DAYSTAR UNIVERSITY SCHOOL OF LAW DIVISION OF MATRIMONIAL PROPERTY IN KENYA: RECONCILING THE SUPREME COURT DECISION IN OGENTOTO V OGENTOTO WITH ARTICLES 28 AND 45 OF THE CONSTITUTION OF KENYA, 2010. BERNARD SHIAUNDA AETE ADM NO 20-0033 A Dissertation Submitted in Partial Fulfilment of the Requirements for the Award of the Bachelor of Law (LLB) Degree, Daystar University 2023 TABLE OF CONTENTS LIST OF STATUTES v LIST OF CASES vi LIST OF ABBREVIATIONS vii CHAPTER 1 1 BACKGROUND TO THE STUDY 1 1. Introduction 1 1.2 History of the Matrimonial Property Regime in Kenya 1 1.2.1 Pre-2010 1 1.2.1.1 Pre-2010 Judicial Approaches to Division of Matrimonial Property in Kenya 3 1.2.2 Post 2010 4 1.2.2.1 The Ogentoto Discourse 5 1.3 Statement of problem 8 1.4 Objectives 8 1.5 Research Questions 9 1.7 Hypothesis 9 1.8 Significance of the Study 9 1.9 Rationale for the Study 9 1.10 Scope of the study 9 1.11 Limitation of the Study 10 1.12 Justification of the Study 10 1.13 Methodology 10 1.13.1 Research Design 10 1.13.2 Data Collection and Analysis 10 1.13.3 Data Instruments 10 1.14 Theoretical Framework 10 1.14.1 Equitable Distribution Principle 11 1.14.2 Community Property Principle 12 1.15 Conclusion 12 CHAPTER 2 13 LITERATURE REVIEW 13 2.1 Introduction 13 2.2 Direct Contribution and Division of Matrimonial Property 13 2.3 ‘Indirect’ Contribution and Division of Matrimonial Property 15 2.5 Conclusion 20 CHAPTER 3 22 DIRECT CONTRIBUTION AND MATRIMONIAL PROPERTY DIVISION 22 3.1 Introduction 22 3.2 My Money is Mine but Yours is Ours my Foot! Historical Perspectives 22 3.2.1 Pre-2010 Statutory and Jurisprudential Underpinning 23 3.2.1.1 Married Women’s Property Act 1882 23 3.2.1.2 Pre-2010 Judicial Approaches to Direct Contribution 25 3.2.1.3 Whether Indirect Contributions Alone Could Suffice for Orders Under S. 17 of MWPA 27 3.3 Post-2010 Regime on Direct Contribution 28 3.3.1 Constitution of Kenya, 2010 28 3.3.2 The Matrimonial Property Act 2013 28 3.3.3 Current Land Laws 31 3.3.3 Post-2010 Judicial Considerations on Direct Contribution 32 3.4 Conclusion 33 CHAPTER 4 35 INDIRECT CONTRIBUTION AND MATRIMONIAL PROPERTY DIVISION 35 4.1 Introduction 35 4.2 The Value of Uncompensated Indirect Contribution 35 4.2.1 Statutory Recognition of Indirect Contribution 35 4.2.2 The Judicial Impasse on Indirect, Non-monetary Contribution – Pre-2010 36 4.2.3 Post-2010 Jurisprudence Not So Different 37 4.2.3 The Ogentoto Case: Demystifying the Impasse? 40 4.3 Comparative Perspectives on Indirect Contribution 44 4.3.1 South Africa 44 4.3.1.1 In Community of Property 44 4.3.1.2 Out of Community System without Accruals 45 4.3.1.3 Out of Community in Property with Accrual System 45 4.3.1.4 Prenuptial and postnuptial contracts in South Africa 46 4.3.2 European Union 46 4.3.2.1 Separate Property Systems 47 4.3.2.2 System of Deferred Community of Property 47 4.3.2.3 System of Limited Community of Property 47 4.3.2.4 Other Systems 48 4.3.2.5 Prenuptial Contracts in the European Union 48 4.4 Conclusion 48 CHAPTER 5 50 FINDINGS, ANALYSIS, CONCLUSIONS AND RECOMMENDATIONS 50 5.1 Findings 50 5.2 Analysis 56 5.3 Conclusions 57 5.4 Recommendations 59 5.4.1 Recommendation to Parliament 59 5.4.3 Implementation of Existing Norms: Harmonizing Matrimonial Property Laws in Kenya 61 BIBLIOGRAPHY 61 2 LIST OF STATUTES Hindu Marriage and Divorce Act 1960, Cap 157 Laws of Kenya (repealed). Marriage Act 2014. Married Women's Property Act 1882 (repealed). Matrimonial Causes Act 1941, Cap 152 Laws of Kenya. Matrimonial Property Act No. 49 of 2013. Registered Land Act 2010, Cap 300, Law of Kenya (repealed). Constitution of Kenya, 2010. Land Act, 2012. Land Registration Act, 2012. Law of Succession Act, Cap 160 Laws of Kenya. LIST OF CASES Beatrice Wanjiru Kimani v Evanson Kimani Njoroge [1998] eKLR. Burns v Burns [1984] 1 All ER 244. Echaria v Echaria [2007] eKLR. Essa v Essa (1995) LLR 384 CAK. Gissing v Gissing (1971) AC 886. JOO v MBO (2023) KESC 4 (KLR). Joseph Ombogi Ogentoto v Martha Ogentoto [2019] eKLR. Karanja v Karanja (1976) KLR 307. Kivuitu v Kivuitu (1991) KLR 248. Lambert v Lambert [2003] 4 All ER 342. Muthembwa v Muthembwa (2002) 1 EA 186. National Provincial Bank v Ainsworth [1965] 2 All E.R. 472. Pettit v Pettit (1969) 2 All ER 385; (1976) KLR 307. Tabitha Wangeci Nderitu v Simon Nderitu Kariuki [1998] eKLR. White v White [2000] UKHL 54. William Musembi v Moi Education Centre [2021] eKLR. LIST OF ABBREVIATIONS CEDAW Convention on the Elimination of All Forms of Discrimination against Women FIDA-K Federation of Women Lawyers - Kenya ICCPR International Covenant on Civil and Political Rights ICESR International Covenant on Economic, Social and Cultural Rights KLA Kenya Land Alliance MWPA Married Women's Property Act 1882 UDHR Universal Declaration of Human Rights CHAPTER 1 BACKGROUND TO THE STUDY 1. Introduction Property plays a vital role in society. It represents a significant aspect of a couple's shared life and often reflects their hard work, investments, and aspirations. The division of property during divorce or separation is a critical issue that not only affects the individuals involved but also has broader implications for societal well-being and gender equality. Proper management and fair distribution of matrimonial property are essential to ensure justice, economic stability, and social progress for all parties involved. 