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Article Kenya: Supreme Court Rules Couples Not Entitled to Automatic 50 Percent of Matrimonial Property upon Divorce

On January 27, 2023, the Supreme Court of Kenya ruled that marital property must be shared on the basis of fairness and not in accordance with an automatic, fixed formula that imposes a 50-50 split. The judgment was the maiden interpretation of article 45(1) and (3) of the 2010 Kenyan Constitution concerning the mode of distribution of property acquired during a marriage.

Background to the Case

The case, which started at the High Court and made its way to the Court of Appeal and then finally to the Supreme Court, began with a petition by the respondent claiming her share of the marital properties registered in the name of the applicant. Although the High Court found that the respondent had failed to show direct contributions in the acquisition of the property registered in the name of the appellant, it acknowledged that she did in fact “make indirect non-monetary contribution towards the family’s welfare in the form of upkeep and welfare.” The court ruled that this entitled the respondent to a 30% share of their matrimonial home and a 20% share of the rental units constructed within the property. Unsatisfied with the High Court’s decision, the respondent successfully appealed the matter, and the Court of Appeal set aside the High Court’s decision, ordering that the property be shared 50-50 between the appellant and respondent. The court considered articles 45(1) and (3) of the Constitution and the provisions of the Matrimonial Property Act, 2013, both of which were promulgated after the respondent filed the original summons at the High Court. Both the Constitution and the Matrimonial Property Act espouse the principle of equality of spouses during and after marriage.

Supreme Court Holding

On the first issue, which was to determine the applicability of the new Constitution and the Matrimonial Property Act to a case filed before their promulgation, the court held that the Matrimonial Property Act 2013 does not have retroactive application and, therefore, couldn’t have applied to a summons that was filed earlier. However, the court held that the same principle of nonretroactivity does not necessarily apply to a constitution as “a Constitution looks forward and backward, vertically and horizontally, as it seeks to re-engineer the social order, in quest of its legitimate object of rendering political goods.” On the basis of this assertion, the Supreme Court decided that the Court of Appeal was correct to apply the 2010 Kenyan Constitution retroactively.

The other issue the court determined was whether equality of parties during and after marriage, as provided for under article 45(3) of the Constitution, means an equal split of property at divorce without regard to their level of contributions. The court held that equality of spouses does not involve the redistribution of property rights at the dissolution of marriage. It explained that a court does not have the power to vary existing property rights of parties and take away what belongs to one spouse and award half of it to another spouse who has contributed nothing to its acquisition merely because they were or are married to each other. Furthermore, the sharing of matrimonial property should not be based on a fixed formula in law but by considering the respective contribution of each party to ensure that no party is unfairly denied what they deserve and that no party is unfairly given more than what they contributed.

The court noted that it will apportion and divide marital property only when the parties fulfill their obligation of proving what they are entitled to by way of contributionIn so doing, the court will consider direct and indirect contributions on the basis of fairness and conscience. The court noted that although one party may have been in a position to make financial contributions toward acquiring property, the other party

may … through their actions or their deeds, [have] provided an environment that enabled the other party to have more resources to acquiring the property. This is what amounts to indirect contribution. Equity therefore advocates for such a party who may seem disadvantaged for failing to have the means to prove direct financial contribution not to be stopped from getting a share of the matrimonial property.

Prepared by Emmanuel Amoah, Law Library intern, under the supervision of Hanibal Goitom, Chief, Foreign, Comparative, and International Law Division I

Law Library of Congress, February 21, 2023

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Chicago citation style:

Goitom, Hanibal. Kenya: Supreme Court Rules Couples Not Entitled to Automatic 50 Percent of Matrimonial Property upon Divorce. 2023. Web Page. https://www.loc.gov/item/global-legal-monitor/2023-02-20/kenya-supreme-court-rules-couples-not-entitled-to-automatic-50-percent-of-matrimonial-property-upon-divorce/.

APA citation style:

Goitom, H. (2023) Kenya: Supreme Court Rules Couples Not Entitled to Automatic 50 Percent of Matrimonial Property upon Divorce. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2023-02-20/kenya-supreme-court-rules-couples-not-entitled-to-automatic-50-percent-of-matrimonial-property-upon-divorce/.

MLA citation style:

Goitom, Hanibal. Kenya: Supreme Court Rules Couples Not Entitled to Automatic 50 Percent of Matrimonial Property upon Divorce. 2023. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2023-02-20/kenya-supreme-court-rules-couples-not-entitled-to-automatic-50-percent-of-matrimonial-property-upon-divorce/>.