https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6899

VSJ v KAS (Family Originating Summons E034 of 2024) [2026] KEHC 6899 (KLR) (Family) (21 May 2026) (Judgment) Neutral citation: [2026] KEHC 6899 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Family Originating Summons E034 of 2024 PM Nyaundi, J May 21, 2026 Between VSJ Petitioner and KAS Respondent Judgment Background 1.The Originating Summons dated 26th June 2024 is presented under Sections 2, 4, 6, 7, 9, 10, 11, 2,4,6,7,9,10,11,12(1)(3)(5), 14(a)(b) & 17 of the Matrimonial Property Act; Articles 40, 45(3), 53 & 159 of the Constitution of Kenya; Order 37, Rules 1, 7, 8, 1,7,8,14 & Rule 4; Order 40, Rules 1(a)(b), 2, 4(1),(2); Order 51, Rule 1 of the Civil Procedure Rules; Sections 1A, 1B & 3A; Sections 63(c) & (e) of the Civil Procedure Act; and Sections 24, 28 & 93 of the Land Registration Act. 2.The Applicant, Valentine Shilaku Juma, seeks a declaration that the following properties be declared matrimonial properties and that her share in those properties be determined according to her contribution. She prays that, once the respective shares are determined, her share be transferred into her name.Propertiesa.Ruai Plot Number v. 3XXX- Area Stage 26b.Ruai Plot number P9XXXc.Title Number Bungoma/ Kamakoiwa / 4XXXd.Household Items and furnituree.Title Number Bungoma/ Kamakoiwa/4XXX- 4 plotsf.Parcel Number 0.1 of Bungoma/4XXX- 2plotsg.Parcel number 0.1 Bungoma / Kamakoiwa/ 4XXX- 2 plotsh.Motor vehicle registration number KBM 6XXX. 3.The Summons is based on the grounds set out in the application and is supported by the applicant's affidavit, sworn on 26th June 2024. The Summons was opposed, and the respondent, KAS, has sworn a replying affidavit on 8th August 2024. 4.The matter proceeded by viva voce evidence, and each party gave evidence as the sole witness in their respective cases. 5.PWI- VAJ is the Petitioner. She and the respondent cohabited as man and wife from 2004, solemnised their customary law marriage, and registered it on 15th May 2015. Owing to irreconcilable differences, the marriage was dissolved by the issuance of a decree absolute on 11th March 2021 in MCCDC No. 607 of 2019. 6.The couple had two children. The elder child was born to the Petitioner in a previous relationship; the respondent assumed parental responsibility for him. 7.The following assets were acquired during the pendency of the marriage-a.Ruai Plot Number v. 3XXX- Area Stage 26b.Ruai Plot number P9XXXc.Title Number Bungoma/ Kamakoiwa / 4XXXd.Household Items and furnituree.Title Number Bungoma/ Kamakoiwa/4XXX- 4 plotsf.Parcel Number 0.1 of Bungoma/Kamakoiwa/4XXX- 2plotsg.Parcel number 0.1 Bungoma / Kamakoiwa/ 4XXX- 2 plotsh.Motor vehicle registration number KBM 6XXX 8.Throughout the marriage, she has been employed. She utilised her income and the loans she was able to access to contribute to the acquisition of the assets listed above. 9.With regard to Ruai Plot Number P9XXX, the certificate of ownership issued by Embakasi Ranching Company Limited is in their joint names. She produced documents showing that she contributed towards the payment of the architect's fees, the water connection, the purchase price of the plot, and the construction costs. 10.Plot No. VXXX. The certificate of ownership issued by Embakasi Ranching Company Limited is in their joint names. She has submitted documents showing that she contributed to the purchase of the plot. 11.Title Bungoma Kamakoiwa/4XXX. The title deed is in their joint names. She contributed to its purchase. They have constructed a matrimonial home on this property. 12.Bungoma/Kamakoiwa/4XXX and Bungoma/Kamakoiwa/4XXX. The agreement identifies her as ‘wife’. Her father brokered these sales. 13.Motor vehicle KBM 6XXX was purchased with her contribution. It is registered in the respondent's name. The documentation, including the sale agreement, lists their joint names as buyers. 14.She also seeks the household furniture. Construction at Ruai continued whilst the divorce was ongoing. At the dissolution of the marriage, the respondent retained possession of the properties. She does not have access to them. Before the separation, the respondent gave her Kshs 1.6m for construction. As he was not supporting the children, she used some of it to support them. 15.On cross-examination, she stated that her total financial contribution towards the Ruai Plot No.9XXX was Kshs 3.5 million, inclusive of the Kshs 2.4 million purchase price and other costs related to the purchase. The respondent executed the sale agreement. At the time they were estranged, the house was not completed. The respondent continued construction after she left. She seeks a refund of her contribution towards construction. 