https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9854

TWN v JNN (Matrimonial Case E004 of 2024) [2026] KEHC 9854 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9854 (KLR) Republic of Kenya In the High Court at Thika Matrimonial Case E004 of 2024 FN Muchemi, J July 2, 2026 Between TWN Petitioner and JNN Respondent Judgment 1.The petitioner instituted this vide Originating Summons dated 16th November 2023 seeking determination that:-a.A declaration do issue that property known as (Kiambu/Gatuanyaga xxxx with all the buildings and developments thereon acquired solely through the petitioner’s efforts during their marriage and that all registered in the name of and/or in possession of the respondent, are owned solely by the petitioner.b.A declaration do issue that the petitioner holds the said property in trust for herself and the children.c.The said property be settled for the benefit of the petitioner in such manner and proportions as this honourable court deems fit and just.d.The respondent himself, his agents and servants be restrained permanently from alienating, encumbering or in any manner disposing off the said property.e.The respondent be condemned to pay the costs of this suit. 2.In opposition to the originating summons, the defendant filed a Replying Affidavit dated 20th May 2024 and Further Affidavit dated 17th July 2024. 3.The matter proceeded by viva voce evidence. The Petitioner’s Case 4.PW1, the plaintiff adopted her witness statements dated 19th June 2024 and 30th October 2024 and testified that she and the defendant got married on 3rd November 2001. She further testified that in the year 2000 she was working as a secretary at [Particulars Withheld] Gatuma-ini parish and in 2003 where she applied for a loan from the church’s sacco to purchase a plot in Gatuanyaga in Thika. The sacco advanced a loan of Kshs. 135,154/- to her. PW1 further testified that at the time, the respondent was unemployed. 5.The plaintiff testified that she and the respondent travelled to Mpeketoni to meet Mr. M G who was selling his land LR No. Kiambu Gatuanyaga/xxxx to them. Upon reaching Mpeketoni, they met Benedetta Wambui who took them to Mr. M and they agreed that the purchase price would be transferred to vendor’s bank account the following day upon which he would transfer the land to them. The land parcel was then registered in the respondent’s name despite not contributing to the purchase price. The plaintiff testified that she paid all the transport expenses and she repaid the loan solely for three years following the transaction. 6.It was the plaintiff’s further evidence testified that in the year 2006, she applied to Co-operative Bank of Kenya for another loan of Kshs. 180,000/- which she used to build their matrimonial home to completion. Upon completion of the matrimonial home, she repaid the loan solely and the respondent became gainfully employed in the year 2016 after previously working as a casual labourer with no steady income. The plaintiff further testified that the couple stayed together in the matrimonial home from 2006 to 2019 when the respondent got a job in Nakuru as a foreman in the church. 7.The plaintiff further testified that in the year 2018, the respondent filed a civil case asking the court to discharge the title of the suit land which was charged for a loan she took for a sum of Kshs. 500,000/- to start a business and maintain herself as the respondent was living with another woman in Nakuru. PW1 further stated that the respondent deserted her and the children and got another woman and her two children who currently reside at the matrimonial home. PW1 thus prays for the suit property solely as she bought it and constructed the matrimonial home using her funds. 8.On cross examination, the petitioner testified that the suit land was registered in the name of the respondent because she was acting as an African woman who respected and trusted her husband. The plaintiff further testified that she borrowed a loan using the matrimonial home as collateral but she did not inform the respondent and she further signed the charge. The plaintiff further stated that they have three children with the respondent with two of them in school and one employed. She said that the respondent contributed to the bringing up of the children after he got a job in Nakuru. Prior to acquiring gainful employment, the plaintiff was solely responsible for providing for the family. The plaintiff supported the children financially and materially before the respondent got a job in the year 2019. 9.PW2, the brother of the petitioner adopted his witness statement dated 13th June. He testified that the petitioner was working as a secretary at the Presbyterian Church of Eastern Africa Gatuma-ini Parish. In the year 2003, the petitioner acquired a loan facility from the church sacco for a sum of Kshs. 134,154/- to purchase a plot of land in Gatuanyaga. He further testified that he is aware that the petitioner and respondent went to Mpeketoni together, where the owner of the suit land lived, negotiated and paid the purchase price of the property in full. 10.On cross examination, the witness testified that he never saw the sale agreement in respect of the suit property but he was briefed of what was happening by the petitioner. 