T N K v F K W (Civil Appeal E007 of 2025) [2026] KEHC 9873 (KLR) (25 June 2026) (Judgment)

T N K v F K W (Civil Appeal E007 of 2025) [2026] KEHC 9873 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9873 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E007 of 2025 AN Ongeri, J June 25, 2026 Between T N K Appellant and F K W Respondent Judgment 1.This Originating Summons dated 2nd December 2014 was filed in the High Court of Kenya at Machakos under Civil Case Number 196 of 2014 by T N K against her spouse, F K W, who is the respondent. 2.This application is brought pursuant to Sections 2, 6, 7, and 12 of the Matrimonial Property Act of 2013, as well as Article 45(3) of the Constitution of Kenya 2010, alongside all other enabling legal provisions. 3.Through this summons, the applicant requests the court to determine several critical issues regarding multiple specified parcels of land and commercial enterprises. 4.She seeks a formal declaration that land parcel numbers Plot Number 887 Kiboko, Machakos/Kiandani/3729, Agricultural Plot Numbers 831 and 2034, five other parcels within Malili Ranch, land parcel Muputi/Kiima-Kimwe/2233, Plot Number 7 and one more parcel within Kiboko Market, Plot Number 191 Kiboko ‘B’, and Plot Numbers 25, 258, 264, and 4235 all within the Kyuu Adjudication Section in Mbooni constitute matrimonial property. 5.Furthermore, she asks for a legal declaration that the respondent holds these specified properties in trust for her, and she prays for an order that the assets be shared between them in a ratio equivalent to each party's respective contribution or as the court may deem fit. 6.To safeguard her interests, she requests an injunction restraining the respondent, his agents, or servants from wasting, alienating, or encumbering the properties, 7.Finally, she asks that the respondent be condemned to pay the costs of the application. 8.In the accompanying supporting affidavit, the applicant deposes that she is a resident of Makueni County and at that time she was working as an administrator for the Kenya Agricultural and Livestock Research Organization, a position she has held since 1980. 9.She explained that she entered into a customary marriage with the respondent in 1979 and that their union was blessed with four children, one of whom is now deceased. 10.At the time of their marriage, the respondent was employed at the Worsters Club in Nairobi but subsequently left his employment to venture into agribusiness, which she initially financed and supported because he was unemployed. 11.She further stated that she directly and jointly contributed to the acquisition of all the disputed properties, noting that Plot Number 887 Kiboko was purchased between 1993 and 2009 through settlement payments. 12.She also stated that they jointly developed Plot Number 2034 by constructing the Kathongole Hill View Inn, which includes a guest house, rental rooms, and conference halls, and that they stocked it with livestock, while also building the Wamu Guest House on Plot Number 7 within Kiboko Market. 13.The applicant explicitly stated that the respondent did not own any of these properties prior to their marriage, and while some were acquired jointly, others were registered solely in his name. 14.She deposed that the respondent has denied her right of access and use of the matrimonial properties and family investments since February 2013, as well as engaging in the wanton waste of the assets. 15.She expresses an apprehension that the respondent intends to dispose of the properties without her consent, noting that he has already commenced construction works on Plot Number 887 Kiboko 'A' with an unknown person and has threatened her, which makes the court's urgent intervention necessary to prevent irreparable loss. 16.The Respondent filed a Replying Affidavit dated 23/4/2024 in which he deposed as follows;i.That was the respondent named in the Originating Summons dated 2nd December, 2014 and was therefore competent to make the affidavit in answer to the same.ii.That the applicant had been his estranged wife since 2012 when she had refused to move with him into the new matrimonial home he had built as a family house at Malili trading centre without any reasonable cause.iii.That he was advised by his lawyers on record and verily believed that the Originating Summons was hopelessly incompetent because an application for the sharing of matrimonial property between spouses could not be lodged in a competent court by way of Originating Summons.iv.That he was advised by his lawyers on record and verily believed that even if the applicant could institute the action