1.2 History of the Matrimonial Property Regime in Kenya 1.2.1 Pre-2010 In Kenya during the colonial and postcolonial periods, there was no clear statute outlining the principles for dividing matrimonial property in the event of divorce.[footnoteRef:0] As a result, courts were forced to establish guidelines based on the Married Women's Property Act 1882 (MWPA), a general statute from England that was applicable in Kenya.[footnoteRef:1] The MWPA, which took precedence over customary law according to the Judicature Act, gave the court the authority to determine each party's share of matrimonial property in a divorce.[footnoteRef:2] The court had regards to both direct and indirect financial contributions made by either party towards acquiring the property.[footnoteRef:3] Direct contributions were straightforward, while indirect contributions, such as a wife's contributions in maintaining the home and caring for the children, were more challenging to prove. However, the court acknowledged the importance of these indirect contributions and took them into account.[footnoteRef:4] [0: Fareda Banda, Women, Law and Human Rights (Bloomsbury Publishing 2005).] [1: Eugene Cotran, The Law of Marriage and Divorce (Vol 1, Sweet and Maxwell, 1968); Republic of Kenya, Report of the Commission on the Law of Marriage and Divorce (Kenya Law, August 1968) 53 accessed 27 July 2023.] [2: ibid.] [3: Jeanmarie Fenrich, Paolo Galizzi and Tracy E Higgins, The Future of African Customary Law (Cambridge University Press 2011).] [4: Laurence Juma, Kileleshwa: A Tale of Love, Betrayal and Corruption in Kenya (African Books Collective 2010).] Under common law, women were considered ‘feme covert’ and were seen as subordinate to men.[footnoteRef:5] This meant that upon marriage, a wife's property and legal identity was surrendered to her husband and she was under his influence and protection. Any personal property she acquired during the marriage, unless specified as separate property, would go to her partner.[footnoteRef:6] Women often had restricted inheritance rights, with males typically receiving real property like land, whereas women were limited to getting personal property like clothing, ornaments, and domestic items.[footnoteRef:7] In the absence of a will, the oldest son would inherit all real property under the English law of primogeniture, with the daughter only inheriting real property if there were no male heirs. This law remained in place in Britain until 1925.[footnoteRef:8] [5: Freyda Konno Owino, ‘The Division of Matrimonial Property in Kenya: A Feminist Approach’ (LLB Dissertation, Strathmore University) 15 accessed 27 July 2023.] [6: ibid.] [7: ibid; Hiam Brinjikji, ‘Property Rights of Women in Nineteenth Century England’ (University of Michigan 2011) accessed 27 July 2023.] [8: Owino (n 7) 16.] The MWPA marked an important change in the legal status of married women in England. Before this Act, married women were considered as ‘feme covert,’ meaning that they were legally subordinated to their husbands and their legal existence was suspended during the marriage.[footnoteRef:9] The common law doctrine of coverture gave the husband the control over all property and earnings of the wife and restricted her from making contracts or incurring debts without her husband's approval. However, with the passing of the Married Women’s Property Act, married women gained the right to ownership, purchase, and sale of their own separate property.[footnoteRef:10] They also gained the right to prosecute and be prosecuted in a court of law, and any damages or debts incurred by the wife would be her own responsibility. The Act also allowed married women to hold stocks in their own names and made them subject to bankruptcy laws in case of any outside trade they owned.[footnoteRef:11] In essence, the Married Women’s Property Act of 1882[footnoteRef:12] marked a significant step towards granting married women more autonomy and legal rights, which helped to change the common law doctrine of coverture and provide married women with a more equal standing under the law. Before Kenya gained independence, customary law of the various tribes was applicable in individual law issues such as marriage and bequest.[footnoteRef:13] Courts also used the Matrimonial Causes Act[footnoteRef:14] to determine the sharing of marital property.[footnoteRef:15] However, during this time, women faced discrimination and were often treated unfairly. [9: ibid.] [10: Rachel Ablow, ‘“One Flesh,” One Person, and the 1870 Married Women’s Property Act’ (BRANCH: Britain, May 2012) accessed 27 July 2023.] [11: Owino (n 7) 16; Bridget Hill, Women, Work and Sexual Politics in Eighteenth Century England (2016).] [12: ibid.] [13: Katarina Juma and Charles Kanjama, Family Law Digest: Matrimonial Property (LawAfrica Publishing Ltd 2009).] [14: Matrimonial Causes Act 1941.] [15: Peter Onyango Onyoyo, African Customary Law: An Introduction (LawAfrica Publishing (K) Limited 2013).] The first attempts at improving family laws in Kenya took place after independence, where the first president of Kenya created two Commissions to review the law on marriage and divorce, and the succession law.