11.PW3 Esther Njambi Kabare Kariuki adopted her witness statement dated 19th June 2024 and testified that she works as an Administrative Assistant in [Particulars Withheld] church and was a colleague of the petitioner while working at Gatumaini [Particulars Withheld] Church in Thika. It was her evidence that she guaranteed the petitioner for a loan of Kshs. 134,154/- from the church Sacco, in 2003. The loan was for purchase of a plot in Gatuanyaga. The witness said she went to view the plot with the petitioner before it was purchased. The witness further testified that at the time of the purchase of the suit land the respondent was not employed and was not earning any income. 12.On cross examination, the witness said that she did not have her letter of employment before the court showing that she was an employee of the [Particulars Withheld] Church and neither did she witness the plot purchase transaction at the advocates’ office. The witness added that she visited the petitioner’s land after the construction of the house in the year 2007. 13.PW4, BWN adopted her witness statement dated 19th June 2024 and testified that she is the daughter in law of Mr. M, the vendor who sold the suit land to the petitioner. She further testified that the petitioner contacted her pursuant to an advertisement for the sale of the said piece of land LR. No. Kiambu Gatuanyaga/xxxx. PW4 said that in the year 2003, the petitioner informed her that she planned to take a loan to buy the plot. The petitioner and the respondent then travelled to Lamu Mpeketoni where she took them to the owner of the plot. She said that she and she witnessed the purchase of the land and the payment of the full purchase price by the petitioner. 14.On cross examination, the witness said that she was the trustee of the owner of the suit land at the time the land was being bought as he was sick then. He used to send her for negotiations for the sale of the property. She further stated that the petitioner deposited the purchase price in her father’s account in KCB Mpeketoni. PW4 said that after the purchase, the suit land was registered in the name of the respondent upon agreement between them. The Respondent’s Case 15.The respondent DW1 relied on his Replying Affidavit dated 20th May 2024 and Further Affidavit dated 17th July 2024 and testified that although LR. No. Kiambu/Gatuanyaga/xxxx was acquired during the subsistence of their marriage. He said he solely bought the land and constructed the matrimonial home. He further testified that he is the registered owner of the suit land as shown in the original title deed. The respondent testified that after constructing the house, the petitioner took out a loan without his consent and charged the suit land. He further testified that he commenced Thika Chief Magistrate Civil Case No. 120 of 2018 which was heard and determined in his favour and the defendants were ordered to release and discharge the title. The matter proceeded to appeal vide Thika HCCA No. 14 of 2024 which was determined in his favour as the court found that the petitioner took a loan facility of Kshs. 500,000/- without his consent and with forged documents. The petitioner further went ahead and disposed the suit parcel to one Francis Njaga Mwaura at a consideration of Kshs. 2,800,000/- whereby Kshs. 1,426,000/- was deposited to Spring Board Capital Account to offset the loan while the petitioner was charged with the offence of obtaining money by false pretences. 16.The respondent testified that he paid for the suit land in instalments but he cannot recall the name of the owner of the land. He further testified that he deposited the purchase price in the owner’s KCB account. 17.On cross examination, the witness testified that he used to be a hotel manager in Nairobi until 2003 when he stopped working. He further testified that in 2004, he started selling shoes. DW1 testified that the suit land was sold to him by M G and he deposited the sale purchase price of Kshs. 120,000/- in his bank account. The witness further added that the money was paid by both the petitioner and himself. He states that the petitioner borrowed as loan as her contribution to the purchase. He added that the petitioner withdrew the money from her bank account while he paid cash and they both paid Kshs. 100,000/-. The witness testified that his salary as a hotel manager was about Kshs. 15,000/- which was paid in cash to him. 18.The witness testified that PW4 took them from Mombasa to the owner of the property in Mpeketoni but the suit land was later transferred to him and eventually registered in his name. He further said that the petitioner has the sale agreement for the suit land and that he paid Kshs. 100,000/- as the purchase price and continued paying in instalments until the year 2006 when he completed paying the purchase price. DW1 further testified that from the year 2004 to 2007 he used to sell books as a business and he was paid in cash by his customers. During that time, he began building the matrimonial home in December 2006. He further stated that he used to pay the masons and carpenters during the construction of their matrimonial home but the petitioner kept the receipts of payments. He added that he used to go to the site everyday in the evenings. The respondent said he did not call any of the construction workers as witnesses. 19.The witness testified that he was registered as the owner of the suit land with the petitioner’s consent. He further testified that he currently lives on the suit land while the petitioner stays with the children in another place. 