https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10701

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **FAMILY DIVISION** **MILIMANI LAW COURTS** **MATRIMONIAL PROPERTY CASE NO. E018 OF 2022 (O.S)** **IN THE MATTER OF SECTION 17 OF THE MATRIMONIAL PROPERTY ACT NO. 49 OF 2013** **JESSE KARIUKI WANJARA ……………..** **PLAINTIFF/APPLICANT** **VERSUS** **ROSE WANGECHI METUO ………… DEFENDANT/RESPONDENT** **AND** **LEONARD NJENGA KARURUE …………….… INTERESTED PARTY** **JUDGEMENT** 1. In his Originating Summons dated **23rd March 2022**, the Plaintiff/Applicant prayed for the following orders: 1. **That this Honourable Court be pleased to issue a declaration that the Applicant and the Respondent have acquired interests in Land Reference Number Dagoretti/Waithaka2182 (hereinafter referred to as "the suit property") in the ratio of 80:20, respectively.** 2. **That the Applicant be at liberty to buy the 20% acquired interest of the Respondent at the prevailing proportionate market value;** 3. **That the subdivision to separate the parties’ interests and/buying of the share of the Respondent by the Applicant be done within six (6) months from the date of judgment herein at the joint expense of the Applicant and the Respondent.** 4. **That in default, the Registrar of the High Court of Kenya be authorized to sign any transfer documents and any other related documents thereof in place of the Respondent or any other person holding title on behalf of the parties herein to effect all the orders of the Court herein.** 5. **That the Applicant and the Respondent do share proportionately the expenses payable on the separation of the parties’ interests in the suit property as will finally be ordered in the judgment herein.** 6. **That this Honourable Court be pleased to grant such further or other relief as maybe just in the circumstances.** 7. **Costs of this suit be to the Applicant.** 2. The Defendant filed her response by way of a Replying Affidavit dated **11th May 2022,** in which she admits some of the allegations made by the Plaintiff while denying others. In particular, the Defendant admits that she was married to the Plaintiff and states that they solemnized their marriage on 13th December 2006 before the Registrar of Marriages in Nairobi. She denies having any knowledge of, or participating in, the divorce proceedings. However, she acknowledges that she is aware that her marriage to the Plaintiff was subsequently dissolved. 3. When the matter came up for directions the Court ordered the same to be heard by way of *viva voce* evidence. 4. There is no dispute that the suit property forms part of the matrimonial property, as both parties acknowledge that it was acquired during the subsistence of their marriage. **The only issue in dispute is the extent of each party's beneficial interest arising from their respective contributions towards its acquisition**. 5. **PW1 (the Plaintiff/Applicant)** herein testified, both in his witness statement and oral evidence, that he paid as sum of **Ksh. 900,000/=** as deposit towards the purchase of the suit property using proceeds from the sale of another parcel of land known as **Dagoretti/Riruta/5477**. In support of this assertion, he produced a Sale Agreement dated **15th November 2010**. 6. He further testified that the proceeds from the sale were deposited into his Equity Bank account and were subsequently utilised to finance the purchase of the suit property. In this regard, he produced bank statements showing that a sum of Ksh. 800,000/= was paid towards the purchase price of the suit property through **Cheque Nos. 009370 and 009372**, which were honoured on 18th November 2010 in favour of Augustus Njoroge Karurue and Leonard Njenga Karurue, respectively. The said payments are reflected in the Sale Agreement dated **19th November 2010** and are further corroborated by a letter from Equity Bank dated 22nd February 2023. 7. **Pw2 Simon Karanda Muthiga** testified on behalf of the Plaintiff where he said that he built residential house for the couple although when cross examined, he said that he did not have an agreement to that effect. 8. He said that he constructed the said house for one month and thereafter they moved in. He said that he was paid Kshs. 1500 per day. 9. **Pw3 Kennedy Macharia Irungu** testified that the Plaintiff/Applicant was his customer and the Respondent was his wife. He said that he never dealt with her all through except the Plaintiff 10. He said that he built 10 houses in 2017, 10 in 2018 and 13 in 2020 as well as the biodigester. 11. When cross examined, he said that he had no proof that he was a *fundi.* He also said that he had no evidence that he built the biodigester. 12. **Pw4 Daniel Musembi Kilaka** testified that he supplied building materials to the Plaintiff although he did not know where the materials were sourced from. He said that his driver would deliver them and that he would be paid and he issued receipts to the Plaintiff. 