https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10499

SWN v GN (Matrimonial Cause E020 of 2024) [2026] KEHC 10499 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEHC 10499 (KLR) Republic of Kenya In the High Court at Nakuru Matrimonial Cause E020 of 2024 JM Nang'ea, J July 8, 2026 Between SWN Applicant and GN Respondent Judgment 1.The Applicant brings an Originating Summons (hereinafter referred to as "the O.S") dated 19/8/2024 for orders as hereunder;1.A declaration that all that parcel of land known as Nakuru/Municipality Block 2/194 and all the developments thereon were acquired through the joint efforts of the Plaintiff and the Defendant during coverture and are owned by the Plaintiff and the Defendant in the ratio of 50:50 or in such proportions as this honourable court may deem fit.2.An order for division of LR NO Nakuru/Municipality Block 2/194 between the Plaintiff and the Defendant in the ratio of 50:50.3.That the costs of this cause be provided for by the Defendant. 2.The O.S is supported by grounds set out in the body thereof as well as affidavit evidence of the Applicant. She also filed a supplementary affidavit in answer to the Respondent's affidavit in reply to the O.S. 3.Together with the O.S, the Applicant also filed a Notice of Motion of even date praying for injunction orders as stated in the Motion. The court in its Ruling thereon delivered on 16/12/2020 issued an injunction order restraining the respondent from disposing of the disputed property or otherwise interfering therewith pending hearing and determination of the O.S. 4.The Respondent filed an Affidavit in reply to the O.S which elicited the Applicant's supplementary Affidavit. 5.By consent, the parties on 16/12/2024 adopted their respective affidavits as their primary pleadings. The matter was subsequently heard by oral evidence. 6.The Applicant adopted her affidavits sworn on 20/8/2024 and 6/5/2025 as her evidence in this matter. She also tendered her bundle of documents filed herein as exhibits in support of her case. 7.The Applicant testifies that she started cohabiting with the Respondent as spouses around July 1994 at Shabab, Nakuru, until the 8th January 2017 when they separated. During coverture they were blessed with two daughters (L W N & V N N). The Respondent was engaged in the business of buying and selling milk at the time, as she took care of the children. They also managed to buy and develop the above described parcel of land known as Nakuru/Municipality Block 2/194 ("the Municipality property") which became their matrimonial property. The property was registered in the Respondent's name as at the time of bringing these proceedings and is not affected by any encumbrances, according to the Applicant. 8.The Applicant further contends that she made both direct and indirect contribution to acquisition of the Municipality property. She claims to have obtained a loan of Kshs. 50,000/=, evidenced by loan guarantee documents she filed, from Kenya Women Finance Trust for development of the property. The Applicant continues to state that she also helped supervise construction of the alleged Matrimonial home as well as take care of their children. She concedes that the Respondent was also helping in maintenance needs of the children. The couple is said to have constructed 24 rental units on the Municipal property from which the Respondent is collecting Kshs. 145,000/= per month and appropriating the same to himself. The Respondent is not also helping out in maintenance of the children of the union, contends the Applicant. 9.The Respondent opposes the O.S relying on his affidavit sworn on 31/10/2024 in reply thereto. He states that from 1999 or thereabouts he was self employed as a tobacco products distributor for various manufacturers. He would distribute the products on a motorcycle registration number KTF 782 and later bought a motor vehicle registration number KBH 723A for the same purpose. The Respondent claims to have used proceeds from the distributorship to buy the Municipality property, which he developed by putting up 8 rental units as phase 1 of the project. He sold his ancestral property known as Solai/Ndungiri Block 3/58 and also took a loan to finance the 2nd phase of the project. 10.The Respondent further testified that he also ran a tailoring and dress-making business from which he made earnings. When this business was hit by a March 2020 pandemic, he switched to making facemasks, using the earnings to commence construction of phase 3 of his development on the Municipality property, comprising of 8 more rooms. Having purchased and developed the property, the Respondent claims it as his exclusive personal asset. The court is told that he was not married on 11/6/2003 when he bought the property. 11.The Respondent accuses the Applicant of habitually deserting their matrimonial home causing him and their children untold stress. He deposes to taking good care of the children including paying their school fees. He even provided an allowance to the Applicant which assistance continued even after separation. 