Kenya’s Supreme Court Overturns 50-50 Ruling on Matrimonial Property

The Supreme Court has ruled that spouses are not entitled to an equal share of matrimonial property in case of divorce.

In a ruling released on Friday, the apex court held that the distribution of property is solely based on individual contributions and that each partner must prove their contribution for a court to determine the percentage they are entitled to.

Although Article 45(3) of the Constitution deals with equality of the fundamental rights of spouses during the dissolution of a marriage, the judges noted that such equality does not mean the re-distribution of proprietary rights or an assumption that spouses are automatically entitled to a 50/50 share by the fact of being married.

The court made the ruling in a case where Joseph Ombogi Ogentoto filed an appeal seeking to overturn a decision by the Court of Appeal that ordered their matrimonial property with rental units be shared equally between himself and his estranged wife Martha Bosibori.

The couple was married under Abagusii customary law in 1990 and later formalized their union under the repealed Marriage Act in 1995. 

During the subsistence of the marriage, they acquired a matrimonial home and put up rental units on the property. But in 2008, the marriage broke down and the couple decided to dissolve the marriage.

While overturning the Appeals Court judgment, the Supreme Court stated that there is no retrospective application of the Matrimonial Property Act and that the applicable law to claims filed before the commencement of the Act is the Married Women Property Act, 1882.

Nevertheless, the court clarified that there is nothing that bars the provisions of Article 45(3) of the Constitution from being applied retrospectively.

The ruling provides clarity on the criteria for determining the distribution of matrimonial property in cases filed before the Matrimonial Property Act came into effect.