Kenya’s matrimonial property division laws were borrowed from those enacted in England in 1882.
Married Women’s Property Act, 1882, was adopted by Kenya as part of its laws. This, despite the fact that England found the law wanting and made changes thrice; in 1967, 1970 and 1973.
Kenya soldiered on with the same law until 2010 when the new constitution was promulgated and Article 45( 3) on the family came to be.
One of the earliest cases to be solved through Article 45(3) was between one Agnes Nanjala and Petrus Nicholas. Then, the court ruled that the article gave equal rights to both parties.
The court ruled that it was a constitutional statement of principle that marital property is shared 50-50 in the event that a marriage ends. But it directed Parliament to enact more laws to clear the issue.
Two years after promulgation, Parliament came up with Matrimonial Property Act, 2013. It came into force on January 16, 2014.
In Section 7, MPs pointed out that ownership of matrimonial property is based on each marriage partner’s contribution and ought to be divided as such in event of divorce.
In section 2, the lawmakers defined this contribution in terms of monetary and non-monetary contribution, which included domestic work and management of matrimonial home, child care, companionship, management of family business property and farm work.
Article 45 (3) of the Constitution states that parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of marriage.
Court of Appeal Judge Patrick Kiage ruled that this means marriage is a partnership of equals- that no spouse is superior to the other.
The judge ruled that the section gave equal voice to both men and women in such decisions as what should be eaten for dinner, how many children should be born from the marriage and how to invest.
Justice Kiage’s view is that both men and women should have an equal voice on where the family should reside and in the event of marriage breakdown, who should have custody of the children.
He was however categorical that equality does not mean equal share of matrimonial property.
Lawyer John Chigit agreed with the judge that contribution determines what one gets.
“How much one gets will be determined by direct and indirect contribution, which is done at the discretion of the judge.”
According to Lawyer Paul Lilan, this law supersedes all other marital traditions, including those embedded in African cultures.
“It brings a sharp conflict with the traditions of some communities (where) if in case of divorce, the wife leaves with nothing,” he said.