Supreme Court on Matrimonial Property Rights

Disclaimer: This Article does not form part of a Legal Opinion and is purely informative.

Kenya’s legal history has seen substantial amendments to the idea of matrimonial property and the rights that accompany it. Customary law dominated the partition of marital property prior to the colonial era, which inevitably meant that wives had no legal claim to their husbands’ property. It was during the colonial era, through the enactment of the Matrimonial Causes Act (Cap. 152), that matrimonial property was recognized, in addition to the equitable division of property in the case of a divorce. With the 2010 Kenyan Constitution, Article 45 (3) ensures that everyone has equal rights when a marriage is dissolved.

In 2013, the Matrimonial Property Act was a significant legal development that sought to provide clear rules for what belongs in a marriage’s matrimonial estate and to provide a legal framework for the ownership, management and distribution of matrimonial property that would apply to all types of unions.

The Court’s Ruling in JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae) [2023] KESC 4 (KLR)

The parties wed in 1990 in accordance with Abagusii customary law, according to the case’s brief facts. They were given a marriage certificate on August 30, 1995, in accordance with the now-repealed Marriage Act (Cap. 150) Laws of Kenya. They had two children throughout the course of their marriage. The parties also bought a number of properties, and the Respondent stated that they built rental units on one of the sites after successfully applying for a loan of KES 200,000, which she then transferred to the Appellant to finish the units’ construction. When the couple’s marriage irretrievably fell apart in 2008, the husband filed for divorce, which led to the beginning of the matrimonial property division process.

The High Court first heard the case, and there, the judge awarded the wife a 30% portion of the land and a 20% share of the built-up rental units. Dissatisfied with the ruling, the wife moved to the Court of Appeal, where the court concluded that she had gained a beneficial interest in the property and divided it 50:50 while citing legal developments in the area. The husband appealed to the Supreme Court, being dissatisfied with the Court of Appeal’s ruling, where a number of issues were canvassed. Whether Article 45(3) of the Constitution automatically mandates that matrimonial property be distributed at a 50:50 ratio upon dissolution was a crucial matter that the Court sought to resolve.

Thus, the Supreme Court was asked to interpret this clause by defining a divorced couple’s “equal rights.” The Supreme Court ruled that the apportionment and division of matrimonial property may only occur when parties fulfill their requirement of establishing what they are entitled to by means of contribution. This ruling established the guiding basis for assessing whether Article 45 (3) bestowed proprietary rights. According to the court, neither the execution of domestic responsibilities nor the fact that the woman was frugal with her spending on housekeeping entitles a spouse to a beneficial interest in the property registered in the name of the other spouse. The Court decided that achieving equality during and after marriage does not entail splitting up assets mathematically into equal halves.

Due to the variety of situations that matrimonial causes present, they are handled on a case-by-case basis. In the infamous UK case Gissing v. Gissing, the common law maxim “equality is equity”—discussed in the context of distribution of matrimonial property—made reference to the concepts of fairness and equality. The assessment took into account the indirect contribution toward property acquisition, which can be difficult to verify and sometimes requires a lot of effort. Such assistance includes necessary household work, such as childcare, housekeeping, and other shared family tasks. However, following Gissing, the Court noted in paragraph 95 that it is not “helpful or right for the court to feel obliged to award either one-half or nothing” when it is obvious “that the contributing spouse has contributed about one-quarter.”

The Supreme Court held that even though Article 45 (3) deals with the equality of spouses’ fundamental rights, the provision does not imply that spouses are automatically entitled to a fifty percent (50%) share by virtue of being married. Instead, the Court of Appeal’s decision was upheld, and the property in question was divided 50:50.

In order to ensure that each spouse in a marriage receives a fair share of the marital estate based on their contribution, the courts must follow certain rules.


The Supreme Court emphasizes the importance of equitable distribution of marital assets post-divorce, considering each spouse’s contributions to property acquisition and growth. Acknowledging modest contributions is crucial, regardless of their equal or different nature. Therefore, by ensuring that the division of marital property is fair and equitable, the ruling assists in the protection of the rights of spouses to such property.

As a result, it highlights the necessity for spouses to demonstrate their involvement in the acquisition of marital property, which helps the Courts calculate the share that will be accessible to each party at distribution. The Supreme Court’s ruling can be accessed here:

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