20.Parties agreed to dispose of the suit by way of written submissions. The Petitioner’s Submissions 21.The petitioner relies on Section 107 of the Evidence Act and submits that the respondent has not provided any evidence or called a witness to confirm that he purchased or developed the property. The petitioner submits that she has provided evidential documents for a loan she took in 2003 which coincides with the year of purchase as confirmed by both parties. The petitioner said she provided evidence of the development loan which she took in the year 2006 which coincides with the construction of the home. Additionally she called witnesses who confirm that she purchased the suit land, thus proving her case. 22.The petitioner argues that the respondent has equally not pleaded or proved non monetary contribution to the development of the property. To support her case, the petitioner relies on the case of J.O.O vs M.B.O & 2 Others (Petition 11 of 2020) [2023] eKLR and submits that equality under Article 45(3) means that courts have a duty to ensure that at the dissolution of a marriage, each party to a marriage gets a fair share of the matrimonial property based on their contributions. The Respondent’s Submissions 23.The respondent relies on the case of J.M.U vs J.B.M (Matrimonial Cause E003 of 2022) [2025] KEHC 10419 (KLR) (18 July 2025) (Judgment) and submits that although the petitioner alleged that she took out a loan for the sole purpose of the purchase of the house, she never produced bank statements to show the purpose the money was utilised. The respondent said the petitioner did not produce any receipts from any hardware to show that she bought construction materials. The respondent argues that the title shows that he is the registered owner of the suit land and if the petitioner had purchased the said land, the title deed would have been in her name. 24.The respondent further submits that the petitioner’s witnesses never clearly confirmed if the loan was advanced to her was used to build the matrimonial home. It was further argued that the petitioner could not recall the amount of funds used to construct the house nor did she bring any mason or anyone with knowledge in construction of houses to confirm that she is the one who solely built the house. It was further submitted that PW4 claimed that she was a trustee on behalf of the original owner but she never knew how the purchase price was paid. The witness was never a witness to the sale agreement and did not know when the certificate of title was collected. Further that she lied to the court that she was present when the certificate of title was being issued to the petitioner. 25.The respondent argued that he was the one who bought the suit property in cash and that all the funds were directly deposited to the owner of the suit property. He further submitted that, he oversaw the construction of the house where he lived with the petitioner and their three children. The respondent further citesSection 107 of the Evidence Act and submits that the petitioner has not approached the court with clean hands in light of the judgment in Thika Chief Magistrate Civil Case 120 of 2018 and appeal by the instant court being HCCA No. E014 of 2024. The respondent said that during the hearing, the petitioner confirmed that she was charged with a criminal case for obtaining money by false pretence and confirmed that she was aware of the judgment in the above cases whereby she stole the title deed, forged the signature of the respondent in a bid to take out a loan of Kshs. 500,000/-in which she took and put the suit land as collateral. The petitioner later failed to pay and the loan which led to the respondent to sell the property to one Francis Njaga Mwaura. Issues for determination 26.The main issues for determination are as follows: -a.Whether the property LR. No. Kiambu/Gatuanyaga/xxxx constitute matrimonial property.b.Whether the plaintiff solely contributed towards the acquisition and development of the said propertyc.Whether the defendant is entitled to a share of the said property and in what proportion. The Law Whether the property LR. No. Kiambu/Gatuanyaga/xxxx constitute matrimonial property 27.Section 6 of the Matrimonial Property Act 2013, defines matrimonial property to include the matrimonial home or homes,any household goods in the home or homes or any other property jointly owned and acquired during the subsistence of the marriage. 28.Basically, 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. 29.In the instant case, the marriage between the parties took place on 3rd November 2001 solemnized at [Particulars Withheld] Makongeni Church in Thika as shown in the certificate of marriage serial number 439172. The parties lived together as husband and wife until 2016 and dissolved the marriage vide Thika CM Divorce Cause No. 50 of 2018 following which a decree absolute was issued on 5th December 2022. 30.From the evidence of both parties, the property LR. No. Kiambu/Gatuanyaga/xxxx was purchased and developed during the subsistence of the marriage. None of the parties disputed these facts. Pursuant to Section 9 of the Matrimonial Property Act, the said property constitutes matrimonial property. The Law 31.The Matrimonial property Act under Section 7 provides:-Subject to Section 6(3), ownership of 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. 32.The law provides that in the event of divorce, the matrimonial property is divided between the spouses according to the contribution of each spouse. 