The High Court has ruled that in a case where each party claims absolute ownership, the onus is on the parties to prove their contribution to the acquisition of the disputed land.
Justice John Onyiego also ruled that it is not enough to claim a right without providing evidence of the right through contribution, whether direct or indirect.
In a case where an American, James Oliver, sued his ex-wife, Agnes Karimi, seeking to be declared the sole owner of properties in dispute, the court held that it is incumbent on a party alleging a fact to prove it.
Justice Onyiego noted that under Section 7 of the Matrimonial Property Act, ownership of matrimonial property vests in the spouses in proportion to the contribution of each of them to its acquisition.
He added that the property would be divided between them in the event of divorce or dissolution of the marriage.
"Section 2 of the Act goes further to state that contribution means monetary and non-monetary," Justice Onyiego said.
The judge further said that a spouse should therefore not be denied their rightful share on the grounds that they did not directly contribute to the acquisition of the property.
Mr Oliver told the court that during their marriage, he had acquired the properties without any financial assistance from Ms Karimi.
He said that although a plot of land in Kilifi was registered in Ms Karimi's name as sole owner, with two plots of land in Kiembeni Mombasa having both of them registered as joint owners, she did not contribute a single cent to their acquisition.
He also told the court that in 2014, he and Ms Karimi left for the US, prompting him to hand over the title deeds of the land to his Ms Karimi’s sister for safekeeping.
The court heard that following his divorce from the respondent in a US court in 2018, he unsuccessfully sought his title deeds from Ms Karimi's sister.
Mr Oliver said the respondent had rented out the two properties in Kiembeni to strangers who paid rent to her for her benefit and exclusive use.
The applicant stated that he had single-handedly carried out numerous developments on the property where he stayed whenever he was in the country and where he intended to rest during the last days of his life.
Ms Karimi, for her part, stated that she alone acquired the properties and that she decided to include Mr Oliver as a co-owner out of love and compassion, describing the American's case as part of his plan to deprive her of her property.
She denied renting out the Kiembeni properties as alleged by the plaintiff, claiming instead that the two properties had been invaded by squatters and that part of the property had been turned into a rubbish dump, which she was fighting without any support from him.
Ms Karimi told the court that she had voluntarily allowed the plaintiff to stay on the Kilifi property, a fact or position she did not intend to change any time soon.
She told the court that after her marriage to Mr Oliver, they moved to the US where she got a job, the income from which enabled her to provide for her family.
Ms Karimi also said that in addition to the property in this country, she was single-handedly servicing a mortgage on a house in the US that was given to her after the divorce.
The judge noted that neither Mr Oliver nor Ms Karimi had provided evidence of any financial contribution to the two plots of land in Kiembeni, and that no purchase agreement had been produced to show who bought the land, from whom and for how much.
"The parties are merely asserting claims without any evidence of financial contribution," said Justice Onyiego.
He declared the Kilifi plot and the two plots in Kiembeni Mombasa as matrimonial property, and ruled that the Kiembeni land should be divided equally between the parties and that the value of the Kilifi land less the development should be awarded to Mr Oliver.
The judge added that the value of the development on the Kilifi property, as valued by a mutually agreed valuer, should be divided equally between the parties.
"In the event that the properties are not physically divisible, they may be valued by a mutually agreed valuer, sold and the proceeds of the sale divided and either party shall be free to buy out the other's beneficial interest in such properties," Justice Onyiego ruled.