[footnoteRef:16] The goal was to create a solitary, nationwide law for every of these matters, rather than relying on the fragmented and discriminatory legal regimes that were based on racial classifications.[footnoteRef:17] The Commissions aimed to ensure equivalent rights for women and men in matrimonial property and succession. However, attempts to give legal effect to the Commission's suggested marriage laws were defeated by Parliament, due to opposition to the provisions that supposedly violated native customs and gave too many rights to women.[footnoteRef:18] [16: Nigel Lowe and Gillian Douglas, Bromley’s Family Law (11th edn, Oxford University Press 2015).] [17: Juliana Nnoko-Mewanu, ‘Once You Get Out, You Lose Everything’: Women and Matrimonial Property Rights in Kenya (Human Rights Watch 2020); Ojima Abalaka, Once You Get Out, You Lose Everything: Women and Matrimonial Property Rights in Kenya (Human Rights Watch, 25 June 2020) accessed 24 July 2023.] [18: Susan Deller Ross, Women’s Human Rights the International and Comparative Law Casebook (University of Pennsylvania Press 2008).] 1.2.1.1 Pre-2010 Judicial Approaches to Division of Matrimonial Property in Kenya In the case of Pettitt v Pettitt,[footnoteRef:19] the House of Lords ruled that Section 17 of the Married Women's Property Act did not give judges the authority to transfer ownership of property from one spouse to the other. In Gissing v Gissing,[footnoteRef:20] the court determined that it cannot impose arrangements that the parties never agreed to, nor can it assign intentions that the parties never had. Although these cases have been superseded by new legislation in the United Kingdom, they are still considered as legal precedent in Kenya.[footnoteRef:21] Nevertheless, conflicting understandings of these cases by local courts have caused confusion in the legal understanding of marital property law. [19: (1969) 2 All ER 385.] [20: (1971) AC 886.] [21: ibid.] In the case of Karanja v Karanja,[footnoteRef:22] the court ruled that where a property is jointly bought by both parties and registered in the name of the husband with the wife's consent, it can be assumed that she has a resulting trust in the property.[footnoteRef:23] This verdict was later upheld in Kivuitu v Kivuitu.[footnoteRef:24] The court established the principle that property bought during the marriage should be presumed to be held equally by both spouses if it is registered jointly. Furthermore, in his remarks, Judge Omolo went even on to assume that all wives have some stake in the property bought and registered under her husband's name alone, because of her indirect contributions as a wife.[footnoteRef:25] [22: (1976) KLR 307.] [23: Owino (n 7) 18.] [24: (1991) KLR 248.] [25: Owino (n 7) 18.] In the case of Essa,[footnoteRef:26] the court referenced the Pettit case and seemingly approved several parts of the judgment that stated that the court could not handover property ownership from one partner to the other under Section 17 of the Married Women's Property Act 1882. However, the court then surprisingly gave the complainant a 50% share in a property that was registered solely under the respondent's name. This created a contradiction in the court’s ruling. The court upheld the remarks of Omolo JA in Kivuitu and ruled that where a clear agreement between the spouses is non-existent, the court should not take into account the individual contributions of each party, but instead should divide the property equally.[footnoteRef:27] As a result, the appeals court raised the complainant's share in the disputed property, which was registered under the sole name of the departed, from 30% to 50%, considering the germane property laws or making a distinction between properties held individually and those held jointly.[footnoteRef:28] [26: Essa v Essa (1995) LLR 384 CAK.] [27: Owino (n 7) 19.] [28: ibid.] 1.2.2 Post 2010 In recent years, Kenya has re-engineered its laws regarding matrimonial property, including the repeal of the Matrimonial Causes Act 1942 and the Married Women Property Act 1882. The Constitution of Kenya, 2010 guarantees equal rights and protections regardless of gender in all aspects of life, including matrimonial property. Therefore, it was not until the promulgation of the Constitution of Kenya, 2010 that women were given hope for equal rights in matrimonial property.[footnoteRef:29] The Constitution guarantees equal rights for both parties in a marriage, and mandated Parliament to enact legislation to protect matrimonial property.