33.Section 2 of the Act defines “contribution” as monetary and non-monetary and it includes the following: -a.Domestic work and management of the matrimonial homeb.Child carec.Companionshipd.Management of family business or property ande.Farm work. 34.The Court of Appeal enunciated this principle in the case of Civil Appeal No. 142 of 2018 in C.W.M. vs J.P.M [2017] eKLR:-“….parties are of equal worth and human dignity, whatever their station in life. To the issue before us, it is obvious the appellant having been married for 18 years made some contribution to the family of the respondent at the time of such overture. In our view,that contribution, be it domestic work and management of the matrimonial home, childcare or companionship falls within the definition of contribution under the Act.” 35.The Supreme Court in the case of JOO vs MBO & 2 Others (Petition 11 of 2020) [2023] KESC 4(KLR) (27 January 2023) (Judgment) enunciated the principle of equality and equity during matrimonial property distribution as follows:-Article 45(3) of the Constitution was intended to promote fairness in matrimonial property distribution at the point of dissolution. Equality in that context meant equitable entitlement based on demonstrated contribution, not automatic entitlement to half of the property. Marriage alone did not confer co-ownership or vest proprietary rights.The guiding principle in matrimonial property division was contribution. A party must prove contribution monetary and non monetary to be entitled to a share. The respondent demonstrated direct financial contribution during the marriage, thus entitling her to a fair share. Courts must assess contributions on a case by case basis.Article 45(3) of the Constitution underscored equality as a composite of fairness and equity. While both spouses were entitled to equal rights at dissolution, the nature and extent of contributions varied. One party may contribute substantially more, especially financially than the other.Equity requires recognition of indirect contributions. A spouse may not have contributed financially, yet through caregiving or domestic responsibilities, created the conditions for the acquisition of matrimonial property. Such contributions, through less tangible were nonetheless significant.Equity, as applied in matrimonial property matters, emphasized fairness over quantitative measures. A party’s direct or indirect actions may amount to a substantial contribution. These may include partial payment of the purchase price; regular payments towards property acquisition; significant financial support for family expenses, enabling mortgage payments; management of the household to ease the financial burden on the earning spouse; and childcare and domestic responsibilities that support the earning spouse. 36.Section 9 and 14 of the Matrimonial Property Act and Article 45 of the Constitution are instructive herein. 37.Section 9 of the Matrimonial Property Act provides:-Where one spouse acquires property before or during the marriage and the property acquired during the marriage does not become matrimonial property, but the spouse makes a contribution towards the improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made. 38.There is a presumption of law, Section 14 of the Matrimonial Property Act where matrimonial property is acquired during marriage: -a.In the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse; andb.In the names of the spouses jointly, there shall be a rebuttable presumption that their beneficial interest in the matrimonial property are equal. 39.The Constitution of Kenya 2010 under Article 45(3) states that:-"Parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of marriage." 40.This principle is echoed by Section 3(2) of the Marriage Act and further recognized by the Court of Appeal in the case of Agnes Nanjala William vs Jacob Petrus Vander Goes No. 127 of 2011 (UR) where the Court of Appeal observed that Article 45(3) of the Constitution gives parties to a marriage equal rights before, during and after the marriage ends. Whether the Petitioner is entitled to the whole share 41.The petitioner filed her letter of appointment by Presbyterian Church of East Africa ([Particulars Withheld]) dated 9th September 2000 where she was a permanent employee. She married the respondent on 3rdNovember 2001. The petitioner has annexed to her affidavit loan application forms duly approved and evidence of repayment of the said loans. The first loan of Ksh.135,154/= borrowed on 6th May 2003, was to purchase the plot L.R. Kiambu/Gatuanyaga/xxxx bought for a consideration of Ksh.120,000. The second loan of Kshs.180,000/= borrowed on 23rd November, 2006 was used for construction of the matrimonial home on the land at Gatuanyaga.The parties stayed in the home together with their children from 2006 – 2019. The petitioner said that the respondent was not employed at the time they purchased the land and constructed the matrimonial home. He relied on casual jobs and small businesses to earn his living. 42.It was in the year 2019 that the respondent got a job as a foreman in Nakuru with a church led by one Apostle Kimani. This was the same year the respondent started cohabiting with another woman in Nakuru thus abandoning his family. The marriage of the parties was dissolved in Thika Divorce Cause No.50 of 2018 whereas a decree absolute was issued. The respondent stays in the matrimonial home with his other woman whereas the petitioner and her children put up with a friend. 43.The respondent on the other hand said he bought the plot where the matrimonial home sits in instalments till he completed payment of the purchase price. He says he raised the funds from his small jobs. At one time he was working for Oxford Company selling for them books. The respondent said he was paid his earnings in cash and as such he did not produce documents of his earnings. As for construction of the matrimonial home, the respondent said the construction was funded by the petitioner and himself though he did not state the amount he contributed. The respondent said he paid the owner of the plot through transfer of funds to his KCB account. He did not provide particulars of the said bank account that were used for the transactions. 