13. When re-examined he said that he did not go to the site but he sent his driver one Muoki. That the receipts indicated his name and not that of the customer and did not have a number. 14. **DW1 (the Defendant/Respondent)** on the other hand testified, both in her witness statement and oral evidence, that the parcel of land known as **Dagoretti/Riruta/5477** was purchased by the Plaintiff together with a third party, Elizabeth Kivaya, for a purchase price of Ksh. 1,000,000/= pursuant to a Sale Agreement dated **3rd September 2007**. She added that she contributed towards the acquisition of the said property by giving the Plaintiff Ksh. 30,000/= in cash. According to DW1, this contribution is corroborated by the Sale Agreement 15. Additionally, it was DW1’s testimony that she obtained a loan of Ksh. 400,000/= from KCB Bank, sold her retail shop for Ksh. 40,000/=, and sold maize she had cultivated for Ksh. 80,000/=. She stated that she handed these funds to the Plaintiff and to the workers at the construction site in cash. According to DW1, the parties developed sixteen (16) rental units together with washrooms on **Dagoretti/Riruta/5477**. She further testified that the property was subsequently sold for Ksh. 1,650,000/= and that the proceeds of the sale were utilised towards the purchase of the suit property. 16. DW1 testified that the deposit of Ksh. 900,000/= towards the purchase of the suit property was paid jointly by the Plaintiff and the Respondent through Cheque Nos. 009370 and 009372 using the proceeds from the sale of **Dagoretti/Riruta/5477**, to whose acquisition and development she had contributed. She further testified that she solely paid the balance of the purchase price of the suit property through the following payments: 1. Ksh. 100,000/= paid on 23rd May 2011; 2. Ksh. 40,000/= paid on 28th July 2011 following a withdrawal of Ksh. 97,928/= from her bank account; 3. Ksh. 60,000/= paid on 4th August 2011; 4. Ksh. 40,000/= paid on 3rd November 2012; 5. Ksh. 36,000/= transferred to the Plaintiff on 12th July 2014; and 6. The final payment towards the purchase price made on 20th July 2014, thereby completing payment for the suit property. 17. PW1 testified that he paid the balance of the purchase price on diverse states as follows: 1. Ksh. 100,000/= paid on 23rd May 2011; 2. Ksh. 40,000/= paid on 28th July 2011; 3. Ksh. 60,000/= paid on 4th August 2011. 18. These dates coincidentally match the dates provided by both PW1 and DW1. 19. DW1 further testified that the balance of the proceeds from the sale of **Dagoretti/Riruta/5477** was utilized to develop the suit property. She also testified that she obtained a loan of Ksh. 1,600,000/= to finance the development of the suit property. According to DW1, out of the loan proceeds, a sum of Ksh. 900,000/= was transferred to PW1 for the construction of rental houses, while a further sum of Ksh. 280,000/= was given to PW1 in cash for the purchase of building materials. She produced bank statements to ascertaining the transfer of Ksh. 900,000 to PW1. She additionally, stated that, as a result of these contributions, thirteen (13) rental houses were constructed on the suit property. 20. DW1 further testified that she sold **Plot No. V.2738-98/DCR 6692/MAP N2, measuring 100 × 100 feet** and situated in Embakasi Ranching Company Limited, for Ksh. 450,000/= in February 2019 and that the proceeds of the sale were utilized to construct the washrooms and biodigester on the suit property. According to DW1, PW1 witnessed the Sale Agreement and was therefore aware that the plot was being sold for the purpose of financing the development of the suit property. 21. According to DW1’s testimony, by September 2019 the suit property had been fully developed and was fully occupied by tenants. She further testified that it was around that time that the parties began experiencing marital difficulties, which ultimately led to their separation in 2020. According to DW1, no further developments have been undertaken on the suit property since their separation. 22. Both PW1 and DW1 admitted in their testimonies that they left their matrimonial home in 2020 which remained unoccupied for like a year. 23. DW1 further testified that, prior to the parties' separation, PW1 purchased another property known as **Karai/Gikambura/4779** in 2017. According to DW1, the parties had agreed that, since the suit property had been registered in her name, the Karai/Gikambura/4779 property would be registered in PW1's name. She, however, testified that PW1 subsequently sold the said property without her knowledge or involvement. 24. PW1, on the other hand, testified that he did not sell Karai/Gikambura/4779. Rather, he stated that the transaction was terminated after the vendor passed away before completion of the sale. In support of this assertion, PW1 produced the vendor's death certificate and a Termination of Sale Agreement evidencing the rescission of the transaction and the refund of the purchase price. 