[footnoteRef:30] In particular, Article 45(3) of the Constitution grants similar rights to both parties in marital relations, from the time of the wedding ceremony to the dissolution of the marriage. This clause aims to combat the discrimination and oppression of women that often occurred after a marriage has ended and during the marriage itself. The provision embodies the feminist principles of equality and liberation for women, working to reverse the patriarchal norms that kept women subservient. Additionally, Article 68(c)(iii) of the Constitution mandates the Legislature to create laws that guides the acknowledgment and defence of matrimonial property, predominantly the matrimonial home, during the marriage and after its end. [29: Isabel Moodley, ‘A Comparative Juridical Analysis of the Constitutional Advancement of Women’s Matrimonial Property Rights in Swaziland and Kenya’ (2021) 3(1) Comparative and International Law Journal of Southern Africa.] [30: Patrick Loch Otieno Lumumba and Kiwinda Mbondenyi, The Constitution of Kenya: Contemporary Readings (African Books Collective 2011).] In line with this, the Matrimonial Property Act, 2013 was enacted to provide for the rights and responsibilities of spouses in relation to matrimonial property and related aspects. The Act was a result of the long struggle for rights of women in divorce and marriage. The Act describes contribution as including non-monetary contributions, such as domestic work and management of the matrimonial home, childcare, farm work and companionship. It therefore acknowledges the non-monetary contributions of women to matrimonial property and requires that property be shared based on each spouse's contribution.[footnoteRef:31] Sections 6 of the Act defines matrimonial property while section 7 vests ownership of matrimonial property in the spouses according to their contribution to the acquisition of the property. In V W N v. F N,[footnoteRef:32] the Court of Appeal while rejecting an application for leave to appeal to the Supreme Court for determination of whether Article 45(3) of the Constitution applied in matters filed before the promulgation of the Constitution and not yet determined, emphasised that the provisions of section 2, 6 and 7 of the Matrimonial Property Act 2013 breathe life into the rights enshrined in Article 45(3) of the Constitution and that both monetary and non-monetary contribution ought to be considered in determining contribution. The 2013 Act is a testament to the feminist influence on the law, as it pursues the empowerment of women and reverses male-controlled societal norms. [31: Matrimonial Property Act 2013, s 2.] [32: [2014] eKLR.] Other important, but general, provisions may be found under the Land Act, 2012 and the Land Registration Act, 2012. 1.2.2.1 The Ogentoto Discourse Article 45(3) of the Constitution of Kenya, 2010 states that both partners in matrimony have equal rights at the point of the marriage, throughout the marriage, and during its dissolution. This provision introduces equality into the core of the personal relationship between spouses, but the specifics are still up for debate. One ongoing issue is the degree to which Article 45(3) applies to property claims when a marriage ends. The debate surrounding the interpretation of Art. 45(3), which mandates equal rights for both participants in a marriage,[footnoteRef:33] highlights the persistence of patriarchal structures.[footnoteRef:34] The unequal distribution of immovable property, with men holding a disproportionate share, has historical roots and is perpetuated by current barriers that prevent women from acquiring resources to own property.[footnoteRef:35] Additionally, the gender divide in household labour and monetary contributions remains prevalent, leading to a structural bias in the financial contributions of the male spouse towards the purchase of property during a marriage.[footnoteRef:36] Traditional customary laws often governed property ownership and distribution in Kenya, and these laws were frequently biased against women. For instance, some customary laws prioritize male inheritance, denying women their rightful share of property upon divorce or the death of a spouse. This can be seen from the case of Essa v Essa.[footnoteRef:37] This is why the provision in Article 45(3), which calls for equivalent rights for both parties in a matrimonial relationship at the time of its formation, during its existence, and at its dissolution, is of utmost importance. [33: Fred Nyagaka and Callen Nyamwange, ‘COVID-19 Effects on Gender Equality and the Application of the Matrimonial Property Act of 2013 Among the Gusii People of Kisii County, Kenya’ (2021) 4(2) International Journal of Research and Scholarly Communication 21.] [34: Macharia Mukono, ‘Divorce Law in Kenya: In Support of a Uniform No-Fault Regime’ (2022) 7 Strathmore Law Review 161.] [35: Moodley (n 37).] [36: Nancy Baraza, ‘An Analysis of Gender Equality Jurisprudence by Kenyan Courts Since the Enactment of the 2010 Constitution’ in J Jarpa Dawuni, Gender, Judging and the Courts in Africa (Routledge 2021) 25.] [37: [1995] LLR 384 CAK.] However, its implementation has been a subject of much debate, particularly with regards to the distribution of property once marriage is dissolved. The controversy surrounding this issue is rooted in the patriarchal structures of society, where men hold a disproportionate amount of immovable property, largely due to historical and current barriers preventing women from acquiring such resources.[footnoteRef:38] The gendered division of labour in households and its impact on financial earnings also contributes to the unequal distribution of property within a marriage.