44.The court perused the documents of the petitioner which demonstrate that she borrowed loans from her Sacco to purchase and to construct the matrimonial home. The loan application forms show the exact amount borrowed, the date of loan approval and also evidence of payment from correspondence to the Sacco. The dates the loans were borrowed matched the year the plot was being constructed as per the evidence of the parties. The year the plot was bought in 2003 was the same year the petitioner borrowed her first loan of Ksh.135,134 from [Particulars Withheld] Sacco. The petitioner called PW3, a workmate was called as a witness and she confirmed that she guaranteed the petitioner for the loans she borrowed. PW3 said she had also accompanied the petitioner to view the plot as well as visiting the project during construction. The respondent admitted the relationship of the petitioner with PW3 during the relevant period. The petitioner called PW4 who took her to Mpeketoni Lamu to meet the vendor of the plot. This witness said she was aware that the petitioner agreed to have her husband registered as the proprietor though she was the one who purchased the plot. This witness also confirmed that the plot was fully paid for by the petitioner. PW1, the brother of the petitioner testified that his sister kept him briefed on the purchase of the plot and the construction of the matrimonial home. 45.As for the respondent, he did not produce any documentary evidence on his earnings, if any during the period of purchase or during construction. He was also not consistent on how or where he obtained funds to pay the purchase price as he claimed he bought the plot. As for the construction the respondent did not show that he had any source of income or how much he contributed, despite claiming he worked as a hotel manager and sold books for Oxford Ltd. The court did not believe the respondent that he was under any gainful employment before the year 2019 when he was employed by a church as a foreman. This was many years after the construction of the matrimonial home. 46.The petitioner relied on the case of J O O Vs M B O and 2 OTHERS Supreme Court of Kenya Petition No.11 of 2020 (2023) where it was held:-“What one deserves must be arrived at by considering her/his respective contribution, whether it be monetary or non-monetary. The bigger the contribution, the bigger the entitlement”45(3)Article of the Constitution was interpreted to mean that there is no equality in division of property but that each party must establish their contribution. Whether the Respondent is entitled to any share 47.It is important to note that the respondent raised the issue of the petitioner borrowing a loan without his consent on changing the title which was followed by a case filed by himself against the petitioner Thika CM Suit No.120 of 2018. The case ended in respondent’s favour in that the petitioner had borrowed a loan using the property herein L.R Kiambu/Gatuanyaga/xxxx. The respondent said he is the one who cleared the balance of the loan owed to the petitioner with the lender known as Spring Board Capital Ltd who was the 2nd defendant in the case. An appeal was filed by the petitioner Thika HCCA No. 14 of 2024. 48.In that case, the petitioner was found to have illegally obtained a loan using the title of the property herein as security for a loan. I wish to distinguish that case from this matrimonial case. The former case was governed by Civil Law on property while this suit is governed by the Matrimonial Property Act, 2013 since it is s matrimonial suit. If the respondent incurred any loss or expense in that case, he ought to have followed up for costs which were given by the court both in the lower court and on appeal. The said case cannot be herd to defeat the interests of any party in this matrimonial cause. I am of the considered view that any loss or expense incurred in the said case or in the appeal cannot be addressed in this cause. 49.On perusal of the proceedings, it is noted that the respondent did not plead non-monetary contribution and neither did he adduce evidence in that regard. Section 107 of the Evidence act provides that he who claims must prove. Having analysed the evidence of the parties on monetary contribution, I am of the considered view that the respondent is not entitled to any share in L.R. Kiambu/Gatuanyaga/xxxx. Conclusion 50.Consequently, I find that the petitioner has established that she solely purchased and developed the property registered in the respondent’s name L.R. Kiambu/Gatuanyaga/xxxx. I therefore enter judgment in the favour of the petitioner against the respondent as follows: -a.That a declaration do issue that L.R. Kiambu/Gatuanyaga/xxxx with all developments thereon belongs to the petitioner.b.That the respondent shall execute transfer of the said property and give vacant possession to the petitioner within sixty days (60) days.c.That in default of transfer and giving vacant possession within the said period, the Deputy Registrar of this court shall execute the transfer documents on behalf of the respondent and that an eviction order shall issue forthwith against the respondent, his agent, servants upon expiry of sixty (60) days.d.That this being a family matter, each party shall meet their own costs. 51.It is hereby so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 2ND DAY OF JULY 2026.F. MUECHEMIJUDGE