Court rejects husband’s bid to halt property sale, wife to receive 35% share

The Court of Appeal has dismissed a husband’s bid to halt the sale and division of matrimonial property.

The dispute stems from a judgment delivered by the High Court of Kenya on February 13, 2025, in which the court ordered the valuation, sale, and distribution of a parcel of land located in Kajiado County. 

The High Court ruled that the proceeds from the sale would be shared in the ratio of 65:35, in favour of the husband, with compliance required within 90 days. 

Dissatisfied with the judgment, the husband filed a notice of appeal and subsequently moved the Court of Appeal to seek a suspension of the execution of the High Court decision pending determination of the appeal.

The husband argued that the property in question had been acquired before the solemnisation of the marriage.

"The applicant (husband) contends inter alia that the suit property was acquired before the solemnisation of the marriage between the parties and that the respondent (wife) did not contribute to its acquisition," the judgment states.

He contended that the High Court erred by failing to distinguish the value of the land from improvements made to it and by ordering the sale and distribution without proper valuation. 

According to his counsel, failure to halt the execution would render the intended appeal nugatory (of no value), as the property could be disposed of before the appeal is heard.

The wife opposed the application, arguing that the property is matrimonial property developed during the subsistence of the marriage. 

Her legal team highlighted both direct and indirect contributions she made toward the property over the years.

"Counsel reiterated that she contributed directly to the development of the suit property as well as indirect contribution of domestic work, child care, including payment of school fees amounting to Sh31,518,468, companionship, farm work, and management of family business without pay for 18 years," the judgment notes.

The wife further submitted that the husband’s application was a tactic to delay enforcement of the judgment and that she had a constitutional right to property acquired or developed during the marriage.

At the hearing, both parties filed written submissions. 

The Court of Appeal first considered whether the intended appeal was arguable—a requirement under Rule 5 of the Court of Appeal Rules. 

The bench found that the husband’s appeal raised arguable points, particularly regarding whether the High Court erred in law and fact by treating the property as subject to division based on contributions allegedly made by the wife. 

While arguable, the court emphasised that an appeal does not automatically warrant a stay of execution.

The critical consideration, the court noted, was whether execution of the judgment would render the appeal nugatory.

In this case, the High Court had specified the exact shares of the property: 65 per cent to the husband and 35 per cent to the wife. 

Furthermore, either party had the option to buy out the other’s share. 

The court observed that the value of the property was determinable and that financial compensation would constitute an adequate remedy if the appeal succeeded.

“Where the subject matter is capable of valuation, and compensation can be made in monetary terms, damages may constitute an adequate remedy,” the Court held. 

The judges further concluded that the appeal would not be rendered nugatory simply because the property might be sold or the proceeds distributed. 

The bench was not persuaded that halting execution was necessary to protect the husband’s interests.

The court also highlighted the prolonged nature of the dispute, noting that the litigation had spanned several years.

 It emphasised the need to balance the husband’s right to appeal with the wife’s right to enjoy the fruits of a final judgment. 

Courts, it noted, must guard against applications for stays being used as instruments of delay, particularly where remedies such as financial compensation are available.

Having failed to satisfy the two-pronged test under Rule 5—arguable appeal and risk of rendering appeal nugatory—the husband’s application for a stay was dismissed with costs to the wife. 

As a result, execution of the High Court order can proceed, ensuring that the wife will receive her 35 per cent share of the property while the husband retains 65 per cent.