The Supreme Court will now settle the contentious issue of whether couples in a marriage are equal and whether they should split matrimonial property equally upon divorce.
This is after the Court of Appeal on Friday found that there is an ambiguity in law and varied interpretation on whether matrimonial property should be shared based on one’s contribution to a marriage or equally.
The finding came from a case where the Court of Appeal had earlier ruled that an estranged couple share property equally.
The man, code named JOO then asked the court to certify his case as one of public interest to be heard by the Supreme Court.
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The man’s contention is that his wife, a banker code named MBO, deserves no part of his property since she gave nothing in the marriage.
The Court of Appeal said the law needed to be clarified on the matter.
“Having considered the issue, we find that the applicant has established that there is uncertainty in the law arising from contrary views in the High Court and in the Court of Appeal which requires clarification,” Court of Appeal Judges William Ouko, Mohamed Warsame and Fatuma Sichale ruled.
The couple married sometime in 1990 under the Kisii customary law and parted in 2008.
After parting ways, MBO went after a property in Tassia Estate in Embakasi Nairobi, two properties in Ngong, a Hillcrest Estate House, an apartment called Eagle Apartment House, and a Subaru vehicle saying she directly and indirectly contributed towards their purchase.
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At the heart of contention is Article 45 of the Constitution, which dictates that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.
Courts have over time given differing interpretations on what is a contribution to a marriage. Judges were initially shackled to a 125-year-old Britain legislation, the Married Women’s Property Act, 1882, which gave a judge discretion to share what he or she thought was just to the woman upon dissolution of a couple’s marriage.
The law dictated that upon marriage, a woman ceased to exist as a legal person and all of her possessions went automatically to her husband unless it was specifically spelt out that they were for her own separate use.
Britain amended the law to include the wife’s right to own, buy and sell her separate property sometime in 1970, but Kenya continued with the old law until January 6, 2014 when the Matrimonial Property Act 2013 was enacted.
There is still contention on whether courts should decide using this law for marriages procured before the 2010 Constitution.
The Married Women’s Property Act that Kenyan courts used until 2014 weighed in a monetary contribution by women in a marriage. But in 2007, the courts gave women the right to claim a share of their non-monetary contribution to a marriage, such as taking care of children and the husband.
In the case pitting Kenya’s former diplomat Peter Echaria against his wife Priscilla Njeri, the court ordered Echaria to give his former wife 25 acres from their 118-acre in Tigoni, Kiambu County. Echaria divorced Njeri in 1987.
Echaria was employed as a civil servant in 1961 before he was posted to Washington DC as Charge D’affairs and moved to New York as United Nations Head of Mission.
He later became Kenya’s ambassador to Ethiopia. His wife was not working, leaving Echaria as the family’s sole breadwinner, but Njeri argued that her husband’s well-being was determined by her show of love and taking care of him. Njeri had first demanded 59 acres before the Court of Appeal lowered it to 25.
How much should one get has continued to divide judges.
In 2017, Justice Patrick Kiage in a case filed by one Zipporah Wangui against her estranged husband Peter Njuguna, ruled that if one partner invested nothing in marriage, they should not ask for a slice of what was invested by the other partner on the basis of love.
A matter of mathematics
Wangui and Njoroge were embroiled in a 12-year court battle as the woman sought five properties - one in Nyahururu, three in Bahati-Kabatini and another one in Donholm.
Kiage ruled that sharing matrimonial property after divorce did not have a fixed formula in law and must be on the basis of fairness and conscience and not the 50:50 mantra.
“It is not a matter of mathematics merely, as in the splitting of an orange in two for, as biblical Solomon found, justice does not get to be served by simply cutting up a contested object of love, ambition or desire into two equal parts,” he said.
Kiage said the Constitution was not a safe haven for spouses who refused to put effort into their marriages.
“Our new constitutional dispensation is no safe haven for spouses who will not pull their weight. It cannot be an avenue to early riches by men who would rather reap from rich women or women who see in monied men an adieu to poverty,” said the judge.
But Court of Appeal Judge Martha Koome, in a dissenting decision, said the Supreme Court ought to interpret what men who live off women should prove in court while seeking a share of matrimonial property.
“A man who cohabits with a woman in a property held in the woman’s name also needs to prove contributions that he made because merely lounging in a woman’s house while dominating the remote control for the television channels cannot entitle a man to a share of the woman’s property,” she stated.