Wamuzi News Ke
In a landmark decision with far-reaching implications for marital rights, Kenya’s Court of Appeal has affirmed that matrimonial property division upon divorce must be based on each spouse’s contribution — financial or non-monetary — rather than an automatic fifty-fifty split.
The ruling decisively rejected a bid by FIDA-Kenya to alter Section 7 of the Matrimonial Property Act, defending the status quo on fairness and evidence.
What the Court Ruled.
A three-judge bench unanimously upheld a High Court judgment and dismissed an appeal by FIDA, which had challenged Section 7 of the Matrimonial Property Act as incompatible with Article 45(3) of the Constitution. FIDA had argued the law discriminated against women by undervaluing domestic work and other intangible contributions.
The appellate court found that Section 7 is constitutional. Judges acknowledged that contributions may be monetary or non-monetary — covering chores, child care, home management, and moral support — but insisted courts must demand evidence before apportioning ownership. In their judgment, the judges noted:
“We do not agree … that Section 7 … is contrary to Article 45(3). Section 7 … neither violates nor contradicts Article 45(3).”
Implications for Marital Dissolution Cases.
This decision reshapes expectations for married couples, particularly women who may have foregone income or pursued domestic management.
Key takeaways include: No blanket equality: Marriage alone no longer guarantees a half-and-half division of property.Evidence matters more than ever: Claimants must establish their contribution, whether direct or indirect, to secure their rightful share.
Recognition of non-monetary work: Courts reaffirm that contributions such as homemaking, caring, and emotional support are valid for consideration.Customs vs law clash: The ruling may spark friction in communities where customary practices lean toward equal division or male dominance in property rights.
The decision builds on precedent: the Supreme Court in JOO vs MBO (2023) already held that “equality” in marriage does not translate to “automatic equivalence” of shares.
Reactions from Women’s Rights Advocates.
FIDA-Kenya expressed deep disappointment, branding the ruling a setback for women’s property rights. The organization pledged to take the matter to the Supreme Court, arguing the law remains inherently unfair to spouses whose unpaid contributions are the hardest to quantify.
Legal scholars predict the outcome will intensify debates over legal reform. Many argue the legislative drafting must be reviewed to better protect vulnerable spouses and provide clearer guidance on evaluating non-monetary contribution.
