https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8420

SWW v EWG (Matrimonial Cause E020 of 2021) [2026] KEHC 8420 (KLR) (16 June 2026) (Judgment) Neutral citation: [2026] KEHC 8420 (KLR) Republic of Kenya In the High Court at Kiambu Matrimonial Cause E020 of 2021 A Mshila, J June 16, 2026 Between SWW Applicant and EWG Respondent Judgment 1.Before court is the Originating Summons dated 10th December, 2021 and brought under Sections 2, 6, 7, 12 and 17 of the Matrimonial Property Act 2013, Section 6 of the Marriage Act, Article 45 (3) of the Constitution and all enabling provisions of the law. The Applicant sought for orders;-a.That the Honourable Court be pleased to issue a declaration that the listed properties set out in the schedule herein below and acquired by the joint effort and funds of the Applicant and the Respondent during the subsistence of the said marriage and registered in the sole name of the Respondent and also in possession of the Respondent constitute matrimonial property and are owned jointly by the Applicant and the Respondent to wit;Schedule Of Propertiesi.Land No. Thika Municipality Block 9/xxxii.and No. Thika Municipality Block 11/xxxiii.Land No. Nyandarua/Malewa/xxxx.iv.Stall No. 26 Jamhuri Market Thika Town.v.[Particulars Withheld] Ltd Plot No. xxxxb.That a declaration do issue that the property known as Plot No. 1xxx Jamhuri Market Thika sold by the Respondent was owned jointly by the Applicant and the Respondent and that the Applicant is entitled to a share thereof or the proceeds therefrom.c.That a declaration do issue that the Respondent holds the above stated properties in trust for the Applicant.d.That the above stated properties be settled and/or divided and/or sold and the proceeds of the said division and/or sale be shared to each party in such a manner and proportions as this Honourable Court deems fit and just.e.That the Respondent by himself, his agent and/or servants be restrained from alienating, encumbering or in any other manner disposing off or selling the above stated properties as listed in the schedule. 2.The application is premised on the grounds that the Applicant and the Respondent solemnized their marriage on 3/12/1988 but the said marriage has since ended. The Applicant is entitled to a share of the listed properties as the same were obtained during the subsistence of the marriage with the joint effort of both parties. 3.SWW in her supporting affidavit deposed that she underwent a Kikuyu customary marriage with the Respondent sometime in January, 1979 and they were blessed with three issues. They later solemnized their marriage on 3/12/1988 but the marriage has since ended and a decree absolute was issued on 6/11/2021 by the Chief Magistrate’s Court at Thika. She listed the properties that were acquired through their joint effort both directly and indirectly during the subsistence of their marriage as provided in paragraph 1 of the Originating Summons. She averred that the Respondent is in possession of the title documents for land parcel number Nyandarua/Malewa/xxxx as such she could not secure a copy. She solely supervised the construction of their matrimonial home that was built on land parcel number Thika Municipality Block 9/xxx as well as kept records to show the Respondent. Further, she stated that Togetherwith the Respondent they managed one of their businesses being [Particulars Withheld] Limited which was registered in both their names and that most of their properties listed above were purchased from the proceeds of the said business. The Respondent was said to have disposed of Plot No.1xxx Jamhuri Market Thika after throwing her out of the matrimonial home and the said property having been acquired during the subsistence of the marriage, she is entitled to a share of the proceeds. 4.EWG filed his replying affidavit dated 12th July, 2022. He averred that even though some of the properties mentioned were acquired during the subsistence of the marriage, he singlehandedly purchased and/or developed the said properties without the Applicant’s financial contribution as he was the sole bread winner while the Applicant was a house wife. He contended that the Applicant did not contribute any money towards the acquisition of the matrimonial properties as [Particulars Withheld] Ltd Plot NO. xxxx was purchased on 2/6/1979 before his marriage to the Applicant as such the property is not matrimonial. Land Parcel No. Thika Municipality Block 11/xxx was purchased on 24/4/1997 from JKKA for Kshs. 200,000/=. Land Parcel No. Thika Municipality Block 9/xxx was purchased from PMK for Kshs. 150,000/= and the Applicant was only given money to buy building materials and pay the workers during construction. The Applicant was said to have supervised the construction but did not contribute any money. He denied that most of the properties were purchased from the proceeds of the [Particulars Withheld] Kenya business as alleged by the Applicant. He averred that it is the Applicant who deserted the matrimonial home bringing the cohabitation to an end. 5.In her supplementary affidavit dated 1st August, 2022, the Applicant herein contended that together with the Respondent they jointly