by way of Originating Summons, such application could not be anchored on Article 45(3) of the Constitution and sections 2, 6, 7 and 12 of the Matrimonial Property Act (Act No. 49 of 2013).v.That the Honourable Court did not have the jurisdiction to hear and determine the suit by dint of Article 162(2)(b) of the Constitution of Kenya, 2010 and that he would in due course apply for the suit to be struck out with costs.vi.That all properties listed in paragraph one (1) of the Originating Summons were his personal properties which he had acquired alone through his own efforts and without any financial contribution from the applicant.vii.That there are nine specific parcels of land he owned, which included Iveti/Kiandani/3729, PLOT NO. 831, Muputi/Kiima-kimwe/2233, Kiboko Plot No. 7, Kiboko "b"/Makueni Plot No. 191, Makueni/kyuu/258, Makueni/kyuu/4235, Maputi/kiima-kimwe/2852, And Kiboko 'a' Plot No. 887.viii.That had attached ownership documents in proof thereof and had marked them as exhibits FKW1, 2a&2b, 3a&3b, 4, 5, 6, 7, 8a&8b, and 9a&9b respectively.ix.He denied owning or knowing anything about the alleged plot No. 2034.x.He asserted that all properties listed in paragraph one (1) of the Originating Summons were not and had not been matrimonial property.xi.He argued that since all the listed properties were his, he could not hold them in trust for the applicant or share them with her in any proportion.xii.That he could not be restrained by a court order from enjoying the use of his said properties in any way he deemed fit.xiii.Consequently, he prayed to the Honourable Court to dismiss the applicant's Originating Summons with costs. 17.The parties filed written submissions as follows; The Applicant, T N K, filed these submissions in the matrimonial property dispute against her estranged husband, the Respondent, F K W, in the High Court of Kenya at Machakos (Civil Case No. E007 of 2025). 18.The Applicant brought the suit via an Originating Summons under the Matrimonial Property Act of 2013 and the Constitution of Kenya, seeking declarations that a substantial number of land parcels, plots, agricultural lands, and commercial properties, specifically located in Kiboko, Machakos, Malili Ranch, and Mbooni, constitute matrimonial property held in trust for her by the Respondent. 19.She is requesting that these properties be shared based on joint contribution, that the Respondent be restrained from selling or disposing of them, and that he be ordered to pay the costs of the application. 20.The primary procedural issue stems from the Respondent's contention that the suit is incompetent because it was filed via an Originating Summons. 21.The Applicant argues that when the suit was originally initiated in 2014, the Matrimonial Property Act of 2013 provided for an application process but did not prescribe a specific form, and the Matrimonial Property Rules were not enacted until 2022. 22.To justify this procedural choice, the submissions cite the case of MMM v LOO [2016] KEHC 1702 (KLR), where the court ruled that in the absence of an explicitly outlined statutory procedure, a litigant cannot be penalized or dismissed for utilizing an Originating Summons, especially given the mandate of Article 159(2)(d) of the Constitution to administer justice without undue regard to procedural technicalities. 23.Furthermore, the Applicant notes that Rules 7(2) and 7(3) of the subsequent Matrimonial Property Rules of 2022 actually validate and mandate the use of an Originating Summons for such spousal property claims, rendering the suit competent and properly before the court. 24.Substantively, the Applicant establishes that the parties were married in 1979 under Kamba customary law and have four children. 25.She asserts that all listed assets were acquired post-1979 during the subsistence of their marriage. The matrimonial home was built in 1993 on Plot No. 887, Kiboko ‘A’, a property purchased progressively between 1992 and 2009. 26.The Applicant notes that she was a long-serving civil servant employed as an administrator by the Kenya Agricultural & Livestock Organization since 1980, earning a stable income, whereas the Respondent left his employment as a waiter in 1987. 27.She claims to have financially sustained him and heavily invested in his agribusiness and subsequent commercial ventures, supporting her claims with bank deposit slips totalling over one million shillings transferred to him for asset purchases. 28.These investments resulted in major developments, including the 26-room Kathongole Hill View Inn and the 15-room Wamu Guest House. 