12.The Respondent continued to testify that in 2018 after the Applicant left their matrimonial home, he married a second wife under Kikuyu Customary Law with whom they got two children. The Municipality Property became the matrimonial home of the second family unit. 13.Learned Counsel for the Applicant reiterate their client’s position that she is entitled to an equal share of the disputed property. Counsel cite and rely on Section 7 of the Matrimonial Property Act which provides;“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.” 14.Section 63 of the Act enacts;“Despite subsection (1), the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights". 15.The court is told inter alia that in the absence of such pre-nuptial agreement and given the long cohabitation of the couple, the Municipal property qualifies as matrimonial property to be shared out equally. 16.The Respondent through his Advocates’ submissions counter that the Municipality property is not matrimonial property, having been bought on 11/6/2003 before the parties’ marriage as per sale agreement exhibited. Title to the property was issued to the Respondent on 8/6/2003. 17.The Respondent also makes reference to sections 6 and 7 of the Matrimonial Property Act on division of matrimonial property. He points out that no pre-nuptial agreement regarding ownership of property was entered into by the parties. Although there was actual cohabitation from July 1994, the Respondent contends that this did not constitute marriage. It is his case that the parties started cohabiting on 20/10/2005 when dowry negotiations were done.18. The Respondent draws the court’s attention to case law in Peter Mburu Echaria vs Priscilla Njeri Echaria (2007) eKLR where the Court of Appeal held that financial, direct or indirect, contribution towards acquisition of property registered in the name one spouse is what entitles the other spouse to a beneficial interest in the property. The contribution claimed has to be proven by evidence. (1985) KLR 480 among other cited authorities cited by Counsel including the (Petition No. 11 of 2020).Supreme Court’s decision in the famous case of Joseph Ombogi Ogentoto vs Martha Bosibori OgentotoThe same holding was arrived at in Njoroge vs Ngari 18.The Respondent maintains that he solely acquired the Municipal property. The Applicant's purported loan was allegedly obtained in 2012, 9 years after the Municipality property was bought in 2003. She could not therefore contribute to the property’s acquisition, argues the Respondent. In any event, the purported loan documents were not tendered by their maker, Kenya Women Finance Trust and had been expunged from the record when objected by the Respondent. 19.Section 6 of the Matrimonial Property Act as;‘’ (a)the matrimonial home or homes; or(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.’’ 20.In T.M.V Vs. F.M.C (2008) eKLR it was elaborated 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.’’ 21.The issues for determination are whether the Municipal property qualifies as matrimonial property so as to entitle the Applicant to a share thereof. 22.The only property in contention herein is the Municipality Property No. L.R Nakuru/Municipality Block 2/194. It is indisputable that the property was purchased by the Respondent in 2003 before the parties formally entered into a marriage relationship. The previous cohabitation between them has not been recognized to amount to marriage in law. There is also no credible evidence of the Applicant's direct financial contribution to acquisition of the property. There is nothing showing that any loan facility extended to the Applicant was applied towards purchasing the property. On the other hand, the Respondent has shown how he raised funds to purchase the property including by selling off some of his other properties. 23.The Applicant, however, made some indirect contribution to improvement of the Municipal property by taking care of the children and providing companionship inter alia after the acquisition as contemplated by the law in section 2 of the Matrimonial Property Act. This entitles her to a share of the property also considering that she continues to take care of the children she had with the Respondent. 24.That the Applicant unnecessarily and unjustifiably deserted the Respondent has not also been quiet rebutted by evidence to the contrary. 25.In the end, the court declines to make the declaration the Applicant craves as per prayer (a) of the Originating Summons, Applicant having failed to show that the Municipal property was acquired during subsistence of the marriage. 26.In recognition of her indirect contribution to improvement of the disputed property, however, the Applicant is granted 20% of the Municipal Property. 23.The Property shall be valued by a registered Valuer within 60 days from the date hereof for the purpose of determination of the Applicant's actual monetary share. The Respondent shall then pay off the Applicant to the extent determined by the court. 27.The parties are at liberty to apply. 28.No order is made as to the costs of the Originating Summons, this being a family matter. 21.Judgment accordingly. JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF JULY, 2026.J.M NANG’EA, JUDGE.In the presence of;Ms Mukira Advocate for the ApplicantMr. Muriithi Advocate for the RespondentCourt Assistant (Jeniffer)