JUDGMENT OF THE COURT
1. The appellant and the respondent are a divorced couple who intermittently reside in Kenya and Germany. During the subsistence of their marriage, the two were joint proprietors of land described as subdivision Nos. 2331 (Orig. No. 1878/29) and 1878 (Orig. No. 937/13) Section III MN in Mtwapa (the suit land) and all the developments thereon in equal shares; including a three bedroom matrimonial house built by the couple and in which they resided prior to their separation in 2005. That house forms the subject of this appeal.
2. In a suit filed by the respondent at the Environment and Land Court (ELC), she averred that the parties had mutually agreed that in the event of a divorce, the appellant’s share in the house shall pass onto the respondent; thereby vesting the proprietorship of the house solely upon the respondent. However, that contrary to that agreement, when the parties divorced in 2008, the appellant failed to honour the agreement and instead moved into t…