16.She stated that the discrepancies in her documents were inconsequential and reiterated that she had contributed to the acquisition and development of the matrimonial property. She had taken with her the household effects she had bought at the Nairobi Home, but had not been able to access those at the rural home. She did not have receipts to evidence the purchase of the household items. 17.She was informed by a neighbour that the respondent intends to sell the family home at Ruai. She did not contribute to the purchase of Bungoma/4XXX; it was a gift from her father. The respondent paid for Bungoma 4XXX/2 18.On reexamination, she said her claim is for the market value of the assets. She has the motor vehicle. 19.Bungoma 4XXX is in their joint names, so it should be distributed equally. 20.DWI- KAS- He is the Respondent. He confirms the details relating to the marriage and subsequent divorce. He states that the applicant left the matrimonial home of her own volition in June 2017 and denies having evicted her. He denies any intention to dispose of the Ruai Plot P9XXX and contends that the applicant has refused to discuss with him how to deal with the property, ignoring his overtures. He confirms that it is the matrimonial home. 21.He concedes that the applicant contributed to the purchase of Ruai Plot No. V3XXX but denies that she contributed solely for construction materials. He contends that he contributed to the development of the matrimonial home at Ruai and to parcels of land. He has supported the children. The property is matrimonial property and does not belong to them as individuals. 22.On cross-examination, he confirmed that he had changed the locks on the house in Ruai. He conceded that she contributed to its purchase and to part of the construction. He finalised the construction of the home in September 2022. He testified that he had contributed to the purchase of the parcels of land. He was not keen on the valuation of the properties. Analysis And Determination 23.Having considered the pleadings and the evidence adduced, I surmise the following to be the issues for determinationa.Whether the subject parcels of land comprise matrimonial propertyb.If the answer to (a) above is in the affirmative, what is the respective share of the parties based on their individual contributions?c.Arising from the (a) and (b) above, what are the consequential orders? 24.Section 6 of the Matrimonial Property Act defines matrimonial property thus-Meaning of matrimonial property(1)For the purposes of this Act, matrimonial property means—(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. 25.There is consensus that the properties were acquired during the marriage, except with regard to Parcel number 0.1 Bungoma / Kamakoiwa/ 4XXX- 2 plots, for which no document has been presented as proof of ownership. Accordingly, I find that the following assets are matrimonial property.a.Ruai Plot Number v. 3XXX- Area Stage 26b.Ruai Plot number P9XXXc.Title Number Bungoma/ Kamakoiwa / 4XXXd.Household Items and furnituree.Title Number Bungoma/ Kamakoiwa/4XXX- 4 plotsf.Parcel Number 0.1 of Bungoma/Kamakoiwa/4XXX- 2plotsg.Motor vehicle registration number KBM 6XXX 26.The next issue for determination, therefore, is the respective shares of the parties. Section 7 of the Matrimonial Property Act provides for the division of the matrimonial property between the parties upon dissolution of the marriage, based on each spouse’s contribution to its acquisition. This was emphasised by the Supreme Court in JOO v MBO & 2 others [2023] KESC 4 (KLR). 27.Section 7 of the Act, read alongside section 14, establishes legal presumptions for property acquired during marriage. These are, first, that property registered in one spouse’s name is held in trust for both, and, second, that jointly registered property is presumed to be held in equal shares. These presumptions are rebuttable by evidence of contribution, including non-monetary, domestic, and care work. 28.It is therefore upon the party that wishes to debunk the presumption to adduce evidence to rebut it. The trajectory of the judicial precedents is the acknowledgement that during the pendency of the marriage, spouses will rarely keep detailed records of their financial contributions for the obvious reason that marriages are built on trust and under normal circumstances, no one anticipates an ending that is characterised as a contested dispute over distribution of the assets acquired in the course of the union. 