[2022] KEHC 10719 (KLR)

RCL v MKK (Matrimonial Cause 6 of 2020) [2022] KEHC 10719 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10719 (KLR)

Republic of Kenya

In the High Court at Nakuru

Matrimonial Cause 6 of 2020

TM Matheka, J

June 9, 2022

IN THE MATTER OF DIVISION OF MATRIMONIAL PROPERTY AND IN THE MATTER OF SECTION 17 OF THE MATRIMONIAL PROPERTY ACT NUMBER 49 OF 2013

Between

RCL

Applicant

and

MKK

Respondent

Judgment

1. By an originating Summons dated 11th May, 2020 the applicant seeks for orders: -1. That A declaration do issue that provides that property known as Njoro/ngata Block x/xxx, tractor KBN xxx F and IR xxxxxx Transfer Registered as IRxxxxxx/x with all buildings and developments thereon were acquired by the joint funds and efforts of the applicant and the respondent during their marriage, and registered in the name of or in the possession of the respondent, are owned jointly by the applicant and the respondent.2. THAT the same be divided equally between the respondent and the applicant in such other just and equitable manner and proportion as this Honourable Court deems fit.3. That the Respondent, himself, his agents and/or servants be restrained from alienating, encumbering and from disposing off the said property until this matter is heard and determined.4. That the cost of this application and incidentals thereto be borne by the respondent.

2. The application is premised on grounds on its face and supported by the affidavit of RCL sworn on the even date. She deponed that she got married to the respondent on October 3, 1997 at Kericho District Commissioner Office and their marriage was blessed with two (2) children who are now adults.

3. That on the September 6, 2019 the Chief Magistrates Court in Nakuru Divorce Cause No.46 of 2018, issued a decree dissolving their marriage on account of constructive separation and desertion.

4. She contended that properties namely Njoro/Ngata Block x/xxxx, Tractor KBN xxxF and IR xxxxxx Transfer registered as IR xxxxxx/x were acquired jointly during the subsistence of their marriage since she contributed directly and indirectly towards their acquisition.

5. She contended that she is a farmer and a businesswoman and it is through her joint efforts with the respondent that they were able to acquire the properties aforesaid during the subsistence of the marriage as she would carry out farming activities on the vast parcels of land and proceeds thereof would be used for their home activities.

6. She stated that the respondent in April 2003 travelled to the United Kingdom for purposes of pursuing his studies, came back to Kenya in August 2004 for a visit for two weeks then travelled back to the UK until December 2004 when he came back to Kenya for a period of three weeks before eventually travelling back to the UK where he stayed for four years until 2008 then visited the country for a period of three weeks before travelling back to the UK.

7. She averred she is unaware of the whereabouts of the respondent since 2010 and to the best of her knowledge; the respondent was last in Kenya in 2010 and has since married one Jennifer Gitonga in 2010 while he was in the UK.

8. It was her deposition that she has suffered greatly with regard to maintenance and upkeep of the matrimonial home and the children’s needs yet their marriage irretrievably broke down due to separation and neglect by the respondent and that it would be in the interest of justice that her interest in the matrimonial property is protected.

9. The application is opposed by the respondent through his replying affidavit sworn on December 11, 2020. He deponed that the application is misconceived, vexatious and frivolous and an abuse of the court process.

10. He confirmed he married the Applicant in the year 1997 but disputed that he had two children with her. He stated that the applicant misled him into thinking that the first born son was his biological yet she knew very well that he was the son to the late MK.

11. He deposed that he educated the child and provided for him as his own until he came to know that the child belonged to someone else in 2016 and this led to their divorce.

12. He prayed that the applicant compensates him for all the expenses he incurred in educating and providing for the child which should be deducted from what the court thinks fit to award the applicant.

13. He averred that it is untrue the properties named in the application were jointly owned or acquired by the applicant since the applicant has been a house wife most of her life after she was retrenched from her work place around 1999.

14. He deposed that he has provided everything since the year 1999 including her personal needs and that the properties Njoro/ngata Block x/xxxx and IR xxxxxx were never purchased but given to him by his father as depicted from the extracts of the title hence the Applicant has no right to claim the same.

15. He contended that he gifted his father the tractor registration number KBN xxxF although the same is registered in his names and that it was bought in the UK.

16. He asserted that he build up the home on the land that his father gave him on his own without applicant’s help although she has been staying there with the children and taking care of it. He is willing to give her 5% of the house value as an appreciation of taking care of the property.

