A woman’s attempt to claim half of the assets she alleged were owned by her former husband has been dismissed by the High Court after a judge ruled that she failed to prove that the assets were matrimonial property.
Justice Reuben Nyakundi said the court could not examine a contribution to the acquisition of property where ownership itself had not been established.
The woman, identified as VJM for legal reasons, had sought an equal share of 33 assets she claimed belonged to her former husband, KKM.
But the judge dismissed the case and emphasised that marriage should not be treated as a business transaction upon divorce.
The court noted that despite listing 33 properties, the applicant did not provide a single title deed or ownership document to support her claim.
“Given that there are 33 properties that are the subject of the application, and the applicant has provided not a single title, this court cannot determine whether they are to be divided between the parties,” the court stated.
The court restated the legal position that property acquired before marriage remains the property of the spouse who bought it.
However, if the value of such property is enhanced during the marriage through substantial contribution by the other spouse, a beneficial interest may arise. The principle guiding such cases, the judge explained, is that equality does not always mean equal division, and each case must be assessed on its own facts.
Justice Nyakundi further observed that marriage does not extinguish individual rights and that spouses are free to own property independently, and not all property owned by either party automatically qualifies as matrimonial.
The judge added that claims must be supported by clear proof of contribution, whether monetary or non-monetary.
In this case, the court found no credible evidence showing that the applicant contributed to the acquisition or improvement of the properties listed and therefore, there was also no basis for presuming that the assets were jointly owned simply because the parties were married.
The woman told the court that she married the respondent on September 12, 2008, and that during the marriage they jointly acquired several properties, including a residential flat purchased in 2012 for Sh25 million.
She also claimed they built a matrimonial home and lived in other residential houses in Eldoret. VJM argued that she made substantial direct and indirect contributions and that the former husband held the properties in trust for her.
She further stated that their marriage was dissolved through a decree issued on June 7, 2024, and urged the court to award her an equal share of the matrimonial estate.
The man, however, disputed her claims. While he acknowledged that they married in 2008, he testified that the marriage deteriorated shortly thereafter due to cruelty. He accused the applicant of non-disclosure, stating that she had children from a previous relationship, which affected trust between them.
KKM further alleged that the woman denied him conjugal rights and deserted the matrimonial home in 2009, choosing to live separately. According to him, the marriage was short-lived, produced no children, and ultimately broke down irretrievably, leading to divorce.
He further denied that she contributed financially or otherwise to the acquisition of any of the properties.
He also accused the woman of taking advantage of the marriage to dispose of some properties without his consent, an ordeal he said caused him emotional distress and ill health.
In evaluating the evidence, the court noted that for property to qualify as matrimonial, it must be shown to have been acquired during the marriage and registered in the name of one or both spouses.
The judge said inherited property does not ordinarily form part of matrimonial assets unless it was substantially improved during the marriage.
The judge underscored that the Matrimonial Property Act does not guarantee a 50:50 division of assets. Instead, courts must consider factors such as the length of the marriage, each spouse’s contribution, and the nature of the property in question.
In this case, the court found that the applicant failed to demonstrate any meaningful contribution, either financial or non-monetary, to the acquisition or appreciation of the listed assets.
Claims of companionship, homemaking or childbearing were either disputed or unsupported by evidence and did not withstand cross-examination.
Justice Nyakundi concluded that the VJM did not discharge the burden of proof required under the law, since without evidence of ownership or contribution, there was no basis for granting her a share of the properties.
“Evidently, I hold the view that in absence of probative credible evidence on the part of the Applicant, the property so listed for distribution fails the evidential test that it was acquired with her assistance or a joint effort with the Respondent,” said the court.
