Ombati v Moronge (Commercial Case E009 of 2024) [2026] KEHC 8088 (KLR) (8 June 2026) (Judgment)

Ombati v Moronge (Commercial Case E009 of 2024) [2026] KEHC 8088 (KLR) (8 June 2026) (Judgment) Neutral citation: [2026] KEHC 8088 (KLR) Republic of Kenya In the High Court at Nakuru Commercial Case E009 of 2024 JM Nang'ea, J June 8, 2026 Between Shilley Kemuma Ombati Applicant and Zacharia Kibadengi Moronge Respondent Judgment 1.By Originating Summons dated 14th November 2024 (hereinafter referred to as “the O.S.”) the Applicant seeks reliefs as hereunder;1.That a declaration be made by the Honourable Court that provides that properties listed below, 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:a.Plot Numbers 20 & 21 located in Njoro/Njoro Block 1/209 currently known as land parcel number Njoro/Njoro 1/1021.b.Title numbers Donyo Sabuk/Komarock Block 1/69522 and Donyo Sabuk/Komarock Block 1/69523.c.Title Number Nakuru/Piave/1545.d.Title Number Kiambogo/Kiambogo Block 1/716. (sic).1.That a declaration be made by the Honourable Court that the matrimonial property Nakuru/Piave/1545 situate at Njoro be issued to the Applicant.2.That the Honourable Court be pleased to issue an order that the above-mentioned properties be shared in a just equitable manner proportionate to the degree of contribution.3.Spent.4.That the cost of this application and incidentals thereto be borne by the Respondent. 2.The O.S. is supported by affidavit of the Applicant purportedly sworn on the same date of the Application. Telling the court that she is a teacher by profession, she inter alia avers that she got married to the Respondent in 2014 under Kisii customary law, and the marriage was solemnized before the Registrar of Marriages on 23/10/2020. Owing to the Respondent’s alleged extra marital affairs and abuses, the Applicant filed a Petition for dissolution of the marriage and obtained a divorce decree nisi on 4/10/2020. 3.The Applicant further states that during the marriage they acquired various properties across the country to wit; Nakuru/Piave 1545, Kiambogo/Kiambogo Block 1/716, Donyo Sabuk/Komarock Block 1/69522 and Donyo Sabuk/Komarock Block 1/69523. The first two properties above are said to have been solely acquired by the Applicant while the other two properties were obtained with the joint effort of the couple. 4.According to the Applicant, she purchased Nakuru/Piave 1545 through loan proceeds amounting to Kshs. 1,345,000/= which loan she was still servicing as at the time of bringing these proceedings. As regards Kiambogo/Kiambogo/Block 1/716, she solely purchased it for Kshs. 330,000/= as per sale agreement exhibited. Out of love and affection, the Applicant claims to have included the Respondent as co-purchaser of this property. 5.The Applicant continues to contend that she contributed Kshs. 400,000/= towards purchase of Donyo Sabuk/Komarock Block 1/69522 and 69523 alluded to above. 6.The Applicant adds that she trusted the Respondent as her husband, hence registration of most of the properties in question in his name. Apart from the stated financial contribution, she also allegedly made non-monetary contribution in the form of companionship and management of their matrimonial home and properties. 7.In the premises, the Applicant proposes equitable distribution of the stated properties between the Respondent and herself in the ratio of 70% to 30%. 8.The Respondent opposes the O.S vide an affidavit in reply said to have been sworn on 3/3/225. He too states that he is a teacher and that the Applicant was his spouse. According to the Respondent, they jointly acquired plot Nos. 20 and 21 located in Njoro/Njoro Block 1/209 as per sale agreement attached to his affidavit. Although he claims that he was the one who paid the purchase price, he has no objection to each of them taking one of the plots. 9.With respect to the properties described as Donyo Sabuk Block 1/69522 and 69523, the Respondent claims to have contributed to their acquisition and suggests equal sharing of the two properties. 10.Concerning Kiambogo/Kiambogo Block 1/716, the Respondent deposes that they jointly bought the property. He states that he made a contribution of Kshs. 200,000/= while the Applicant topped up with Kshs. 130,000/=. According to the Respondent, the Applicant was the one who made the payment and the receipt issued in her name. He, however, points out that the sale agreement is in his name. He also proposes equal sharing of this property. 