25. DW1 testified that the sale of Karai/Gikambura/4779 did occur but PW1 had the property registered in the name of Alice Njeri Njeru to avoid it forming part of matrimonial property. **ISSUES FOR DETERMINATION** 1. The parties are in agreement that Land Reference Number **Dagoretti/Waithaka/2182** is matrimonial property having been acquired during the subsistence of their marriage. The only issue that falls for determination is the extent of the Plaintiff 's and the Defendant's respective beneficial interests in the suit property, having regard to their respective financial and non-financial contributions towards its acquisition. **ANALYSIS AND DETERMINATION** 1. The Court has perused the submissions by the parties as well as their oral testimonies and those of the witnesses. 2. The Defendant, in her Submissions dated 30th March 2026, contends that the suit property was purchased using the proceeds from the sale of land parcel No. DAGORETTI/RIRUTA/5477, towards whose acquisition and development she made substantial financial contributions. 3. According to the Defendant, she sold her Plot No. V.2738-98/DCR 6692/MAP N2, measuring 100 × 100 feet and situated within Embakasi Ranching Company Limited, for Ksh. 450,000/=, secured a loan of Ksh. 400,000/= from KCB Bank, advanced Ksh. 30,000/= to the Plaintiff, and liquidated her personal assets, including her retail business and farm produce, all of which were applied towards the purchase and development of land parcel No. DAGORETTI/RIRUTA/5477. 4. She further submits that, through her financial support, sixteen (16) rental units were constructed on the said parcel, which was subsequently sold for Ksh. 1,650,000/=, and that the proceeds of that sale were utilized to purchase the suit property. 5. Having considered the pleadings, the evidence on record, and the submissions by the parties, the following issues arise for determination: 1. Whether the Plaintiff and the Respondent made financial and/or non-financial contributions towards the acquisition of Land Reference Number **Dagoretti/Waithaka/2182.** 2. If so, what are the respective beneficial interests of the Plaintiff and the Respondent in the suit property. 3. Whether the Plaintiff is entitled to the reliefs sought. 32. **Section 6(1)(c) of the Matrimonial Property Act, 2013** defines matrimonial property to include: any other immovable and movable property jointly owned and acquired during the subsistence of the marriage. 33. Under Section 7 of the Matrimonial Property Act, it is provided as follows: ***“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.”*** 34. From the evidence available in Court, it is clear and indeed not in dispute that the parties were married and only parted ways from the marriage pursuant to Divorce case No. 11 of 2021 before the Kikuyu law Courts leading to a divorce decree on 15th March 2022. This brings their dispute within the framework of the Matrimonial Property Act, 2013. 35. The law on the division of the property acquired during coverture in Kenya appears to be anchored on the proof of a party’s claim on the matrimonial property and considers monetary and nonmonetary contributions. A party to a matrimonial dispute cannot base his or her claim on the matrimonial property on 50:50 basis without demonstrating how their respective claims is arrived at. It is not an automatic entitlement conferred by virtue of the marriage. 36. In this case, the Plaintiff does not just seek a portion of the alleged matrimonial property. He seeks that 80% of the property be transferred into his name and 20% into the Defendant`s name. The objective of this Court is to do justice to the parties. As such, the parties must not only state their case but also lead evidence to prove the averments therein. The question of matrimonial property and contribution of the spouses towards acquisition thereof is a matter of fact and which must be proved by evidence to arrive at a fair and equitable division of the acquired matrimonial property guided by the provisions of Article 45(3) of the Constitution and the Matrimonial Property Act. 37. In the case of **Joseph Ombongi Ogentoto Vs Martha Bosibori Ogentoto (2023) eKLR**, the Supreme Court stated inter alia as follows: ***“ In the event that a marriage breaks down, the function of any Court is to make a fair and equitable division of the acquired matrimonial property guided by the provisions of Article 45(3) of the Constitution. To hold that Article 45(3) has the meaning of declaring that property should Petition No.11 of 2020 be automatically shared at the ratio of 50:50 would bring huge difficulties within marriages and Tuiyott, J (as he then was) has explained why above. Noting the changing times and the norms in our society now, such a finding would encourage some parties to only enter into marriages, comfortably subsist in the marriage without making any monetary or non-monetary contribution, proceed to have the marriage dissolved then wait to be automatically given 50% of the marital property. That could not have been the intention of our law on the subject.”