29.With this in mind, the Court then adopts an approach aimed at achieving fairness that considers both the financial and non- financial contribution of each party. The Supreme Court in JOO v MBO & 2 others (Supra) cited with approval the approach in the English Case of White v White [2001] 1 AC 596, where Lord Nicholls of Birkenhead held that the court should always ensure a fair outcome in considering the contribution of spouses by stating-But there is one principle of universal application which can be stated with confidence. In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles. Typically, a husband and wife share the activities of earning money, running their home and caring for their children. Traditionally, the husband earned the money, and the wife looked after the home and the children. This traditional division of labour is no longer the order of the day. Frequently both parents work. Sometimes it is the wife who is the money-earner, and the husband runs the home and cares for the children during the day. But whatever the division of labour chosen by the husband and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering paragraph (f), relating to the parties' contributionThis is implicit in the very language of paragraph (f):“ the contributions which each … has made or is likely … to make to the welfare of the family, including any contribution by looking after the home or caring for the family.’If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the home-maker and the child-carer.” 30.It is clear that before marital issues arose, both parties were focused on building a shared future, as shown by their asset acquisition and the meticulous records of 'KenVal Projects' maintained by the Petitioner's father. 31.In the circumstances, I am of the considered view that the fairness in these circumstances will be achieved if the assets are divided in equal shares between the Petitioner and the Respondent. 32.These then are the final orders of the Court, pursuant to rule 30 of the Matrimonial Property Rules-a.The properties enumerated in Paragraph 25 above are deemed to be matrimonial property held jointly by the parties in equal shares.b.The Counsel for the parties will jointly nominate a valuer to value the following assets within 14 daysa.Ruai Plot Number v. 3XXX- Area Stage 26b.Ruai Plot number P9XXXc.Title Number Bungoma/ Kamakoiwa / 4XXXd.Title Number Bungoma/ Kamakoiwa/4XXX- 4 plotse.Parcel Number 0.1 of Bungoma/Kamakoiwa/4XXX- 2plotsf.In the event the Counsel are unable to agree the Counsel for the Applicant will nominate a valuer.g.The Valuer nominated under (b) or (c) above will furnish a report within 21 days of appointment.h.The Respondent will have first right of purchase and will make a proposal on payment to the applicant of her 50 per cent within 120 days of the offer being made. In the event he is unable to make the payment or fails to exercise his right of purchase, the properties will be sold, and net proceeds shared equally between the parties.i.With regard to Motor vehicle registration number KBM 6XXX, the same shall be valued by a valuer nominated jointly by the counsel of the parties within 14 days, in default the respondent’s counsel will nominate the valuer.j.On the furniture the Applicant states they are valued at 318600/- and the respondent states that they are valued at 150,000/-. For purposes of division and factoring in depreciation, the properties will be valued at Kshs 250,000. If the respondent elects to retain the furniture he will pay to the applicant the sum of Kshs 125000 within 30 days. In the event that he elects not to pay her, he will allow her access to the house to take half of the assets.k.To facilitate the valuation, sale and transfer of the assets herein, the parties are required to execute the documents within 14 days of delivery to them, failing which the Deputy Registrar, Family Division, will execute the same on behalf of the defaulting party. 33.This being a family matter, there shall be no order as to costs. 34.Parties are at liberty to appeal; the party exercising their right of appeal is to do so within 30 days. SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF MAY 2026.P.M NYAUNDIJUDGEIn the Presence ofFardosa Court AssistantNo appearance by parties