[footnoteRef:39] If the division of property at the end of a marriage only takes into account legal ownership, it perpetuates the existing gender inequalities and creates a vicious cycle of disadvantage for women. So, how can the concept of ‘equality within marriage’ be realized? One solution, practiced in some countries, is the ‘community of property’ system which involves dividing the marital property equally between the partners upon the end of the marriage. However, this method also poses some difficulties in defining what constitutes marital property.[footnoteRef:40] On the other hand, some approaches only take into account the financial contributions made by each partner in determining their legal interest in the marital property. There is also a range of other models that exist, such as considering non-monetary contributions like care work, domestic work, and emotional labour.[footnoteRef:41] Another approach could be to have a default 50-50 split, but with exceptions in cases where it is unfair.[footnoteRef:42] The length of the relationship could also be a factor considered in some models. [38: Miracle Mudeyi, ‘For Better for Worse, Till the Courts Do Us Part: Interpretation of Article 45 (3) of the Constitution of Kenya in Matrimonial Property Causes? An imbroglio?’ (2022) SSRN 100 accessed 24 July 2023.] [39: Martha Gayoye, ‘Why Women Judges Really Matter: The Impact of Women Judges on Property Law Outcomes in Kenya’ (2022) 31(1) Social & Legal Studies 72-98.] [40: Mudeyi (n 50).] [41: Moodley (n 37).] [42: ibid.] The Supreme Court of Kenya, in the case of Ogentoto, attempted to balance the conflicting provisions regarding matrimonial property rights in Kenya.[footnoteRef:43] The case was complicated as it was filed before the coming into being of the Matrimonial Property Act 2013 and there was a question of which Act would govern the dispute. The union between the appellant and the respondent in this case had been formalised under the repealed Marriage Act.[footnoteRef:44] The union irrevocably broke down on 15th October 2015 leading to court proceedings on the division of their matrimonial property located in Tassia. One of the issues emerging was the retrospectivity of the Matrimonial Property Act, 2013 in which the Supreme Court held that the Act was applicable. The Court also held that the provisions of the Constitution 2010, specifically Article 45(3), which stipulates equal rights for parties during and at the dissolution of a marriage, was equally applicable. The Court was then faced with the challenge of interpreting the phrase ‘equal rights at the dissolution of a marriage.’[footnoteRef:45] The Court held that the constitutional provision of equal rights in the dissolution of marriage must be applied in a manner that takes into account both monetary and non-monetary assistances made by each spouse during the course of the marriage.[footnoteRef:46] The Court emphasized that the approach should be flexible and not limited to a strict 50-50 per cent split, as this may not be just or equitable in all cases. Instead, the shares of the property should be based on a case-to-case basis, considering the specific circumstances and contributions of each spouse.[footnoteRef:47] This approach allows for a more nuanced and individualized approach to the division of property, which considers the unique and specific factors of each marriage. [43: Joseph Ombogi Ogentoto v Martha Bosibori Ogentoto [2019] eKLR; Supreme Court of Kenya Petition No 11 of 2020.] [44: Cap 150 Laws of Kenya.] [45: Kelvin Kamande and Halima Ibrahim Mohamed, ‘The Divisibility of Trust Assets in Division of Matrimonial Property: A Case Study of Division of Matrimonial Property in Kenya’ (26 April 2021) SSRN accessed 24 July 2023.] [46: Peter M Juma, ‘Division of Matrimonial Property in Kenya: JOO v MBO Revisited’ (12 December 2022) SSRN accessed 24 July 2023.] [47: Stephen W Makau, ‘Division of Matrimonial Property in Accordance with Married Women Property Act 1882’ (11 August 2022) SSRN accessed 24 July 2023.] It is important to note that while the Supreme Court's decision in the Ogentoto[footnoteRef:48] case may reflect the limits of transformative constitutionalism when it comes to the private sphere, this decision is only one piece of the larger puzzle. The operationalization of the Matrimonial Property Act, 2013 and the constitutional guarantee of equal rights within marriage indicate a shift towards addressing the gendered inequalities that structure marriage and property rights.[footnoteRef:49] The Court's hesitation to completely alter the legal regime of property may be a result of the complex and nuanced nature of the issue, as well as the need for a balance between protecting property rights and promoting equality.[footnoteRef:50] This research is intended at reconciling the court’s judgment with Article 45(3) of the Constitution 2010. [48: [2019] eKLR.] [49: ibid 202.] [50: Mukono (n 45).] 