Kenya’s Court of Appeal/ Courtesy
NAIROBI Kenya, Dec 10- The Court of Appeal has reversed two precedent-setting judgments that had ordered for 50:50 division of matrimonial properties.
Over the last decade Kenya has enacted laws to ensure equality of spouses in marriage and equitable distribution of matrimonial property.
The second-highest court in Kenya overturned the judgments made by the High Court and settled on sharing of properties based on each spouse’s contribution.
The courts have been struggling on the question of whether spouses should split matrimonial property equally upon divorce, and the issue is also pending determination at the Supreme Court.
According to Matrimonial Property Act (2013), “ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”
The Federation of Women Lawyers in Kenya (FIDA-Kenya), an NGO that advocates for women’s rights, in 2015 petitioned the Constitutional and Human Rights division of the High Court in Nairobi to secure equal sharing of matrimonial property between spouses.
FIDA-Kenya argued that some provisions of the 2013 Matrimonial Property Act contravene the Kenyan constitution’s guarantee of equality during marriage and on divorce.
They argued that section 6 and 7 of the 2013 act directly and indirectly discriminate against married women upon dissolution of marriage.
In one of the overturned judgements, the appellate judges granted the woman a 10 percent share of the value of a matrimonial home only and explained that the man was entitled to 90 percent because evidence showed he paid for the property in full with no monetary contribution made by the wife at all.
There is no official gender disaggregated data on individual and joint ownership of land and property in Kenya.
However, 2018 data from Kenya Land Alliance, a network of nongovernmental organizations (NGOs) that advocates for secure and equitable access to land, shows that land ownership is disproportionately skewed toward men in all the 47 counties in Kenya, with women holding a paltry 1.62 percent of all land title deeds issued between 2013–2017.
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 got married in 2007 as a widow with one child and widower with three grown-up children.