of the matrimonial properties. 29.There is no dispute on the first issue that the property, save for the ancestral land at Malindi ya Ngwena village, is matrimonial property as the same was acquired during the subsistence of the marriage. It is the other two issues that are in dispute. Whether the Plaintiff contributed to the acquisition of the matrimonial property or its development 30.The plaintiff contends that she contributed to the acquisition of the property both in monetary terms and in non-monetary terms. It was her averment that though it is the Defendant who took up the loans, it is her income that enabled him to grow his savings and repay the loans. That she used to cater for other family expenses such as paying rent which freed the Defendant`s income to pay the loans. Therefore, that there was indirect contribution from her. That the hand written notes attached to her supporting affidavit shows that the couple was budgeting for their expenses and investments. 31.The Plaintiff argued that she made non-monetary contribution by keeping meticulous financial records and tracking of their finances. That it is out of her financial and management skills that enabled them to stretch their modest income and buy the property. 32.On the monetary contribution she argued that she directly contributed to the roofing of the house at a cost of Ksh.192,679/=.The Defendant on the other hand argued that the subject plots and motor vehicle were bought from his own savings without any contribution from the Plaintiff. That the only contribution that the plaintiff made was on the roofing of the matrimonial house. 33.The Plaintiff in this matter does not dispute that all the property was bought with money coming directly from the Defendant. Neither does she dispute that all the property is registered in the name of the Defendant. The question is whether she made any contribution towards the acquisition of the property. 34.Contribution is defined in section 2 of the Matrimonial property to mean – monetary and non-monetary contributions and includes-a.domestic work and management to the matrimonial home;b.child care;c.companionship;d.management of family business or property ande.farm work. 35.Section 14 of the Matrimonial Properties Act provides as follows;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. 36.The property herein is registered in the name of the Defendant. It was acquired during the subsistence of their marriage. There is a rebuttable presumption that the property is held in trust of the Plaintiff. Since it is the plaintiff who alleged that she contributed to the acquisition of the property, the burden of proof was on her to prove the same. 37.Sections 107 and 109 of the Evidence Act provide as follows;107 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 38.There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in sections 109 and 112 of the Act as follows:109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.112.In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.The Defendant can therefore show that the property solely belongs to him. 39.As stated above, the Plaintiff contends that she made indirect monetary contribution towards the acquisition of the properties in meeting other family expenses. I have perused the hand written budget notes that are annexed to the Plaintiff`s supporting affidavit. Though the Plaintiff says that they were the budget notes for the couple, there is nothing to show that they were prepared with the participation of the Defendant. I have not seen anywhere in the notes where the purchase of the three plots and the car were budgeted for before they were bought. The notes do however show that the plaintiff had a salary which she did put at the disposal of the family in meeting its monthly expenses. 40.For example, the budget for the year 2019 was as follows:Amani`s salary …………………………..48,000/=Nelly`s salary ……………………………67,000/=Hazina Sacco dividends ………………Safaricom Sacco dividends ………….Potential Expenses:Rent and utilitiesTithe and offeringsTravel Expenses 41.Whether then the notes were prepared by the plaintiff on her own or with the concurrence of the Defendant, they do demonstrate that she did make an indirect contribution in using her salary to meet family expenses. In effect she did make an indirect monetary contribution to the acquisition of the property by making her salary available to meet other family expenses. I am in agreement with the averment by the plaintiff that this enabled the Defendant to grow his savings and pay the loans taken. In addition, the Plaintiff did offer companionship to the Defendant as his wife. It is therefore my finding that the Plaintiff made indirect monetary contributed to the acquisition of the three plots at Kiminini, Malindi ya Ngwena and at Wachakone and in the purchase of the motor vehicle. 