1.3 Statement of problem Whereas the Constitution of Kenya, 2010 provides for equality of rights before during and at the dissolution of a marriage, courts in Kenya struggle to assign proportions of property to parties in a dispute. By and large, the courts seem to lean on using the direct and indirect forms of contribution by each party to a marriage in order to arrive at a fair form of distribution. The real problem lies in ascertaining the percentage contribution of each party to a marriage. Furthermore, both the 2010 Constitution as well as the Matrimonial Property Act[footnoteRef:51] specifically addresses the different kinds of marriages recognized in Kenya and their relation to the sharing of matrimonial property, only referring to ‘marriage’ in general. Despite advances in judicial philosophy and reform that promote equality for women and men in the event of a marriage, women in Kenya still face significant challenges in obtaining matrimonial property during divorce in view of the prevailing confusion on whether to use the direct or indirect contribution in the distribution of matrimonial property. [51: No. 49 of 2013.] 1.4 Objectives The primary objective of this study is to examine the division of matrimonial property, particularly the question of ‘direct’ and ‘indirect’ contribution, in the context of Supreme Court of Kenya’s recent decision in the Ogentoto case as well as Articles 28 and 45 of the Constitution of Kenya, 2010. The specific objects of this research are: 1. to investigate the ‘direct’ and ‘indirect’ forms of contribution to property by spouses in Kenya; 2. to pinpoint the shortcomings in the application of ‘direct’ and ‘indirect’ contribution to property by spouses in the division of matrimonial property in Kenya; and 3. to identify areas where further improvements are needed in the relevant provisions of the law to ensure fair distribution of matrimonial property. 1.5 Research Questions 1. What are the different forms of ‘direct’ and ‘indirect’ contribution to matrimonial property by spouses under Kenyan law? 2. What are the shortcomings in the application of ‘direct’ and ‘indirect’ contribution by spouses in the division of matrimonial property in Kenya? 3. What adjustments should be made in the relevant provisions of the law to ensure fair distribution of matrimonial property? 1.7 Hypothesis In addressing the research questions, the study proceeds on the hypothesis that despite the enactment of the Constitution of Kenya 2010, the law on matrimonial property in Kenya is still not clear on whether courts should consider ‘direct’ or ‘indirect’ contribution by spouses in determining fair distribution of matrimonial property. It is argued that, while the enactment of the Matrimonial Property Act, 2013 sought to address this and other issues emerging from previous case law, the Act and Kenyan courts have not done much to safeguard the interest of women upon divorce. 1.8 Significance of the Study This work will benefit women and their movements, researchers, and law reform bodies in Kenya. 1.9 Rationale for the Study This study will add to the existing literature around the issue of matrimonial property in Kenya. Further, it will make suggestion for law reform where necessary to guarantee constitutionalism particularly with respect to article 28 and 45 of the Constitution of Kenya, 2010. Importantly, the research will clear confusion brought about by the recent Supreme Court judgment. 1.10 Scope of the study This study centres on the decisions of superior courts in Kenya including the recent decision of the Supreme Court in Ogentoto. 1.11 Limitation of the Study This limitation mainly relies on desktop research. For this reason, it may not be as objective as it ought to be. Besides, it may present a limited view of the issues at hand given the method of research chosen. 1.12 Justification of the Study Given the confusion that has prevailed for so long now, and especially on the interpretation of Article 45 of the Constitution of Kenya 2010, this study is necessary to clear this confusion. 1.13 Methodology 1.13.1 Research Design A descriptive research design is employed in the research, as the primary aim of the study is to conduct a descriptive analysis of division of matrimonial property in Kenya and any gaps in law. This is achieved by investigating the correlation between the dependent and independent variables. The study also employs a best-practice approach which entails analysis of matrimonial property practices in other regions, specifically South Africa, Europe, and America. 1.13.2 Data Collection and Analysis The process of gathering data will entail the utilization of existing documents and records, such as Acts of Parliament, Treaties and Conventions, Newspapers, relevant textbooks, articles, and journals. Furthermore, online sources pertaining to the specific subject matter are accessed to ensure a thorough and comprehensive analysis. The collected information will be analysed qualitatively by creating themes and organising the information along the established themes. The information will be organised in a chronological sequence in order to ascertain current and emerging jurisprudence. 1.13.3 Data Instruments The researcher makes use of a range of tools and devices to streamline the research process. These tools encompass employing a computer equipped with Microsoft Word or Excel to handle typing tasks, utilizing a mobile phone to access online sources for data collection, processing, analysis, and compilation. To ensure accessibility for other researchers, academicians, or policy makers, the final output will be printed into hard copies. 