https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10238

**REPUBLIC OF KENYA** **IN THE HIGH OF KENYA AT MERU** **CIVIL APPEAL NO. E094 OF 2023** **SUSAN MATHANJE SAMUEL...........................……..……….APPELLANT** **VERSUS** **DICKSON NTHIGA NYAGA…………...….………..…………RESPONDENT** **JUDGMENT** 1. This Appeal arises from the Judgment of the Learned Chief Magistrate Hon. T. Gesora (C.M) delivered on 24.5.2023 in Maua Chief Magistrates’ Court Case No. 185 of 2019, wherein the trial Court held that LR. No. Ithima/Ntunene/3273 would be valued, sold, and the proceeds split between the parties or in the alternative, either party was at liberty to buy out the other party’s ½ interest, and L.R No. Amwathi/Maua/15361, occupied by the Appellant, was held in trust by the Respondent for their children and future generations. 2. Aggrieved by the said Judgment, the Appellant set forth the following grounds in the Memorandum of appeal dated 15th June, 2023; 1. **The Learned trial Magistrate erred in law and fact in delivering a Judgment which was in all respects against the laid down statutory provisions, the laws of natural justice, as well as the laws of equity, as relates to the issues presented to the trial court by the Plaintiff therein.** 2. **The Learned trial Magistrate erred in law and fact in ordering that the Appellants' land parcel number THIMA/NTUNENE/3273 and AMWATHI/MAUA/15361 formed part of the parties matrimonial property, notwithstanding the fact that the proceedings before the trial court didn’t relate to determination of matrimonial property cause, thus totally misdirecting itself and consequently making a wrong conclusion.** 3. **The Learned trial Magistrate erred in law and fact in giving orders which didn't form part of the prayers brought forth by the Plaintiff therein thus blatantly diverting from the real issues for determination by the trial court, and thus making the wrong conclusion.** 4. **The Learned trial Magistrate erred in law and fact in ignoring the provisions of Section 26 of the Land Registration Act, 2012 which vests absolute ownership/proprietorship of land, to the holder of a title document subject to the overriding interests listed under Section 28 of the said Act, notwithstanding the fact that, the land parcels number ITHIMA/NTUNENE/3273 and AMWATHI/MAUA/15361 did not form part of the matrimonial property, and thus the rule on overriding interests did not apply over the said suit lands.** 5. **The Leaned trial Magistrate erred in law and fact in concluding that there was a valid marriage between the parties herein and yet this was not in all perspectives among the prayers sought for determination by the Plaintiff, and notwithstanding that there was no sufficient evidence to prove of any form of marriage between the parties as outlined under Section 6 of the Marriage Act, 2014.** 6. **The Learned trial Magistrate erred in law and fact in ordering that the property to wit Land parcel number ITHIMA/NTUNENE/3273 be shared equally amongst the parties before it. notwithstanding the fact that, the land legally belonged to the Appellant herein as witnessed under the title document and thus depriving the Appellant herein her right to ownership of property as enshrined under Article 40 of the Constitution of Kenya, 2010.** 7. **The Learned trial Magistrate erred in law and fact in not taking into account, and appreciating in totality the evidence presented before it by the defendant therein, to the effect that, the suit lands mentioned herein above entirely belonged to the defendant (the appellant herein) and that the appellant had genuine titles to the same, and that legality of the said title documents had not been challenged in any way.** 8. **The Learned trial Court erred in law and fact in engaging in determining issues relating to the existence of a marriage between the parties herein and yet the suit before it was a Land and Environment suit.** **Evidence at Trial** 1. **PW1 Dickson Nthiga Nyaga**, the Respondent herein, adopted his statement dated 7/10/2019 as his evidence in Chief and produced the documents filed therewith as exhibits. He told the Court that the Appellant was his wife from 2002 until 2019, when she walked out. They had 3 children, and he sought a declaration that L.R Nos. Ithima/Ntunene/3272 and Amwathi/Maua/15361 are family land, duly registered in the name of the Appellant in trust for him and his children. The Appellant bought L.R No. Ithima/Ntunene/3273, but he developed it, with approximately 1.8 million. 