Court of Appeal judges have overturned 50-50 division of matrimonial property in two landmark verdicts, as debate rages on on how assets acquired during marriage should be shared.
In one judgment, the judges granted the woman a 10 per cent share of the value of the matrimonial home, and explained that the man was entitled to 90 per cent because evidence showed he paid for the property in full with no monetary contribution from the wife at all.
The appellate court noted that there was no child born from the couple’s union, hence the woman’s contribution would only fall under “companionship”. This is because even household chores like purchases at the supermarket were undertaken by a house help and the man’s driver.
Evidence in court indicates that the couple married in 2007 as a widow (with one child) and a widower (with three grown children).
In the second judgment involving a former magistrate, the court granted him 65 per cent and the wife got 35 per cent of the wealth valued at more than Sh100 million.
This is because the man's professional work was always on an upward trajectory and no doubt his direct financial capability outweighed that of the wife, the court ruled.
The rulings come at a time most High Court judges have been ordering divorced spouses to divide their matrimonial property on a 50-50 basis.
The Court of Appeal, however, appears to be opening up for sharing of assets based on each spouse’s contribution.
Each party’s contribution
“In any case, marriage per se is not a ground for sharing properties acquired during marriage on an equal basis. The law in a well-trodden path has established that parties must show evidence of their respective contribution to the properties and secondly, to the family well-being,” stated the Court of Appeal in one of the judgments.
In the first case involving the former magistrate, Justices Kathurima M’Inoti, Fatuma Sichale and Jamila Mohammed said the evidence on record does not permit a conclusion that the contributions during the marriage were equal.
They said although the woman, N W M, directly and indirectly contributed to the acquisition of the properties in dispute, the question that arose was to the equitable and just mode of distribution.
“Equality of contribution in a marriage cannot be assumed, although it may readily be inferred from the evidence of each party’s contribution in some cases. In our view, the evidence on record does not permit a conclusion that the contributions during the marriage were equal,” said the appellate judges.
They observed that there was no doubt that the woman’s contribution played a vital role in liberating the man to devote his time and energy to the growth of his career, financial gain, the acquisition of property and even manage a business for the family.
The woman is a retired nurse, and she divorced the man, S M K, in 2018, over adulterous relationships with seven women, including the house help. The couple got married in 1979.
As for the woman’s specific financial contribution to the matrimonial property, the judges said the documentary evidence provided was unsurprisingly scanty as is of the case in marriages where one spouse relies on the other to make investments on the family’s behalf.
The appellate judges said High Court judge Asenath Ongeri overlooked the weight of the man’s evidence, not only as the main financial contributor, but that the wealth of the parties was amassed by his seizing opportunities as they arose and by careful investment.
In the second judgment, the court said according to the interpretation of contribution and Section 2 of the Matrimonial Property Act, the woman did not place any evidence before the trial court to show that she engaged in domestic work or management of the matrimonial home.
“On the material placed before the judge, there was no basis at all to reach the conclusion that the parties to the marriage were entitled to an equal distribution of the matrimonial property. They were not,” said Justices Hannah Okwengu, Mohammed Warsame and Sankale Ole Kantai.
They ruled that although the properties were registered in their joint names, the man, E N K, was able to show that he did that purely for the affection he had for his wife, named M N N N, at the material time.
When divorce came, he proved to the required standard that he had personally bought and paid for the properties. The woman did not make any monetary contribution.
“Evidence shows that the woman purchased her own properties during the subsistence of the marriage and the man is not, to his credit, claiming any share interest in the said property. We do not understand why the respondent wants to benefit from the hard earned labour of the man,” said the judges.