29.The Applicant argues that even though the properties are registered solely in the Respondent's name, Section 14 of the Matrimonial Property Act creates a rebuttable presumption of trust in her favor. 30.Relying on the case of Mugo Muiru Investments Limited v EWB & 2 Others (2017) eKLR, the Applicant asserts that a spouse's beneficial interest is an overriding, equitable, and unregistered interest that binds any subsequent title holders. 31.This is further reinforced by NM v DM [2018] eKLR, which details how Section 28 of the Land Registration Act protects spousal and customary rights as overriding interests that prevent a registered proprietor from disposing of matrimonial property without spousal consent. 32.To quantify her non-monetary contribution, the Applicant highlights her domestic work, child care, companionship, and management of the family farms and businesses. 33.She anchors this position in jurisprudence by citing Njoroge v Ngari [1985] KLR 480, which recognizes that indirect domestic contributions enable a spouse to acquire assets, and Peter Mburu Echaria v Priscilla Njeri Echaria [2007] eKLR, which affirms that non-monetary management of home and family affairs establishes a beneficial interest in matrimonial property. 34.Finally, the Applicant requests urgent injunctive relief, stating that the Respondent deserted the family in February 2013, denied her access to the properties and their commercial proceeds, and has committed wanton waste by selling a portion of Plot No. 887 without her consent. 35.Citing Tabitha Wambui v Simon Wambui [2014] eKLR, she argues that courts must intervene to preserve property when there is a clear apprehension that one spouse will alienate assets to defeat the other's claims. 36.In conclusion, because the Respondent abandoned the matrimonial home and left the entire burden of fending for the children on her, the Applicant urges the court to grant her sole ownership of the matrimonial home at Kiboko 887 to guarantee shelter for the children, distribute at least three-quarters of the remaining matrimonial property to her, issue a permanent injunction against the Respondent, and award her the full costs of the suit. 37.The Respondent, F K W opposed the Originating Summons filed by T N K and said that they were married under Kamba customary law in 1989 and, despite being estranged, remains legally married. 38.They previously cohabited in a four-bedroom house built on a portion of Plot No. 887 Kiboko 'A', where the applicant still resides. 39.The respondent submitted that the applicant's application is incurably defective and incompetent on multiple grounds. 40.First, the applicant fails to make a specific, factual averment that the listed properties are matrimonial property; instead, paragraph one of her Originating Summons merely poses a question to the court asking whether various properties, including Plot No. 887 Kiboko 'A', Machakos/Kiandani/3729, Agricultural Plot Nos. 831 & 2034, parcels within Malili Ranch Ltd (formerly Muputi/Kiima-Kimwe/2233), Plot No. 7 and another parcel within Kiboko market, Plot No. 191 Kiboko 'B', and Plot Nos. 25, 258, 264 & 4235 within Kyuu Adjudication Section, constitute matrimonial property. 41.The respondent further submits that under the Matrimonial Property Act (No. 49 of 2013), a spouse initiating such an application has a legal duty to aver as a matter of fact that the properties are matrimonial and subsequently prove that claim on a balance of probabilities, rather than launching a fishing expedition to discover the other spouse's assets or asking the court to declare unspecified holdings as matrimonial property. 42.Furthermore, the respondent challenges the applicant's other prayers regarding whether he holds the properties in trust for her, whether they can be shared equally, and requesting an injunction against alienating the assets. 43.The respondent states that a spouse cannot legally hold his own property in trust for the other spouse. 44.The respondent also submits that under Section 7 of the Matrimonial Property Act (No. 49 of 2013), matrimonial property can only be divided and distributed between spouses upon divorce or the dissolution of the marriage. 45.He said that the marriage between the parties is still actively subsisting and he contends that there is no legal room for division or distribution. 46.To support this, the submissions quote the case of MNH v FHM [2018] Kajiado High Court Civil Case No. 11 of 2018 (OS), where Mr. Justice R. Nyakundi ruled that in the absence of conclusive proof of the dissolution of a marriage, suit properties cannot be distributed. 