*** 38. On contribution, the law recognizes the presence of spouses in marriage and their contribution whether monetary or non-monetary as part and parcel of their role during the subsistence of marriage. I am alive to the fact that each case must be determined based on its own peculiar circumstances and based on the evidence presented. Indeed, the Court of Appeal had this in mind in **T.K.M.v SMW[2020] eKLR** where it is stated as follows: ***“We bearing mind the verdict in Muthembwa v. Muthembwa (2002) 1 EA186, and many other decisions reminding the Courts that in assessing the contribution of spouses in acquisition of matrimonial property, each case must be dealt with on the basis of its peculiar facts and circumstances but bearing in mind the principle of fairness.”*** 39. 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”.*** 40. It is my considered view that the non-monetary contribution often-times cannot be quantified. It is thus imperative upon this Court to determine the issues in relation to the properties in this suit that were registered in the sole name of the defendant; as far as the doctrines of contribution and presumption of trust are concerned. I am fortified by Section 14 of the Matrimonial Property Act as follows: ***“ - Presumptions as to property acquired during marriage*** ***where matrimonial property is acquired during marriage –*** * + 1. ***in the name of one spouse, there shall be a*** ***rebuttable presumption that the property is held in trust for the other spouse; and*** * + 1. ***in the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal.”*** 41. In considering the parties' respective contributions towards the acquisition and development of the suit property, it is the Court's view that the evidence on record demonstrates that both parties made substantial contributions, both monetary and non-monetary. On the whole, the evidence suggests that the parties contributed equally towards the acquisition and subsequent development of the suit property. 42. The improvement and the later disposal of the property which led towards the purchase of the current property in issue was jointly done by the two during coverture. 43. Equally the Respondent was able to prove that she sold her property at Embakasi Ranching and took some loan which aided in the development of the suit properties. 44. The evidence of Pw 2 and 3 essentially explained how the properties were constructed. There is no evidence that the applicant paid for the materials alone and it appears that the said witnesses knew the Respondent very well as they met during their working at the suit property. The same goes with the construction of the biodigester. 45. Therefore, to the extent and circumstances of this case, the evidence produced by the Plaintiff in support of his case was not sufficient to establish 80% contribution. 46. Considering the evidence as presented I find that both parties contributed equally towards the purchase and development of the suit property which I consider matrimonial. The prayer for 80% in favour of the Applicant is untenable in the circumstances. 47. To be fair to both parties who apparently are both civil servants I hold that they are entitled to half share each. They shall be at liberty to split it if possible and or alternatively dispose it and share the proceeds equally. 48. **In the premises I direct as hereunder:** **(a) That land parcel number Dagoretti/Waithaka/2182 is declared a matrimonial property.** **(b) The same shall be shared out equally between the Plaintiff and the defendant, and for avoidance of doubt on 50:50 basis.** **(c) The parties are hereby directed to effect the same within 90 days from the date herein and in the event that it is not possible to split as directed above a valuation shall be undertaken through a registered and license valuer who shall be agreed upon by the parties and in default the Deputy Registrar of this Court shall appoint one.** **(d) The parties shall dispose the same by way of public auction through a registered and license auctioneer to be agreed upon by the parties and in the event of any disagreement the Deputy Registrar of this Court shall be at liberty to appoint one.** **(e) The parties shall sign their respective transfer instruments and in the event of any of them failing the Deputy Registrar of this Court shall be at liberty to execute.** 1. **Top of Form** 2. **Top of Form** 3. **Top of Form** 4. **Bottom of Form** **(f) Each party to bear own costs.** **Dated signed and delivered via video link at Nairobi this** **16th day of July 2026.** **H.K. CHEMITEI** **JUDGE, FCIArb.**Top of Form 1. Top of Form 2. Top of Form 3. Top of Form