17. He stated that the applicant is not entitled to any equal share of the properties as he sent her money to manage and live comfortably as can be seen from the transaction printout via western union from 2010 to 2018.

18. He averred that the applicant is neither a farmer nor a business woman and if she is, she should prove the same. He disputed the applicant was unaware of his whereabouts since the year 2010 as they were in communication and he even sent her money as evidenced by the print outs from the Western Union.

19. It was his deposition that the Applicant deserves 5% of the value of the Property Njoro/ngata Block x/xxxx since she has been staying and using this property with his consent.

20. The applicant filed a further affidavit in response to the replying affidavit sworn on 8th February, 2021. She averred that the respondent was aware she had a son before their marriage whom he accepted willingly and promised to fully provide for his need and therefore this was not the reason which led to the divorce.

21. She stated that respondent is not entitled to the expenses he incurred in educating and providing for the child because he was aware of the child before he chose to marry her and therefore it was his parental responsibility to take care of their son.

22. She reiterated that the properties named in her application were jointly acquired by the respondent and herself and it constitutes their matrimonial property and that is why she is entitled to the same.

23. She averred that the claims that properties belonged to the respondent’s father are false and unproved and that the aforesaid tractor was bought by the respondent the reason it is registered in his name.

24. It was her deposition that the matrimonial home was built in 2004 after the respondent had left the country in the year 2003 for studies in the UK.

25. She reiterated that she is entitled to half share of the properties mentioned since they were acquired during their marriage through their joint effort.

26. The matter was heard by way of viva voice evidence.

Summary of the Evidence Applicant’s case 27. During hearing the Applicant adopted her statement dated May 11, 2020. In that statement she reiterated the entire averments contained in her Supporting Affidavit sworn on the even date.

28. The applicant reiterated that the suit properties were not given to the respondent alone but that her father in law had shown her where to put up her house. That they were acquired jointly during the subsistence of the marriage and that the respondent father gifted her and the respondent the parcel of land where the matrimonial home is constructed and IR 187713 Transfer. She did not have any documentary evidence to prove she is a business lady and that she made direct contributions towards the development of the matrimonial house.She said she did not have her bank statements in court

29. She did not know the exact year when the tractor registration number KBN 509F was bought. She however stated that she has used it before.

30. She testified that she began to supervise the construction of the matrimonial home in 2005 as the respondent had left the country in 2003. She stated that she did the purchases of the materials, she did the finishing of the house with her own money and put in the cupboards and the wardrobes as well

31. That she was retrenched from civil service and used part of that money in the construction of the house. She has lived in that home since it was completed in 2008. On the other property she planted maize and grass.

32. That when they got married she had a 7-year-old son whom he accepted as his own child, and they got one child with him. That he was providing for the family from 2011. That she was in business and supplied unga and firewood to schools.

33. She wanted the court to grant her the matrimonial home and a share of the tractor. She said that her contribution was that she had spent all her time taking care of the home and the children while he was way.

34. On cross examination she said she worked in civil service and earned Kshs. 6,000/= at that time, and was retrenched in 2000. She confirmed that that the respondent sent money for upkeep while in the UK, and also the money for putting up the house.

35. On re-examination she told the court that the property was given by the respondents to him when they were married, and the respondent was in the UK.

36. That without her supervision the house would never have been built. That she supervised the works even if the money was not hers.

Respondent’s Case 37. The respondent adopted his statement dated December 11, 2020 as his evidence. In that statement the respondent similarly reiterated the entire averments contained in his replying affidavit of December 11, 2020. In it he confirmed that he had sent money for the applicant’s and the children’s upkeep while in the UK and for the construction of the house.

38. He testified that the property Njoro Ngata Block x/xxxx and IRxxxxxx were given to him by his father as evidenced by the green cards and was therefore not available for sharing as matrimonial property.

39. He acknowledged that the applicant had taken care of the property and the children and for that she deserved only 5% of the property

Applicant’s Submissions 40. The applicants submitted on the following issues:-1. Whether the suit property constitutes matrimonial property;2. Whether the Applicant contributed to the acquisition, construction and development of the suit properties;&3. How the matrimonial properties should be distributed?

41. On the first issue, the applicant relied on section 6 of the Matrimonial Property Act which defines what a matrimonial property is and submitted that the land parcel Njoro/Ngata Block x/xxxx where the matrimonial property is, was gifted to them by the respondent’s father despite the same being registered only in the respondent’s name.