ran a spare parts business being [Particulars Withheld] Kenya whose proceeds contributed towards the acquisition of most of the matrimonial properties and that she was in charge of the business as the Respondent was gainfully employed. She contended that she was only a housewife during the first years of their marriage after which she was fully engaged in running various family businesses. She averred that her income supplemented the Respondent’s income as such it cannot be stated that she did not contribute anything towards acquisition of the matrimonial properties. The Respondent kicked her out of the business as well as the matrimonial home in 2006 and due to her health issues she moved to the USA where her daughter resides so as to receive treatment and upon returning she found that the Respondent had sold the [Particulars Withheld] business. She contended that in as much as the properties herein are registered in the name of the Respondent, the same does not mean that she did not contribute towards their acquisition. She was married customarily in 1979 as such [Particulars Withheld] Ltd Plot xxxx forms part of the matrimonial property. She stated that she also made non-monetary contribution. 6.During the hearing, the Applicant herein SWW (PW1) adopted her supporting affidavit as well as her supplementary affidavit as her evidence in chief. She also adopted the documents she had annexed. She stated that the properties listed were registered in the name of the Respondent but she had contributed. 7.In cross-examination, she stated that there were no photographs during her customary marriage ceremony. The Witeithie property was acquired in 1979 when she got married. Nyandarua/xxxx was acquired when she was bringing up their children. Thika Municipality Block 9/xxx was their matrimonial home and that it was bought by both parties. They started a business called Mzima Spare parts shop. She got money from the business and contributed towards the purchase of materials. She borrowed Kshs. 200,000/= to buy Thika Block 11/xxx together with the Respondent. Jamhuri Market was acquired when she was in Nyandarua bringing up children. 8.EWG (DW1) wished to adopt his replying affidavit as his evidence in chief as well as his documents. He urged the court to grant him 70% of the shares and the Applicant to be granted 30%. 9.In cross-examination he stated that the wedding was in 1988 and prior to the wedding they lived as husband and wife. The Respondent worked as a Farm Manager from 1981. [Particulars Withheld] was registered in 1991. The Applicant worked at the business full time as he was employed. The properties were acquired using the money for the business. The Applicant oversaw the construction of matrimonial home. 10.After the full hearing the parties were directed to file and exchange brief written submissions. Applicant’s Submissions 11.The Applicant submits that the customary ceremony was done in 1979 but during that time there were no photos. In any case the Respondent was said to have confirmed to the court that he paid bride price to the Applicant’s parents. The Respondent was said to have confirmed during the hearing that he was cohabiting with the Applicant and lived as husband and wife until they solemnized their marriage and that they had their first born in 1979. The court was urged to consider that marriage had been proved on a balance of probabilities. Reliance was placed in the case of Mary Njoki vs John Kinyanjui Mutheru (1985) eKLR. The Applicant submits that the suit properties are matrimonial properties and that she was involved in the running of [Particulars Withheld] jointly with the Respondent and proceeds were used to purchase the suit properties and that she also made non-monetary contribution by running the household. Reliance was made in the Supreme Court case of 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). It was submitted that during the hearing the Respondent confirmed that he jointly ran [Particulars Withheld] with the Applicant and that the same was registered in their joint names. The Respondent also confirmed that [Particulars Withheld] was his main source of income which enabled the Respondent to purchase the suit properties. The properties were registered in the Respondent’s name on behalf of the family as it was patriarchal nature of the society. The court was urged to determine the share entitled to the Applicant in respect of the matrimonial properties as the Applicant made monetary contribution through [Particulars Withheld] and non-monetary contribution by taking care of the house hold and by paying bills. Respondent’s Submissions 12.The Respondent submits that the marriage between the parties was solemnized on 3rd December, 1988. The Applicant had failed to prove the alleged Kikuyu Customary marriage celebrated in 1979 January as the Applicant failed to prove that dowry was paid by the Respondent as such [Particulars Withheld] Ltd Plot NO. xxxx which was acquired on 2/6/1979 does not form matrimonial property. Reliance was placed on among other cases the Court of Appeal case of Kimani vs Gikanga (1965) EA 735. The Respondent submits that the Applicant did not tender any documentary