1.14 Theoretical Framework The study is mainly premised on the equitable distribution principle, which underscores the concept of fairness and justice in the division of matrimonial property as set forth in law. The other theoretical approach employed in the study, for comparative purposes, is the community property theory that finds its origin in both the civil law and common law Europe. Comment by Author: This is not a theory. Consider John Locke’s Labour theory. 1.14.1 Equitable Distribution Principle This principle provides each spouse a stake in marital property. Upon divorce, the court ought to look at a complete inventory of all property and debts acquired during the subsistence of the marriage (by either spouse), then distribute the fair market value of all this marital property equally between the parties. Yet, courts can deviate from this somewhat 50-50 split where it is just and equitable to do so. The principle of equitable distribution derives from the theory that even if one of the spouses was the only breadwinner, both spouses contributed to the marriage and success of one another as partners.[footnoteRef:52] This principle typifies the modern law of matrimonial property, which is based, largely, on the concept of partnership according to which both spouses are equal and have the same rights and liberties. This is a shift from the patriarchal principle, inherent in most African customary laws, which considers the husband as the head of the family and undervalues the role of the woman in the family. According to Sessums, partnership implies that both spouses play a critical role by contributing to the matrimonial property either directly by generating income or indirectly by providing support services such as homemaking and childbearing.[footnoteRef:53] Each spouse’s contribution creates a beneficial interest in the marital property upon dissolution. [52: Barbara Stark, ‘Burning Down the House: Toward a Theory of More Equitable Distribution’ (1988) 40 Rutgers Law Review 1173, 1181.] [53: Mark A Sessums, ‘What are Wives' Contributions Worth Upon Divorce?: Toward Fully Incorporating Partnership into Equitable Distribution’ (1989) 41(5) Florida Law Review 991 accessed 24 August 2023.] The equitable distribution principle is critical in ensuring that division of matrimonial property is fair and equitable (but not necessarily equal). While explaining the principle of fairness for individuals, Rawls acknowledges that when persons engage in a mutually advantageous cooperative venture according to rules, and therefore restrict their liberties in ways necessary to yield advantages for all, those who have submitted to these restrictions have a right to a similar acquiescence on the part of those who have benefited from their submission.[footnoteRef:54] Marriage is undoubtedly a mutually advantageous cooperative venture where both parties submit to various restrictions to maximise the benefits of that venture, which includes property acquired or earned during the venture. Thus, for fairness to prevail, each spouse ought to have a stake in the marital property according to their individual share of burdens. [54: John A Rawls, A Theory of Justice (Cambridge Massachusetts: The Belknap Press of Harvard University Press, 1971) 96.] 1.14.2 Community Property Principle This theory is premised on the common law consideration of a husband and wife as one, although the former had the right to control all the marital property.[footnoteRef:55] It traces back to continental Europe, specifically Spain and France which have civil law system. It also has some nexus to the ancient Roman society in which a family was considered the single social unit. The theory posits that, since marriage creates an economic community with a single social unit, all property acquired by one spouse during the marriage inherently belongs to this newly formed community and should thus be divided equally among both spouses. The community property principle excluded any property acquired or inherited by one spouse before the marriage or received as a gift from a third-party during marriage. This is considered separate property. [55: ‘Community Property’ accessed 17 August 2023.] 1.15 Conclusion In this Chapter, the researcher has comprehensively provided an overview of the matrimonial property regime in Kenya as a foundation for the study. Also tackled are the problem statement, research objectives, research questions, the significance of the study, justification, scope of the study, theoretical framework, and methodology. In Chapter 2 of the dissertation, the researcher reviews different literature, exploring what other researchers have established on the question of direct and indirect contribution to matrimonial property. Again, the purpose of this review is to reveal any literature gaps that this research sought to address – simply, a research gap analysis as a justification for this study. Chapter 3 focuses on evaluating the legal framework dealing with ‘direct’ contribution in the distribution of