42. She stated that the matrimonial property was built eight (8) years after solemnization of her union with the respondent and during the subsistence of the marriage, and therefore the matrimonial home and the parcel of land thereon is within the threshold of what constitutes matrimonial property.

43. She argued that there is rebuttable presumption that the property is held in trust for another spouse under section 14 of the Matrimonial Property Act No.49 of 2013 and the fact that the parcel of land was registered in the Respondent’s name does not make it his personal property as he was holding it in trust for her in her capacity as a spouse.

44. That in the case of MW vs AN [2021] eKLR this court stated that evidence that the property was registered in the name of the defendant did not mean that the property belonged to him and that if the plaintiff could establish contribution, then she could claim a share.

45. She contended that property IR xxxxxx forms part of the matrimonial property as it was gifted to her and the respondent by the respondent’s father during subsistence of their marriage.

46. With regard to the second issue, the applicant submitted that she contributed 60% of her retrenchment package to start construction of the matrimonial home. That the proceeds from her farming business were applied to the development of the matrimonial properties and improving the matrimonial home and other finishing i.e. cupboards and shelves.

47. On the assertion that she did not produce any records to prove her financial contribution towards the development of the properties, the applicant relied on the case of MGNK vs AMG[2016] eKLR where the court of appeal observed that: -“in a marriage set up, it is not realistic to expect partners to keep track of their respective contributions towards the purchase of family property because at the time of such purchase divorce is not on their minds. It is therefore pretentious to expect any of them to be able to show their exact contributions towards the acquisition of the subject property. Notwithstanding the difficulty in determining the exact contributions of each spouse towards the purchase of family property ,the court still has the duty to apportion family property to the best of its ability taking into account not only the personal earnings of each spouse and how it was applied in the family, but also each party’s indirect contribution not only to the purchase of the subject property but also to the welfare of the family as a whole.”

48. She thus submitted that she has made monetary and non-monetary contribution towards the construction and development of the matrimonial properties. That her direct contribution was the use of her finances to build and improve the matrimonial home while her indirect contribution was taking full responsibility of supervising construction work and buying materials, farming, managing the properties as well as catering for the children’s needs. To bolster her assertion on indirect contribution, the applicant placed reliance on the case of MW vs AN (Supra)where this court stated that;“…the part of mothering, housekeeping and taking care of the family is more often than not given any value when it comes to sharing matrimonial property. It is easy for the spouse working away from home and sending money to lay claim to the whole property purchased and developed with that money by the spouse staying at home and taking care of the children and the family. That spouse will be heard to say that the other one was not employed so they contributed nothing. That can no longer be tenable argument as it is a fact that stay at home parents and in particular women because of our cultural connotation do much more work (house wives) due to the nature of job. Raising children is a full time job that families pay a person to do. Cooking and cleaning as well. Hence a woman who has to balance child bearing and rearing this contribution must be considered…”

49. On the third issue, she cited the provisions of section 7 of the Matrimonial Property Act and placed reliance on the case of HMN vs FTS[2021] eKLR where Gikonyo J stated that :-“Non-monetary contribution is not illusory or of little or no weight. It is real and tangible contribution and must be given due weight in division of matrimonial property. I must buttress the need for the greater awareness by the courts of the value of nonfinancial 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. The law has taken this a position in providing for nonmonetary contribution as a factor of ownership in matrimonial property”

50. The applicant thus confirmed that the respondent made monetary contribution towards the constructions of the matrimonial home while she made both direct and indirect contribution towards overseeing and supervising the construction, paying workers and towards furnishing and decorating the property.

51. She cited the case of F.S vs E.Z [2016] eKLR where the respondent was out of the country while the applicant took care of the properties ensuring that nothing wasted. The court was of the opinion that the fact that the applicant oversaw the purchase of the properties amounted to indirect non-monetary contribution.

52. She further cited the case of EMN vs N M [2018]eKLR where Muchemi J on assessing the plaintiff’s contribution to 45% stated that:-“…it must be noted appreciated that the work done by the plaintiff in her capacity as mother and wife as well as farming contributed to the welfare of the family. This kind of support made a tremendous difference in the social and economic life of the defendant which enabled him to acquire property and make other strides in life. The defendant generated income which was used to invest for the family, educate the children and provide other needs for the family. The plaintiff on the other hand took care of the family’s ten children among other duties. This is not a mean task”

53. She submitted that the she has for the past eighteen (18) years lived on the matrimonial property caring and raising children thereon when the respondent resided in the UK. She did domestic work, managed and maintained the home which in turn undoubtedly gave the respondent peace of mind to succeed in his studies and work thus enabling him to contribute to the development of the properties.