47.The respondent also points out that the applicant has failed to meet the burden of proof required by Sections 107 and 108 of the Evidence Act (Cap 80), which dictates that whoever alleges must prove. 48.While the respondent provided a comprehensive replying affidavit with documentary exhibits (FKW1 through FKW9b) establishing that the properties are not matrimonial assets, the applicant produced no receipts or proof of joint acquisition. 49.The only documents bearing the applicant's name are bank transactions showing deposits into her own accounts, with no evidence linking those funds to the acquisition of the listed lands. 50.Under Section 6(1) of the Matrimonial Property Act (No. 49 of 2013), matrimonial property is strictly limited to the matrimonial home, household goods therein, or other movable and immovable property jointly owned and acquired during the marriage. 51.The respondent maintains that the supporting affidavit cannot conclusively prove joint ownership, citing PNK v JKM [2013] Nairobi Civil Suit No. 41 of 2013 (OS), where Mr. Justice L. Kimaru noted that disputed claims of direct or indirect contribution and the final determination of what constitutes matrimonial property can only be conclusively resolved during a full hearing of the case. 52.The finally the respondent submitted that the applicant has failed to prove her claims on a balance of probabilities and the marriage remains intact, the respondent prays that the court dismiss all of the applicant's prayers in their entirety. 53.The issues for determination in this matrimonial dispute are as follows;i.Whether the Originating Summons is a legally competent mode of initiating division of matrimonial property claims,ii.Whether the High Court is clothed with the requisite jurisdiction to order the division and distribution of matrimonial property while the marriage is still subsisting,iii.Whether the disputed parcels of land and commercial enterprises constitute matrimonial property,iv.Whether a spouse can legally hold solely registered property in trust for the other spouse during an active marriage, andv.Whether the applicant has established a proper basis for the grant of permanent injunctive relief. 54.On the first issue of procedural competence, the respondent's objection that an Originating Summons cannot be used to anchor property claims under the Matrimonial Property Act of 2013 is legally untenable. 55.When this suit was instituted in 2014, the Matrimonial Property Act of 2013 did not prescribe a mandatory framework or form for approaching the court, and the Matrimonial Property Rules were only subsequent procedural interventions enacted in 2022. 56.As established in the persuasive precedent of MMM v LOO (supra), a litigant cannot be locked out of the temple of justice or penalized for a procedural choice when the underlying statute is silent on the specific form of the pleadings. 57.This aligns with the overriding constitutional principle enshrined in Article 159(2)(d) of the Constitution of Kenya 2010, which commands courts to administer justice without undue regard to procedural technicalities. 58.Furthermore, Rules 7(2) and 7(3) of the Matrimonial Property Rules of 2022 retrospectively validate and regularize the use of an Originating Summons for spousal declarations, rendering the applicant’s mode of commencement procedurally sound and fully competent before this court. 59.Turning to the second issue regarding the jurisdiction to divide and distribute assets, the law is clear and uncompromising. 60.Section 7 of the Matrimonial Property Act of 2013 stipulates that ownership of matrimonial property vests in the spouses according to their respective contributions and shall be divided between them if they divorce or their marriage is otherwise dissolved. 61.The evidence presented by both parties indicates that while they have been estranged since 2012 or 2013, their Kamba customary marriage is actively subsisting. 62.In NM v DM (supra), the court emphasized that unless a couple is legally divorced or their union is formally dissolved by a court of competent jurisdiction, a judicial body possesses no jurisdiction to divide or distribute matrimonial property. 63.Attempting to split and share marital assets while the marriage is legally intact is equivalent to distributing the estate of a living person. 64.Consequently, this court lacks the statutory jurisdiction to grant the applicant’s prayer to share, partition, or distribute the properties in a three-quarters ratio or any other proportion at this juncture. 65.However, the inability to divide the property does not strip the applicant of her proprietary rights or leave her empty-handed. 