proof as to how the proceeds from [Particulars Withheld] contributed towards the acquisition of the suit properties. There was no proof of the monthly shopping as well as house girl pay. The Respondent provided evidence that he acquired the suit properties without any contribution from the Applicant as she was a house wife. The Applicant was said to have made minimal indirect non-financial contribution. The Respondent submits that there is a rebuttable presumption that the property acquired in the name of one spouse is being held in trust for the other spouse. Reliance was made in the case of F. S vs E.Z (2016) eKLR. The Respondent urged the court to divide land no. Thika Municipality Block 9/xxx being the matrimonial property at 70% and 30% in favour of the Respondent as he solely purchased the land while the Applicant only supervised the construction. Reliance was placed in the case of V.W.N vs F.N (2014) e KLR. With respect to distribution of Land no. Thika Municipality Block 11/xxx the Respondent contends that he paid Kshs. 200,000/= as such he should get 80% of the share of the property. The court was urged to find that distribution of land no. Nyandarua/Malewa/xxxx cannot issue as there is no proof of ownership of the said parcel of land as the Applicant claimed that the Respondent is in possession of the title document and the court cannot assume ownership. With regard to Stall No. 26 Jamhuri Market Thika Town the Applicant was said to have failed to provide details to the alleged sale as such there is nothing to distribute. Lastly, [Particulars Withheld] Ltd Plot No. xxxx was said to have been acquired on 2/6/1979 which was before the solemnization of the marriage as such the same is not subject to matrimonial property distribution. Issues For Determination 13.Having considered the Applicant’s evidence on the division of matrimonial property, the Respondent’s evidence and the parties written submissions, the issues arising for determination are-i.Whether there existed a customary marriage between the parties herein prior to solemnisation;ii.Whether the suit properties constitute matrimonial properties;iii.Whether the Applicant is entitled to a share of the matrimonial properties (if any); Analysis Whether there existed a customary marriage between the parties herein prior to solemnisation; 14.The Applicant and the Respondent solemnized their marriage on 3/12/1988. It is the evidence of both parties that before then, they were both living as husband and wife. The Applicant avers that they celebrated their customary wedding sometime in 1979 and that their first born was born on 20/10/1979. This according to the Applicant was enough to prove customary marriage as photographs were not available during that time. 15.Customary marriage is established by showing that the essential rites and ceremonies of the applicable customary law were substantially complied with. Long cohabitation and public repute may also give rise to a presumption of marriage where direct evidence of all customary rites is unavailable. 16.Reference the case of Hortensiah Wanjiku Yawe vs The Public Trustee (1976) eKLR where it was held that the existence of customary marriage is a question of fact to be proved by evidence. 17.There is direct evidence that the parties herein both lived as husband and wife as from 1979 though their marriage was solemnized in 1988. Their first born was born in the year 1979. This long cohabitation can be inferred that the parties herein were married as from 1979. Reference the case of Mary Njoki vs John Kinyanjui Mutheru (1985) eKLR. 18.As both parties agreed that they were cohabiting as husband and wife this court is satisfied that there existed a customary marriage as from 1979 prior to the solemnisation of the marriage. Whether the suit properties constitute matrimonial properties; 19.The Applicant has requested this court to declare the suit properties herein as matrimonial properties as they were bought during the subsistence of the marriage. 20.The Respondent does not dispute that the properties are matrimonial properties save for [Particulars Withheld] Ltd Plot NO. xxxx which he alleges was acquired on 2/6/1979 which was before the solemnization of their marriage which took place on 3rd December, 1988. 21.Section 6 of the Matrimonial Property Act 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. 22.Refer to the case of T.M.V. vs F.M.C (2018) eKLR where Nyakundi J. opined 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.” 23.This court having found that there existed a customary marriage prior to solemnisation, this Court is therefore satisfied that the suit properties herein constitute matrimonial properties as they were acquired during the subsistence of the marriage between the parties herein. Whether the Applicant is entitled to a share of the matrimonial properties (if any); 24.The Applicant contends that as much as the properties herein are registered in the sole name of the Respondent she is entitled to a share as she made contribution towards their purchase and development both direct and indirect. 