The Kenyan Supreme Court has declared that matrimonial property should not be shared equally between the man and the woman after separation.
In their landmark decision, a five-judge bench ruled that the properties should be divided according to each partner’s contribution during the subsistence of their marriage, and that each partner must prove their contribution to enable a court to determine the percentage available to them.
“To hold that properties should be automatically shared at the ratio of 50:50 would bring huge difficulties within marriages and encourage some parties to only enter into marriages, comfortably subsist in it without making any contribution, proceed to have it dissolved then wait to be given 50% of the marital property,” ruled the judges.
Judges Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndungu and Isaac Lenaola issued the verdict in a case where Joseph Ombogi and Martha Bosibori were fighting for their matrimonial properties.
Ombogi and Bosibori were married in 1990, but the High Court declared their union irrevocably broken down in 2015 after they filed for divorce. Bosibori then sought 50% of the properties which included their matrimonial home, rental apartments, landed properties and a motor vehicle.
The High Court ruled she was only entitled to a 30% share of the matrimonial house and 20% of the rental apartments; the court denied her a portion of all other properties, saying she did not prove her share of contribution in acquiring them. Bosibori appealed to the Court of Appeal, where three appellate judges overturned the decision and ruled she was entitled to a 50% share of the matrimonial home and the rental apartments.
Ombogi turned to the Supreme Court, arguing that his estranged wife was not entitled to equal shares of the properties. The Supreme Court held that a spouse does not acquire beneficial interest in matrimonial property by fact of being married, and that specific contribution has to be ascertained to entitle such a spouse to a specific share.
“The equality provision in Article 45(3) of the Constitution does not entitle any court to vary existing proprietary rights of parties and take away what belongs to one spouse and award half of it to another that has contributed nothing to its acquisition merely because they were married,” ruled the judges.
The decision evoked mixed reactions among the Kenyan public, with some family lawyers arguing the courts should not only consider the monetary contribution when determining the shares each partner should get.
“Contribution should not be in terms of money and materials. Sometimes the woman contributes to the marriage through food, psychological and emotional support. The woman’s presence to take care of the home is what allows the man to acquire the property. This should be taken into consideration when determining her percentage,” said lawyer Dorine Kali.
Advocate Racheal Olinga agreed that the courts can do more by recognising the woman’s indirect contribution towards acquisition of properties and that the 50% share should not only be pegged on monetary contribution.
“The Supreme Court in consideration of a further appeal has made a finding that the Marriage Act,2014 and the Matrimonial Property Act, Act No. 49 of 2013 were not applicable in this matter, as the cause of action arose before the statutes were enacted into law.
However, the now-repealed Married Women’s Property Act may apply to all marriages recognized and unrecognized in law,” the court ruled.
The Court also made a finding that presumption of a marriage is the exception rather than the rule and that the circumstances in which a presumption of marriage can be upheld are limited.
Drawing from the submissions of the parties, the Supreme Court found no marriage can be presumed between Kangara and Mayaka. However, the Court determined that there was a common intention of the parties at the time of purchase of the property that gave rise to a constructive trust between them. Since they both contributed to the acquisition, improvement and maintenance of the property, the Court apportioned the property at the ratio of 70% to Kangara and 30% to Mayaka.
This judgement sets a precedent for future cases involving the division of matrimonial property in Kenya, particularly in cases where a presumption of marriage cannot be made.