66.The third and fourth issues address the status of the properties and the existence of a trust. 67.The applicant has demonstrated that she entered into marriage with the respondent in 1979 when he had no substantial assets, and that all the disputed properties were progressively acquired post-1979 during the subsistence of their marriage. 68.While Section 6(1) of the Matrimonial Property Act of 2013 strictly defines matrimonial property as the matrimonial home, household goods, or other property jointly acquired. Section 14 of the same Act creates a clear, rebuttable presumption of a resulting trust where property is acquired during the marriage but registered solely in the name of one spouse. 69.The applicant has produced bank deposit slips proving she directly transferred over one million shillings to finance the respondent's agribusiness and real estate investments, alongside her non-monetary contributions including domestic care, child rearing, and the physical management of the family enterprises like the Kathongole Hill View Inn and Wamu Guest House. 70.This dual contribution satisfies the judicial benchmarks established in Peter Mburu Echaria v Priscilla Njeri Echaria (supra), which firmly recognizes that non-monetary management of home and family affairs establishes a recognizable, beneficial interest in marital property. 71.The respondent's assertion that he cannot hold his own property in trust for his spouse is erroneous. 72.Under Section 28 of the Land Registration Act of 2012, spousal rights over matrimonial property and customary trusts are explicitly categorized as overriding interests that bind the registered proprietor, regardless of whether they are formally noted on the title register. 73.Therefore, while the properties, excluding Plot Number 2034, which the respondent denies knowledge of and for which ownership documentation remains unverified, are registered solely in the respondent’s name, he holds them under a statutory and constructive trust for the joint benefit of himself and the applicant. 74.On the final issue of injunctive relief, the applicant has raised a legitimate and reasonable apprehension that the respondent has locked her out of the family investments since February 2013, engaged in the waste of assets, and entered into construction arrangements on Plot Number 887 Kiboko 'A' with third parties without her consent. 75.Following the precedent in Tabitha Wambui v Simon Wambui (supra), courts must step in to preserve properties when one spouse threatens to alienate or waste assets to defeat the equitable claims of the other. 76.The marriage is still subsisting and therefore the assets must be protected from dissipation until such a time as a formal dissolution may occur. This court therefore declines to order the sharing, division, or distribution of the properties because the marriage remains legally intact. 77.Accordingly, the final decision of this court is to allow the Originating Summons as follows;i.That a formal declaration be and is hereby issued that the specified properties acquired by the respondent registered in his name post-1979, including Plot Number 887 Kiboko 'A' which houses the matrimonial home where the applicant resides, constitute matrimonial property.ii.That this court further declares that the respondent holds these solely registered properties in trust for the joint benefit of himself and the applicant.iii.To safeguard these assets, a permanent injunction be and is hereby issued restraining the respondent, his agents, or servants from selling, transferring, charging, wasting, or otherwise alienating any of the declared matrimonial properties without the express verbal and written consent of the applicant. 78.For avoidance of doubt, the properties which were identified as being acquired post-1979 and are declared as matrimonial property held in trust for the applicants are land parcel numbers Plot Number 887 Kiboko, Machakos/Kiandani/3729, Agricultural Plot Numbers 831 and 2034, five other parcels within Malili Ranch, land parcel Muputi/Kiima-Kimwe/2233, Plot Number 7 and one more parcel within Kiboko Market, Plot Number 191 Kiboko ‘B’, and Plot Numbers 25, 258, 264, and 4235 all within the Kyuu Adjudication Section in Mbooni constitute matrimonial property. 79.This is a family dispute where the applicant has successfully preserved her beneficial interest and for that reason, each party shall bear their own costs of this application. 80.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNE 2026ASENATH ONGERIJUDGEIn the presence ofNo appearance for the PlaintiffMr Ombete for the DefendantChrispine - Court Assistant