25.The Applicant alleges that together with the Respondent they owned [Particulars Withheld] Kenya which business dealt with the sale of spare parts and whose proceeds were used to buy the properties herein. 26.It was the Applicant’s contention that she made monetary contribution as she contributed towards the acquisition and development of their matrimonial home as well as the other properties and that she is the one who solely supervised the construction of their matrimonial home. She also made non-monetary contribution by taking care of the house hold and by paying bills. 27.On the other hand, the Respondent contends that he solely acquired and developed the properties herein without the help of the Applicant as the Applicant did not have income as she was a housewife. 28.He submitted that he purchased [Particulars Withheld] Ltd Plot No. xxxx on 2/6/1979 as such the same is not matrimonial property. He also contended that he bought Land Parcel No. Thika Municipality Block 11/xxx on 24/4/1997 from JKKa for Kshs. 200,000/=. The Land Parcel No. Thika Municipality Block 9/xxx was purchased from PMK for Kshs. 150,000/=. He denied that most of the properties were bought with proceeds from [Particulars Withheld] as alleged by the Applicant. He contended that the Applicant only supervised and that he gave the Applicant money to buy building materials and pay the workers during construction. 29.Further, the Respondent claimed that the Applicant had failed to produce evidence that the proceeds from [Particulars Withheld] were used to buy the suit properties herein. He also contended that he had provided evidence that the suit properties herein were solely acquired by him. 30.With regard to contribution, 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.” 31.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. 32.The Respondent has placed before this court evidence that he paid Kshs. 200,000/= towards the acquisition of Land no. Thika Municipality Block 11/xxx and Kshs. 150,000/= towards the acquisition of Land No. Thika Municipality Block 9/xxx being their matrimonial home. 33.Be that as it may, there is also evidence that the Applicant and the Respondent were both registered as the owners of [Particulars Withheld] spare parts business whose proceeds contributed to the purchase and/or development of most of the properties herein. 34.There is evidence that the Respondent was employed as such the Applicant supervised the construction, run the [Particulars Withheld] business and also took care of the house hold as well as paying bills. 35.Distribution of matrimonial properties is based on each party’s contribution both monetary and non-monetary. 36.In the case of BWK vs SMM (2024) KEHC 10489 (KLR) the High Court underscored that division of matrimonial property depends on the contribution of each spouse. The court noted that non-monetary contributions are recognized and must be proven to determine the share each spouse is entitled to. 37.Further, in the case of PNN vs ZWN (2017) eKLR the Court of Appeal held that matrimonial property should be distributed according to the proven contribution of each spouse, whether monetary or non-monetary. 38.In the circumstances, therefore, and bearing in mind the evidence on record, this Court is satisfied that on a balance of probabilities the Respondent made the bigger contribution towards the acquisition and the development of the matrimonial properties herein. 39.Nevertheless, the Court is satisfied that the Applicant by virtue of running the business being [Particulars Withheld], supervising the construction of the matrimonial home and taking care of the house hold while also paying the bills therein, the Applicant made both monetary and non-monetary contribution but the same cannot be said to match the contribution made by the Respondent. 40.Bearing in mind the above provisions of the law as well as case law, this court is satisfied that the parties herein should share the suit properties herein at 30% and 70% in favour of the Respondent. Findings And Determinations 41.For the forgoing reasons this Court makes the following findings and determinations;i.The application is hereby found to be partially with merit.ii.This Court finds that there existed a customary marriage between the parties herein prior to solemnisationiii.It is hereby declared that the entirety of the properties listed hereunder in the Schedule were all acquired during the pendency of the marriage and constitute matrimonial property.Schedule Of PropertiesLand No. Thika Municipality Block 9/xxxLand No. Thika Municipality Block 11/xxxLand No. Nyandarua/Malewa/xxxx.Stall No. 26 Jamhuri Market Thika Town.[Particulars Withheld] Ltd Plot No. xxxxiv.It is hereby declared that the Applicant is entitled to rights to the properties on a 30:70 basis the greater share being in favour of the Respondent. The above stated properties be settled and/or divided and/or sold and the proceeds of the said division and/or sale be shared to each party on the basis of 30:70;v.This being a family matter each party to bear their own costs.Orders Accordingly DATED SIGNED AND DELIVERED VIA TEAMS AT VOI THIS 16TH DAY OF JUNE, 2026A.MSHILAJUDGEIn the presence of;Sanja/Trizah – Court AssistantsWambui - For the ApplicantN/A - For the Respondent