54. She relied on the case of CWN vs BN [2015] eKLR where the court held that distribution of matrimonial property does not depend on whose name the property is registered.

55. She further relied on the of PWK vs JKG [2015] eKLR arguing that the court awarded the appellant the matrimonial home and the adjoining land solely on the basis that she had been living there the case F.S vs E.Z(supra) where the court held that since the plaintiff had been living in the matrimonial home for over ten (10) years since her marriage to the defendant, she was entitled to retain the house.

56. In light of the above, the Applicant prayed that she retains the matrimonial home and land parcel Njoro/ngata Block x/xxxx while the respondent retains IR 187713 and the tractor.

Respondent’s Submissions 57. The respondent filed his submissions on February 21, 2022.

58. He flagged out these issues for determination: -1. Do Njoro/ngata Block x/xxxx, Tractor KBN 509 F and IR xxxxxx form part of the Matrimonial properties?2. What contribution if any did the plaintiff/applicant make in the acquisition of the matrimonial property and how should it be shared? &3. Who pays costs of this suit?

59. On the first issue, the respondent submitted that property Njoro/Ngata Block x/xxxx where the Matrimonial home is constructed was gifted to him by his father and as such it does not form part of the matrimonial property within the meaning of section 6 of the Matrimonial Property Act.

60. He however appreciated that the applicant has been living with his children in the matrimonial house situated on the above parcel of land and submitted that on this ground she is entitled to 5% of the value of the matrimonial house.

61. With regard to IR xxxxxx, the respondent similarly submitted that it was gifted to him in 2016 after he had lost touch with the applicant and therefore the applicant has no claim over it whatsoever.

62. With respect to the tractor registration number KBN 509 F, the respondent submitted that it does not form part of the matrimonial property since the Applicant did not prove when the same was bought and brought from the UK.

63. On the second issue, the respondent submitted that in the event of a divorce the matrimonial property is divided between the spouses according to the contribution of each spouse as provided for under article 45(3) of the Constitution and section 7 of the Matrimonial Property Act.

64. It was his submissions that section 2 of the Matrimonial Property recognizes both monetary and non-monetary contribution and argued that it is difficult to ascertain exactly in monetary terms or percentage terms the value of non-monetary contribution made by the applicant in regards to acquisition and development of the matrimonial home situate on Njoro Ngata Block x/xxxx. To support this position the respondent cited the case of AW vs MVCMAWM [2018] eKLR where the court observed as follows;“………..it is common ground that the suit premises was inherited by the respondent and just the learned trial judge ,we appreciate no case is like another and each must be considered on its own merit while bearing in mind the peculiarities, circumstances and the principles of fairness and human worth in each case. Just like the old saying goes, “no one should reap where they did not sow and none should reap more than that they planted” that is the basic tenet of equity which follows the law”.

65. That in Civil Appeal Number 142 of 2018 in CWM vs JPM [2017] eKLR the court of appeal held that:-“…parties are of equal worth and human dignity, whatever their station in life. To the issue before us, it is obvious the appellant having been married for 18 years made some contribution to the family of respondent at the time of such overture.in our view, that contribution, be it domestic work and management of the matrimonial home, child care or companionship falls within the definition of contribution under the act.

66. He prayed that this court direct the parties to file a Valuation Report so as ascertain the value of the matrimonial home and to make a finding in his favor as submitted above and order each party to bear their own costs.

Issues for Determination 67. Having considered the application, the rival affidavits, the parties’ evidence, their submissions, and the authorities cited the following issues fall for determination: -a.Whether the suit properties Njoro/ Ngata Block x/xxxx,Tractor registration number KBN xxxF & IR xxxxxx amount to Matrimonial Properties;b.Whether the applicant contributed towards the acquisition and development of the matrimonial properties;c.What share is the Applicant entitled tod.Who is to bear costs

Analysis ISSUE No. 1- Whether the suit properties Njoro/ Ngata Block x/xxxx, Tractor Registration Number KBN xxxF & IR xxxxxx transfer amount to Matrimonial Properties. 68. For a property to qualify as a matrimonial property, it must meet the definition in section 6 of the Matrimonial Property Act. Section 6 of the Matrimonial Property Act which 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.

69. It is not in dispute that parties herein were married 1997 and their marriage was dissolved 2019. It is not in dispute that the source of the Land Parcel Njoro/Ngata Block x/xxxx was the father to the respondent. What is in dispute is whether it was given to both of them or the respondent alone.