42.As regards the construction of the matrimonial house at Malindi ya Ngwena Village in Hola, the plaintiff made a direct financial contribution of Ksh.192,679/= that went towards the roofing of the house. The budget notes for the year 2021 shows that the Plaintiff had made her salary available to meet other family expenses during the construction of the house. This is clear evidence that the Plaintiff made indirect contribution towards the construction of the house. It is therefore my finding that the Plaintiff made both direct and indirect contribution towards the construction of the house. Whether the Plaintiff is entitled to an equal share of the matrimonial properties 43.The Plaintiff is claiming 50% share of the matrimonial property. The Defendant on the other hand says that the only contribution made by the Plaintiff is the sum of Ksh.192,679/= for roofing of the house 44.In the case of JOO v MBO (supa) the court held that division of matrimonial property must be based on contribution and not on the mere fact of marriage. The court said that:Therefore, in the event that a marriage breaks down, the function of any court is to make a fair and equitable division of the acquired matrimonial property guided by the provisions of article 45(3) of the Constitution. To hold that article 45(3) has the meaning of declaring that property should be automatically shared at the ratio of 50:50 would bring huge difficulties within marriages and Tuiyott, J (as he then was) has explained why above. Noting the changing times and the norms in our society now, such a finding would encourage some parties to only enter into marriages, comfortably subsist in the marriage without making any monetary or non- monetary contribution, proceed to have the marriage dissolved then wait to be automatically given 50% of the marital property. That could not have been the intention of our law on the subject. 45.The court further stated that:…..the equality provision in article 45(3) does not entitle any court to vary existing proprietary rights of parties and take away what belongs to one spouse and award half of it to another spouse that has contributed nothing to its acquisition merely because they were or are married to each other. To do so would mean that article 40(1) and (2) of the Constitution which protect the right to property would have no meaning which would not have been the intention of the drafters.See also ICS v SS case ((supra). 46.I am guided by the principles established in these cases. Having found that the Plaintiff made indirect monetary contribution to the acquisition of the property and both direct and indirect contribution towards the construction of the matrimonial house, the question is how much her contribution was worth. 47.It is clear that the biggest contribution came from the Defendant who took out loans to buy the property and to build the house. The Plaintiff`s contribution should be recognized as she made her income available to cater for other family expenses during the acquisition of the property and construction of the house. She has however not shown that her contribution was equal to that of the plaintiff. Her claim for equal sharing of the property is therefore not justified. It may not be easy to assess her contribution in percentage terms but taking the evidence in totality, I a m of the view that an assessment of her contribution at 30% is fair and reasonable. 48.Accordingly, I find that the plaintiff has proved that the subject plots, motor vehicle and house are matrimonial property and that she made 30% contribution towards their acquisition and improvement while the Defendant made the rest of the contribution of 70%. 49.The defendant says that the house cost Ksh.3,920,000/= to build. Having found that the Plaintiff is entitled to 30% share towards its construction, I order that he pays the Plaintiff Ksh.1,176,000/= as her 30% share contribution towards its construction. 50.The other properties were bought between the years 2017 and 2022. Their current value is not known. It is apparent that the Kiminini plot is of higher value than the others. It is will not be fair to distribute the property before the current value of the plots is established. I therefore order that the parties do engage a valuer to establish the value of the three plots as well as the value of the motor vehicle. 51.In view of the foregoing the court makes the following orders:1.That a declaration be and is hereby issued that the following properties are matrimonial property:i.Plot located at Malindi ya Ngwena within Tana River Countyii.Plot located at Wachakone within Tana River Countyiii.House constructed on Malindi ya Ngwena within Tana River Countyiv.Half acre plot situated in Kiminini within Trans Nzoia County Kitalev.Motor vehicle registration number KBZ XXXX.2.That it is hereby ordered that the Plaintiff made 30% contribution towards the acquisition and improvement of the matrimonial property as determined above while the Defendant made 70% contribution towards the acquisition and improvement of the same.3.That the Defendant is hereby ordered to pay the Plaintiff Ksh. 1,176,000/= being her 30% share contribution towards the construction of the matrimonial house, failing which the house is hereby ordered to be sold and the proceeds thereof be distributed to the parties in the ratio stated above.4.That the following property is hereby ordered to be valued for the court to determine their mode of distribution:i.Plot located at Malindi ya Ngwena within Tana River Countyii.Plot located at Wachakone within Tana River Countyiii.Half acre plot situated in Kiminini within Trans Nzoia County Kitaleiv.Motor vehicle registration number KBZ XXXX.5.The parties to agree and pay one common valuer failing which each party to file separate valuation reports.6.Parties are at liberty to approach the court for purposes of enforcing the orders made above. 52.Since the matter involves a dispute on matrimonial property, I order each party to bear its own costs. Orders accordingly. DELIVERED, DATED AND SIGNED AT GARSEN THIS 21ST DAY OF MAY 2026J.N.NJAGIJUDGEIn the presence of:No appearance for PlaintiffMr. Mutemi HB for Mr. Thimba for DefendantCourt Assistant - Nasra