11.While claiming that Nakuru/Piave/1545 was jointly acquired property, the Respondent explains that a dispute later arose after the seller’s wife protested that she did not consent to sale of their matrimonial home. Consequently, transfer of the property in favour of the parties herein was not executed. The Respondent advises the Applicant to engage the seller for a possible solution. 12.The Respondent further contends that he is the one who has been managing the properties in issue including paying relevant legal fees. The Applicant is said to always complain of expensive charges relating to management of properties. 13.The Respondent is therefore of the opinion that the properties in question be distributed as per his proposal. 14.The Applicant put in a further affidavit reiterating her evidence. She contends that the Respondent has confirmed that she is the sole purchaser of Nakuru/Piave/1545. She wants the property to herself adding that she was still repaying the loan she obtained to acquire the property and that the Respondent never made any contribution to the purchase. 15.The Respondent, however, concedes transfer of Kiambogo/Kiambogo Block 1/716 was frustrated and cannot be available for sharing. She nevertheless insists that the Respondent never made any financial contribution to acquisition of the property. 16.Since transfer of the above two properties has not been effected, in any event, the Applicant thinks that they don’t form part of the matrimonial property herein and wants the properties absolutely to herself. 17.The Applicant suggests that plot numbers 20 and 21 forming part of Njor/Njoro Block 1/209 goes to the Respondent while Donyo Sabuk/Komarock Block 1/69522 and 969523 be equally distributed between the parties according to their respective contribution. 18.The parties reiterated their affidavit evidence in their oral testimony. 19.Both parties filed written submissions which I have perused against the evidence and the pleadings. It is trite law that matrimonial property is property acquired by spouses during their marriage. Contribution to acquisition may be direct financial contribution or indirect contribution as by taking care of the family as recognized under section 2 of the Matrimonial Property Act. The court is required to assess the parties’ contribution, if any, and grant them their fair shares of identified matrimonial property. 20.Regarding Njoro/Njoro Block 1/209, both parties seem to concur that it be shared out equally although the Applicant appears not to claim this property. Rather inconsistently, the Respondent appears to claim the property exclusively in his final submissions. 21.I shall grant this property to the Respondent, the Applicant not staking a claim thereto. 22.The parties agree that the properties known as Donyo Sabuk/Komarock Block 1/69522 and 69523 were jointly acquired. Each party may take one of the properties or sell both and share proceeds equally if there is no agreement. 23.Concerning Nakuru/Piave/1545 and Kiambogo/Kiambogo Block 1/716, I see no actual evidence of the Respondent’s financial contribution to acquisition thereof. There is also no evidence that they are registered in the names of both or either of the parties. Although it is shown that they were bought by the parties transfer thereof has not been made by the sellers. The properties cannot be shared out as there is no evidence it is matrimonial property considering that titles are still in the names of the purported sellers. 24.In the final analysis, it is ordered as follows;-a.Both parties may agree between them as to who takes Donyo Sabuk/Komarock Block 1/69522 and 69523, failure to which the properties may be disposed of and proceeds shared equally.b.As the Applicant does not claim Njoro/Njoro Block 1/209, the Respondent is granted the property exclusively.c.There is no evidence that Nakuru/Piave/1545 and Kiambogo Block 1/716 are matrimonial property as found by the court. I make no orders thereon.d.This being a family matter, the parties shall bear their own costs of the proceedings. 25.Judgement accordingly. J. M. NANG’EA, JUDGE.JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 8TH DAY OF JUNE, 2026.In the presence of:Applicant’s Advocate, Ms DayeRespondent, Present in personCourt Assistant (Jeniffer)J. M. NANG’EA, JUDGE.