70. It is common ground that the property was registered in the name of the respondent during their marriage. The applicant testified that her father in law showed her that place as where she would put up her home. The two proceeded to put up the matrimonial home on that property, the respondent sending the money and the applicant supervising the construction. She testified that she used some of her retrenchment money towards the said construction although she provided no documentary proof. When the house was completed she moved in there with her children and has lived there since. It is here that the respondent would visit the family. These facts are not disputed; in my view they are overwhelming evidence that this is indeed matrimonial property.

71. The respondent argued that it was his inheritance.

72. Section 5 of the Matrimonial Property Act states;“Rights and liabilities of a personSubject 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. (emphasis mine)”

73. Evidently even if this was inherited property, and in my view it is not, it was acquired during the marriage. The respondent contended that this property was gifted to him in the year 2010. He produced no evidence to support the legal fact of it being his inheritance. When it was gifted as alleged he was still legally married to the applicant. The matrimonial home was built there. His family lives there surely he cannot be heard to say that the applicant was only living there with his consent. That argument is untenable and only intended to diminish the applicant’s role in the acquisition and development of the property.

74. Regarding the property IR xxxxxx, it is evident that the same was registered in the name of the respondent in 2016. It is argued that by the year 2016 the parties had separated and therefore the land the respondent received from his father as a gift was his alone. There is no evidence that parties had indeed separated. Until their divorce on 6th Sept 2019 they were still legally married and the respondent was still supporting the family up to July 2018. Section 14 of the Matrimonial Property Act provides two rebuttable presumptions as to property acquired during marriage: where property is acquired(a)in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse; and(b)in the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal.

75. While there is no evidence that in deed it was a gift to the respondent, the property just like the first one was registered in the name of the respondent during the marriage. It was upon the respondent to rebut the presumption that he was not holding the property in trust for the applicant.

76. Be that as it may, though this property was acquired during the marriage there is no evidence of any contribution on the party of the applicant. By that time, she was reliant on the respondent for her upkeep and that of the children. Her testimony that she conducted certain businesses was not supported by evidence. Hence as far as this goes, I find no contribution on her part.

77. With regard to Tractor registration number KBN xxxF, it was registered in the name of the respondent on the 19th of November 2010 during the subsistence of the marriage between the two.

78. Clearly there for all these properties were acquired during the marriage between the two but registered in the name of the respondent.

Issue No.2- Whether the applicant contributed towards the acquisition and development of the matrimonial properties 79. 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.”

80. The Court of Appeal had this in mind in TKM vs SMW [2020] eKLR where it is stated as follows:“We bear in mind the edict in Muthembwa vs Muthembwa (2002) 1 EA 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.”

81. It is not disputed that the applicant contributed to the construction of the matrimonial home, that she took care of the children while the respondent was away studying in the UK, and kept house in his absence. She has lived in that house and tilled the land where it stands since it was completed. So, she since 2003 when he left for studies in the UK, he came home for brief periods. In August 2004 for two (2) weeks, December 2004 for three (3) weeks, then three (3) weeks in 2008, then 2010 was the last time he came to that home. All this time the applicant was taking care of the home. Granted he was sending money, but would the money by itself have built the house? Would it have taken care of the children? Is he certain in all honesty and fairness that in all the applicant did is worth only 5% of the value of the matrimonial house? Clearly the applicant has not demonstrated that she was earning any money from the businesses she alleges. Supply of goods to schools would be supported by some documentary evidence. She did not produce any, not even her bank statement to support the said allegations.

82. On the prayer for compensation by the respondent on the allegations that he was duped by the applicant with respect to one of their children, the question is why raise it here? Is that an issue of matrimonial property? Or just another effort to diminish the applicant’s role in the acquisition and development of the matrimonial property? In any event he did not controvert her testimony that at the time they got married the said child was seven (7) years old and he was aware he was not his biological father?

83. I find the respondent’s prayer for compensation for raising his step son from the applicant to be unfounded as there was no proof that he was duped as alleged.

What share is the Applicant entitled to? 84. Contribution by the applicant is not denied by the respondent, the only issue being the percentage of that contribution. The applicant seeks 50% - 50% for each party but the respondent claims that the applicant’s contribution amounts to 5% and not 50%.

85. 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.”

86. Section 9 of the same Act recognizes contribution through improvement of a property acquired before or during the marriage in the following terms:“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.”