2. **PW2 Paul Munyi Ngare**, the Respondent’s Cousin, adopted his statement recorded on 12/2/2021 as his evidence in chief. He told the Court that the title to Amwathi/Maua/5361 was in the Appellant’s name, although it was the Respondent who paid the purchase price. 3. **PW3 Morris Mutwiri**, a builder, adopted his statement recorded on 21/10/2020 as his evidence in chief. He told the court that he worked for the Respondent from 2014 to 2019, and he never saw the Appellant at the Kabauni land. 1. **PW4 Joseph Mbai**, a Land Adjudication and Settlement Officer, told the court that according to the records in their offices, parcel No. 5361 belonged to Patrick Njebiu Njoka, Paul Munyi Ngari and Susan Muthanje, which was subsequently subdivided into 15361 and 15493 and 15361, according to the register, was owned by Fredrick Ntongai M’Erimba. 2. **DW1 Susan Muthanje**, the Appellant herein, adopted her statement dated 9/7/2020 as her evidence in chief and produced the documents filed therewith as exhibits. She told the Court that she and the Respondent stopped seeing each other in January 2014, and they did not have a matrimonial home. The Respondent lived in his brick house situated at Ithima/Ntunene/3589, and she used to visit him there up to 2017, when he became violent. She bought Ithima/Ntunene/3273 herself and Amwathi/Maua/5361 from Patrick Njoka Njebiu. When she and the Respondent separated, Ithima/Ntunene/3273 had 3 timber structures, and she started constructing permanent structures in 2014 using a loan from Solution Sacco, where she was a member, without any financial assistance from the Respondent. **Submissions** 1. The Appellant, through the Firm of R.K Mwenda & Associates, filed submissions dated 27/6/2025. Counsel submitted that the Appellant independently acquired L.R Nos. Amwathi/Maua/15361 and Ithima/Ntunene/3273 utilizing her earnings and funds from loans. Counsel contended that the Appellant never cohabited with the Respondent in any property as a wife or under any circumstances that would give rise to a presumption of marriage or joint ownership, and cited ***PWK v EWK (Civil Appeal 71 of 2023) [2024] 12146 (KLR) and VAO v KAKN (Civil Appeal E059 of 2023) [2024] KEHC 16812 (KLR)***. Counsel faulted the trial court for finding that the said properties constituted matrimonial properties subject to equal sharing, despite no lawful marriage existing between the parties, and cited ***Echaria v Echaria (2007) eKLR, TMW v FMC (2018) eKLR, MNK v POM [2023] KEHC 14703 (KLR), Wilfred Machage v Okiya Omtatah Okoiti & 2 Others (2019) eKLR, Isaac Gachungu Wanjohi v Martha Wanjiru Wanjohi [2021] KECA 262 (KLR) and Twala v Twala (1993) ZASCA 95***. 1. The Respondent, through the Firm of Mutuma & Koskei Advocates, filed submissions dated 1/4/2026, citing ***MNK v POM (2022) eKLR***, where it was held that ELC has jurisdiction to determine trust and contribution in property disputes between spouses. Counsel asserted that fraud defeats indefeasibility of title, and cited ***Arthi Highway Developers Ltd & West End Butchery & Others (2015) eKLR and Muthoni v Mwaniki (2023) eKLR***. Counsel contended that the trial Court’s reliance on cohabitation, joint property dealings and admissions in children’s Court proceedings was legally sound and consistent with **Section 119 of the Evidence Act**, and cited ***Mary Nyambura Kangara v Paul Ogari Mayaka (2021) eKLR, Godwilly v Manochi [2025] KEHC 7102 and AWK v JS (Children’s Appeal Case E06 of 2020) [2021] KEHC 3863 (KLR)***. Counsel further contended that **Article 40 of the Constitution** does not protect property acquired through fraud or held in trust, and cited ***Chemei Investments Ltd v Attorney General & Others (2018) eKLR***. **Analysis and Determination** 1. This being a first appeal, the Court is obligated to reconsider and re-evaluate the evidence adduced in the trial Court and draw its own conclusions. 2. In ***Selle & another v Associated Motor Boat Co. Ltd [1968] EA***, the court held as follows: ***“This court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court is by way of retrial and the principles upon which this court acts in such an appeal*** ***are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”*** 1. I have considered the appeal herein, the trial Court’s Judgment, which is the subject of this appeal, as well as the submissions by Counsel. 