The Court of Appeal has slammed the brakes on an attempt to revisit the law
governing the division of wealth upon divorce or dissolution of marriage.
A three-judge bench of the Appeal Court
reaffirmed that Section 7 of the Matrimonial Property Act is constitutional as
it provides that each party will get whatever is equal to their contribution
during the marriage to the family wealth.
The bench was composed of Justices Aggrey Muchelule, Kairu Gatembu, and Fred Ochieng’.
However, Justice Ochieng’ passed
on before the delivery of the judgment, which was done on October 3, 2025.
The Federation of Women Lawyers Kenya
(FIDA-Kenya) had moved to the superior court seeking to declare the provision
unconstitutional and discriminatory to women. The then High Court Judge John
Mativo, in a judgment delivered on May 14, 2018, reaffirmed the provisions of
the Act as constitutional, prompting the appeal.
FIDA instead sought to have the courts declare
that women are entitled to a 50:50 sharing of matrimonial property upon the
marriage ending, irrespective of contribution.
In effect, FIDA’s case wanted a scenario where
one walks into a marriage empty-handed but walks out with half of the
matrimonial property without necessarily proving personal contribution to the
acquisition or growth of that property.
The law provides that, on divorce or
dissolution of a marriage, matrimonial property be divided between spouses
according to the monetary and non-monetary contribution of either spouse
towards its acquisition.
Article 45(3) of the Constitution provides
that parties to a marriage shall have equal rights at the time of the marriage,
during the marriage, and upon the dissolution of the marriage.
FIDA submitted that the way Section 7 of the
Matrimonial Property Act is written infringes on married women’s rights to own
property after the marriage ends since they must prove their contribution to
acquire it.
“While the definition of contribution now
included monetary and non-monetary contribution, a spouse who contributed money
was in a better position. This meant that the male spouse was advantaged
compared to the female spouse whose non-monetary contribution had been left to
the whims of the courts to calculate and/or estimate,” FIDA’s case stated.
It added: “The effect has been discrimination
and the denial and violation of women’s rights to property, leading to
decisions that are in conflict with the constitutional command under Article
45(3) of the Constitution which, according to the appellant, means a 50:50
sharing of matrimonial property upon the marriage ending irrespective of
contribution.”
FIDA’s lawyers argued that judges have time
and again interpreted financial contribution as being of a higher degree than
non-financial contribution.
By treating these two contributions
differently, the female lawyers’ body said it is discriminatory in the sense
that the day-to-day activities which women contribute towards cannot be
logically quantified.
“And so, at the end of marriage, money that
was utilized to buy a property is quantifiable, a bank transfer is easy to
trace. And so, by treating those two contributions differently, women end up
poor at the end of marriages. They leave marriages without property.”
The Attorney General, listed as the respondent
in the case, argued that the Matrimonial Property Act, having defined
“contribution,” made it fair and just that, upon the ending of a marriage, the
spouses’ claim to matrimonial property be measured in accordance with their
respective contribution to its acquisition.
“Therefore, Section 7 of the Act does not
lessen the claim of the woman spouse, or contravene or contradict Article 45(3)
of the Constitution by asking what each spouse contributed, either by way of
money or otherwise, towards the acquisition of matrimonial property,” the AG
stated.
In its finding, the Court of Appeal noted that
during the discussions of the Constitution of Kenya Review Commission at Bomas,
the place of women in a marriage, their right to property, especially land, and
their protection against discrimination were important subjects that eventually
found their place in the Constitution.
“The Constitution made it categorically clear
that ‘every person’ (whether man or woman) had inherent dignity and the right
to have that dignity respected and protected, and ‘every person’ is entitled to
all human rights and fundamental freedoms in the Constitution.”
In the concurring decision, Justices Muchelule
and Gatembu declared that the express inclusion in the Matrimonial Property Act
of non-monetary contributions for the purpose of division of matrimonial
property was evidently a response to the historical and judicial invalidation
of non-monetary contributions.
“The noble intention was to ensure that
division of matrimonial property is fair and equitable. As we understand it,
the practical challenge which the appellant says has a discriminatory effect is
that while, for instance, it may be easier to produce bank statements and other
documentary evidence to establish financial or monetary contribution, it may
not be so regarding non-monetary contributions such as provision of household
management and childcare.”
They added: “However, at the end of the day,
it is a question of evidence and courts are equipped to assess the weight and
credibility, or otherwise, of the evidence presented, whether documentary or
non-documentary, by the parties, with a view to determining whether the spouse
claiming contribution has discharged his/her burden of proof in that regard.”
As pronounced by the Supreme Court, the judges
said the function of any court, in the event that a marriage breaks down, is to
make a fair and equitable division of the acquired matrimonial property guided
by the provisions of Article 45(3) of the Constitution.
“At the end of the day, therefore, we do not agree
with either the appellant or the Amicus Curiae when they complained that the
learned judge fell into error when he determined that Section 7 of the
Matrimonial Property Act was not contrary to, or inconsistent with, Article
45(3) of the Constitution. Section 7 of the Matrimonial Property Act neither
violated nor contradicted Article 45(3) of the Constitution. The result is that
we find the appeal not merited and dismiss it.”