87. Article 45 (3) of the Constitution guides the court in considering the rights of the parties to a marriage in respect to subdivision of the matrimonial property. It states as follows:-“Parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of marriage”

88. The above provision therefore grants equal rights to parties to a marriage but this does not mean that a party to a marriage is entitled to equal share of the property acquired during marriage unless his or her contribution is ascertained to have been equal to that of the other spouse

89. The Court of Appeal (Kiage, JA) in PNN v ZWN [2017] eKLR had this to say:“Thus it is that the Constitution, thankfully, does not say equal rights ‘including half of the property.’ And it is no accident that when Parliament enacted the Matrimonial Property Act, 2013, it knew better than to simply declare that property shall be shared on a 50-50 basis. Rather it set out in elaborate manner the principle that division of matrimonial property between spouses shall be based on their respective contribution to acquisition.”

90. The Matrimonial Property Act of 2013 recognizes and formalizes both the monetary and non-monetary contribution of parties in a marriage. The court in NWM vs KNM(2014) eKLR stated that the court must give effect to both monetary and non-monetary contributions that both the applicant and the Respondent made during the currency of the marriage to acquire the matrimonial property

91. The House of Lords in White vs White [2000] 3WLR1571 was dealing with how the property of the husband and wife would be divided upon divorce. Lord Nicholls of Birkenhead observed as follows:-“But there is one principle of universal application which can be stated with confidence. In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles. Typically, a husband and wife share activities of earning money, running their home and caring for their children. Traditionally, the husband earned the money, and the wife looked after the home and the children. This traditional division of labour is no longer the order of the day. Frequently both parents work. Sometimes it is the wife who is the money-earner, and the husband runs the home and cares for the children during the day. But whatever the division of labour chosen by the husband and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering paragraph (f), relating to parties’ contributions.........There should be no bias in favour of the money-earner and against the home-maker and the child-carer.”

92. The court in J W CvsP B W [2015] eKLR stated thus:-“This is why under the Matrimonial Property Act 2013 was contribution may be monetary or non-monetary. A spouse should not be disadvantaged just because she/he sat at home while the other went to work to earn money. Caring for the children, doing domestic work, managing the home or providing companion, are all important contributions that should be taken into consideration when sharing matrimonial property. It should be quite clear 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 provisions of the Act and Constitution. Lastly, property acquired by spouses during separation or after divorce is not subject to an application under the Act (M. –v-M. [2008] I KLR (G & F) 247).”

93. Guided by the foregoing principles, the evidence before me is that neither the respondent nor the applicant expended any money to purchase the two parcels of land. However, the respondent did purchase the tractor in 2010 from the UK and shipped it home. The respondent testified that he bought it for his parents but did not produce any evidence to that effect. At that time the marriage appears to have been intact and I found no reason to doubt that the applicant used the tractor on the farm as part of the family property and that it is after the divorce that the respondent had it removed to his parents’ home. However, there is no evidence of contribution to its purchase.

94. With respect to the land in Rongai, the applicant did not persuade this court that she used the land or tilled crops that she sold or used for her sustenance with the children.

95. 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.

96. What measure can one give to this? Here I rephrase the words of the judges of the court of appeal. That with the understanding that no case is like another I must consider this one on its own merits taking into mind it’s peculiarities, circumstances. I must apply the principles of fairness and consider human worth something we cannot place a monetary value to, of each party in this case. I must be guided by the adage, “no one should reap where they did not sow and none should reap more than that they planted” that is the basic tenet of equity which follows the law”.

97. I am persuaded that the applicant and the respondent were gifted the property in Ngata to put up their matrimonial home but it was registered in the respondent’s name. He has not rebutted the rebuttable presumption. He left to study ostensibly for the benefit of the family and to his credit he supported them. But he gave his wife seed and she planted it in the form of the home where she lived with the children. It is only fair that she gets her share of the same. In my view she deserves half a share of the property the matrimonial home and the land on which is stands Njoro/Ngata Block x/xxxx.

98. Hence it is my finding and I hold that of the three properties, the applicant be and is hereby awarded half share of all that property that is Njoro/Ngata Block x/xxxxx.

99. The parties are at liberty to obtain a valuation report to determine each other’s share.

100. Each party should bear their own costs.

DATED, SIGNED AND DELIVERED VIA EMAIL THIS 9TH DAY OF JUNE, 2022. Mumbua T MathekaJudgeIn the presence of;CA EdnaObura Mbeche & Co. Advocatesoburambeche@africaonline.co.keMuchiri Gathecha & Company Advocatesmmuchirigathecha2016@gmail.com