2. The crux of this appeal is whether **L.R Nos. Ithima/Ntunene/3273 and Amwathi/Maua/15361 (hereinafter referred to as the suit properties)**, which are undisputedly registered solely in the name of the Appellant, are matrimonial properties. 3. The undisputed facts are that the Appellant and the Respondent cohabitated from 2002 to 2019, from which union 3 children were born. 4. It is well settled that the characterization of property as matrimonial is contingent upon proof of a valid marriage between the parties. Whereas the Respondent asserts that he was married to the Appellant, the Appellant strenuously refutes such claims, maintaining that she never lived with him at any material time. 5. The parameters within which a presumption of marriage can arise were highlighted by the Supreme in ***MNK v POM & another (Petition 9 of 2021) [2023] KESC 2 (KLR) (27 January 2023) (Judgment***),as follows; ***“1. The parties must have lived together for a long period of time. 2. The parties must have the legal right or capacity to marry. 3. The parties must have intended to marry. 4. There must be consent by both parties. 5. The parties must have held themselves out to the outside world as being a married couple. 6. The onus of proving the presumption is on the party who alleges it. 7. The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive. 8. The standard of proof is on a balance of probabilities.”*** 6. In ***Yawe v Public Trustee (Civil Appeal 13 of 1976) [1976] COAEA 1 (KLR) (Civ) (6 August 1976) (Judgment)***, the Court of Appeal espoused that; ***“Long cohabitation as man and wife gives rise to a presumption of marriage in favour of the appellant. Only cogent evidence to the contrary can rebut such a presumption, see re: Taplin - Watson v Tate (1937) 3 ALLER 105. The trial judge did not consider this factor. The trial judge was not satisfied that the appellant had established, on a balance of probabilities, that the Kikuyu customary marriage was performed in accordance with all the necessary ceremonial rituals. It is not clear whether he found that the marriage was not valid because all the rituals were not performed, or that no marriage of any kind had taken place at all. However in considering whether there was a marriage the trial judge ought to have taken account of the presumption of marriage in the appellant’s favour. Such a presumption carries considerable weight in the assessment of evidence. Once that factor is put into the balance in the appellant’s favour, the scale must tilt in her direction.”*** 7. The Respondent has produced a letter from the chief, Ntunene Location, dated 6/5/2016, and an affidavit sworn by him on 21/5/2019, evincing that the parties herein were married. The Respondent further alluded to dowry negotiations and the payment of the attendant dowry price. 8. I find that the long cohabitation between the parties herein from 2002 to 2019 is sufficient to warrant the inference of a presumption of marriage. 9. The Respondent has exhibited receipts showing that he contributed towards the development of L.R No. Ithima/Ntunene/3273 and paid utility bills thereto. As for L.R No. Amwathi/Maua/15361, PW2 reiterated that the Respondent single-handedly funded the purchase thereof, without any financial contribution from the Appellant. On her part, the Appellant did not tender any evidence whatsoever to establish any contribution to the development of L.R No. Ithima/Ntunene/3273 or the purchase of L.R No. Amwathi/Maua/15361. 10. Upon consideration of the entirety of the evidence led, I find that the presumption that the suit properties were held in trust for the Respondent and the children remains uncontroverted, notwithstanding their registration in the Appellant’s name. 11. The upshot from the foregoing analysis is that the appeal is in want of merit and it is accordingly dismissed. 12. Parties to bear own costs of the Appeal. **DATED AND DELIVERED AT MERU THIS 13TH DAY OF JULY, 2026.** **S.M. GITHINJI –JUDGE** **13/7/2026** **In the presence of:-** Miss Nyakundi for the Appellant (absent) Mr. Mutuma for the Respondent (present)