Nairobi High Court: Spouses Must Prove Contribution to Claim Matrimonial Property

The Kenyan High Court has determined that divorcing spouses must provide evidence of their contribution to matrimonial property, even when the property is registered jointly. 

The decision, delivered by Justice Reuben Nyambati Nyakundi, marks a significant shift in how matrimonial property is divided in divorce cases, emphasising individual contribution over joint ownership. The ruling stems from a case involving Mr HMN and Ms EIK, a couple married in 2015 and divorced in 2022. During their marriage, they acquired a house in Bustani Gardens, Nairobi, and a parcel of land in Kajiado/Lorngosua, both registered in their joint names. 

Mr HMN petitioned the court for a division of the properties based on each spouse's contribution. Mr HMN argued that he solely financed the Bustani Gardens house through his employment income and a mortgage he obtained in 2021. He presented bank documents showing deposits for the purchase price, loan repayment statements, and construction expenses. 

Although Ms EIK was registered as a joint owner, Mr HMN claimed she made no financial contribution to the property. He also stated that the Kajiado land was acquired by Ms EIK and her two sisters in equal shares, with no contribution from him.

Ms EIK did not respond to the suit, and the court proceeded with the hearing unchallenged. Justice Nyakundi ruled in favour of Mr HMN, saying that “contribution of either spouse is the key consideration” in dividing matrimonial property. He emphasised that marriage does not inherently interfere with an individual's property rights. The court must evaluate the evidence to determine each spouse's contribution to the acquisition or development of the property.

Based on the evidence presented, Justice Nyakundi awarded Mr HMN 100% ownership of the Bustani Gardens house, as Ms EIK had not claimed it or provided evidence of contribution. The Kajiado land, however, was deemed not to be matrimonial property as it was owned by Ms EIK and her sisters. This ruling clarifies the application of Article 45(3) of the Constitution, which guarantees equal rights to spouses during and after marriage. 

Justice Nyakundi emphasised that this does not automatically entitle spouses to an equal division of property. Section 7 of the Matrimonial Property Act dictates that ownership is determined by each spouse’s contribution.