When love ends, proof begins: Hard lessons from Kenya’s matrimonial property battles
A court has emphasised the importance of equity in matrimonial property matters after divorce.
What you need to know:
- Court affirms that non-monetary contributions like childcare and home-making matter in property division rulings.
- Judges say there is no automatic 50/50 split, but fairness demands recognition of all efforts in a marriage.
When marriages end, disputes over property can quickly turn into bitter court battles. Two recent cases, one from the Kitale High Court and another that travelled all the way to the Supreme Court, offer critical lessons for men and women on how Kenyan courts view ownership, contributions, and fairness in dividing matrimonial property. From the role of trust to the need for evidence, the rulings show that while non-monetary contributions are recognised, proof remains king.
What happened in the Kitale High Court case?
IC (ex-wife) went to court seeking an equal share of a 10-acre farm she claimed to have fully paid for. Her name, however, was missing from the sale agreement because she was often away on foreign assignments and had trusted her husband to handle the payments. She would withdraw money from her bank account and give it SS (ex-husband). But in court, she had no proof of these payments, while her ex-husband had the sale agreement showing he was the sole purchaser.
How did the Kitale court approach the issue?
The court relied on Section 2 of the Matrimonial Property Act, which recognises both monetary and non-monetary contributions such as domestic work, child care, companionship, management of family business or property, and farm work. It noted these categories are not exhaustive and can include other inputs. Since the couple had lived together during the farm’s acquisition, IC had provided accommodation, and they had a child together, the court valued her contribution at 50 per cent.
Read: Divorcing after 10 years: Can a housewife claim a share of property for homemaking and childcare?
What if you spent your money building a house on land your husband acquired before marriage? Could you claim it upon dissolution of the marriage?
Again, in the case of IC versus SS, IC told the court that she had purchased all the building materials for the construction of a five-bedroom house on a plot her husband had acquired before their marriage. However, she had no receipts or proof of purchase. The court therefore found her claims unproven and declared that both the plot and the house belonged solely to the ex-husband.
What lesson comes out of the Kitale case?
Even without financial receipts, non-monetary contributions can be recognised but they must be proven through credible evidence like living arrangements, childcare, or household management. At the same time, property that belonged to the man before marriage remains his, not “ours” unless you have clear, documented proof of your contribution.
What was the dispute in the JOO vs MBO case?
JOO (ex-husband) and MBO (ex-wife) were married before 2010 under the old Marriage Act. They developed rental units on their Nairobi matrimonial home registered under the ex-husband's name. MBO said she had taken loans to fund construction and to pay school fees. JOO denied her contribution and claimed he had supported her after she lost her job.
How did the High Court rule?
It awarded MBO 30 per cent of the matrimonial home and 20 per cent of the rental units.
What happened on appeal?
MBO appealed the ruling, seeking an equal share. The Court of Appeal found MBO had taken multiple loans including Sh183,000 for the matrimonial home and Sh1,065,000 for the rentals, and that the High Court had wrongly disregarded this. It increased her share to 50 per cent of both the property and the rental income.
What issues did the Supreme Court address?
JOO, dissatisfied with the appeal’s outcome, took the case to the Supreme Court. He argued that marriage should not automatically mean a 50:50 split, and that the Matrimonial Property Act (2013) and Article 45(3) of the Constitution could not be applied retrospectively to a 2010 case.
What did the Supreme Court decide?
It agreed that marriage alone does not guarantee an equal split. Contributions, monetary or non-monetary, must be proven. It upheld the 50:50 division because MBO’s loans and other inputs significantly supported the property’s acquisition and development.
What lesson comes out of the JOO vs MBO case?
Trust is important, but documentation is vital. Even when non-monetary contributions are valued, and the property is registered in the other party’s name, solid records of financial support can make or break a claim.
