Court rules buying furniture not enough to claim major share of matrimonial home

Appellate court revokes matrimonial home award to woman who bought furniture as contribution.

A woman, AJM, has lost her claim to their palatial house in Nairobi after the appellate court said buying furniture is an insignificant contribution to guarantee a share of matrimonial property.

The woman, who divorced her husband CLO after 34 years of marriage, said that she had bought furniture for their matrimonial home at Avenue Park Phase Two.

On September 17 2024, Justice Hillary Chemitei awarded AJM 80 per cent shares in the home, while CLO who bought and serviced the loan for the house, was awarded 20 per cent shares.

However, Justice Kathurima M’inoti, Enock Mwita and Byram Ongaya overturned the High Court verdict and instead awarded CLO 80 per cent shares in the matrimonial home, while AJM received 20 per cent.

The judges said that although registered in the joint names, the undisputed fact is that CLO purchased the house through a loan which he serviced through his salary and the family still resides in the house.

The judges said that the High Court failed to apply the principle of fairness based on the ascertainable contribution by each spouse.

Justice M’inoti said that AJM’s contribution towards improving the property, such as purchasing furniture and any other undertakings, would not, on their own, justify the 80 per cent the High Court gave her.

“The distribution in relation to Avenue Park Phase II House No. 43B is hereby set aside and in place therefor, the appellant (CLO) shall get 80 per cent while the respondent (AJM) shall get 20 percent,” said Justice K M’inoti.

The judges noted that married couples have equal rights to matrimonial property and both direct financial and indirect non-monetary contributions like domestic work are recognized when dividing assets upon divorce.

The appellate court said that the division of matrimonial property must be based on the actual verifiable contribution each spouse made towards the acquisition and development of the property.

“A spouse does not acquire any beneficial interest in matrimonial property by fact of being married only and that specific contribution has to be ascertained to entitle such a spouse to a specific share of the property,” said Justice M’inoti in reference to the Supreme Court ruling.

The judges noted that contribution to acquisition of matrimonial property under Section 2 of the Matrimonial Property Act includes monetary and non-monetary contribution like domestic work and management of the matrimonial home, child care, companionship, management of family business or property and farm work. 

“Any of the above acts would, in law, amount to contribution towards acquisition of matrimonial property and should guide a court when considering distribution of matrimonial property,” said Justice M’inoti.

The appellate court, however, upheld the 50:50 share awarded to CLO and AJM in their rural home in Kabondo.

CLO argued that he deserved to have the Kabondo home having single-handedly purchased it and registered in his name

However, AJM said that she contributed Sh9,000 out of the purchase price of Sh20,000 and worked on the land, planted trees, paid workers and even undertook construction works to improve the property as their rural home. 

AJM also received 80 per cent of the Tree Lane house in Nairobi which she purchased after selling off another house, Funguo House, also situated in Nairobi.

CLO was awarded 20 per cent shares of the Tree House after the court held that he did not contribute towards the purchase of the said house.

AJM acquired Funguo House during their marriage and later sold it and purchased Tree House.

However, CLO said that he gave her Sh157,000 as a deposit towards the purchase of Funguo House, a fact he failed to prove in court.

In awarding CLO 20 per cent share of Tree House, the appellate judges held that by providing shelter to AJM, CLO contributed towards helping her pay the loan for the Funguo House that she later sold and bought Tree House, including paying fees for their two sons.

“We take the view that the appellant’s entitlement, if any, went to paying fees for their son, for which both parties were responsible. In any case, since part of the proceeds was used to acquire Tree Lane house, and the High Court found that the appellant’s contribution towards the acquisition of both Funguo house was not significant, the appellant still got 20 percent share of the Tree Lane house,” said Justice M’inoti.

The judges said that should parties fail to agree on how to distribute the property and get their respective shares, the property shall be valued and sold for each party to take their share in the ratio determined above.