matrimonial property. Chapter 4 presents the legal framework on ‘indirect’ contribution in the distribution of matrimonial property, drawing on comparative perspectives from South Africa, the European Union, and United States of America. Chapter 5 provides the study's findings, recommendations, and conclusions regarding the topic. CHAPTER 2 LITERATURE REVIEW 2.1 Introduction Matrimonial property is not a new concept in academic research. A lot has been written on this, particularly the question of division of matrimonial property and the disadvantaged position of women – the latter being a dominant topic in most works by feminist scholars and women rights activists. However, as shown in the ensuing literature review, little has been written on the question of division of matrimonial property in Kenya in the context of the recent Supreme Court case of Joseph Ombogi Ogentoto. This notwithstanding, the study is inspired by diverse literature regarding the matrimonial property under Kenyan law. In this Chapter, the researcher reviews existing literature along the key objectives of the study with a view to identifying research gaps that this research seeks to bridge. 2.2 Direct Contribution and Division of Matrimonial Property Direct contribution is monetary in nature, involving amounts of money contributed to the acquisition, maintenance, or improvement of property during the subsistence of a marriage.[footnoteRef:56] It may include compensation payments, gifts, pensions or inheritances.[footnoteRef:57] As noted by Chan and Xu, there is a correlation between direct contribution and indirect contribution especially in marriages with children.[footnoteRef:58] In such marriages, the authors argue, the greater monetary contributions (whether direct or indirect) by the breadwinner spouse are offset by the non-monetary contribution of the other spouse in progression with the length of marriage. Thus, according to the authors, the contribution-based approach seems to be promoting only formal equality as opposed to substantive equality.[footnoteRef:59] This study, though borrowing a few viewpoints from Chan and Xu, largely provides a deep dive into the question of indirect contribution in the division of marital property, which is yet to be comprehensively demystified in research. However, as shown below, research is lacking on the issue of direct contribution in the Kenyan matrimonial property law – a gap that this study bridges. [56: Michelle Makela, ‘Financial Contributions’ (Armstrong Legal) accessed 3 September 2023.] [57: ibid.] [58: Leon Vincent Chan and Kaizhe, Richard Xu ‘Trends in the Division of Matrimonial Property Based on Contribution: An Empirical Case Study Based on the Structured Approach in Singapore’ (2022) 36 (1) International Journal of Law, Policy and the Family 28 accessed 3 September 2023.] [59: ibid.] Juma considers marriage as a partnership of equals, in which both parties contribute equally to the acquisition of assets whether directly through financial contribution or indirectly through home-keeping or childcare.[footnoteRef:60] Such assets should therefore be distributed equally. Juma proposes the inclusion of clear regulations under the Matrimonial Property Act, 2013, on valuing and ranking non-monetary contribution in relation to monetary contributions; as well as clarity on the ‘proof of contribution’ requirement. His work, though critical to this study, concentrates more on the legal framework for matrimonial property in Kenya leaving not address the questions of monetary and non-monetary contribution. [60: Peter M Juma, ‘Division of Matrimonial Property in Kenya: JOO v MBO Revisited’ (SSRN, 12 December 2022) or accessed 4 September 2023.] While discussing the impact of women judges in property law outcomes in Kenya, Gayoye notes that, prior to the 2010 Constitution, the wife’s contribution to matrimonial property, both direct and indirect, was considered and assessed as equal to that of the husband – in a 50-50 per cent split.[footnoteRef:61] Some of the cases, according to Gayoye, included Kivuitu v Kivuitu, Essa v Essa, Nderitu v Nderitu, Kamore v Kamore, Muthembwa v Muthembwa, and Mereka v Mereka. Gayoye’s research is centred on the collaborative role of women in bringing about institutional change as opposed to the focus on individual judges. This research, while focusing on direct and indirect contribution in the context of the Supreme Court decision in Ogentonto case, draws on Gayoye’s analysis of whether Echaria is still good law. Gayoye’s view regarding the jurisprudential inconsistencies in matrimonial property disputes, is that while some courts seem to uphold Echaria, others do not as some judges underscore the principle of equality of marriage under Article 45(3) of the Constitution. This, in her view, depicts a ‘two-step forward, one-step-back’ kind of jurisprudence which is inimical to the spirit behind Article 45(3) of the Constitution. [61: Martha Gayoye, ‘Why Women Judges Really Matter: The Impact of Women Judges on Property Law Outcomes in Kenya’ (2022) 31 (1) Social & Legal Studies 72, 83.] Mutiso recognizes the milestones that Kenya has achieved through the promulgation of the Constitution 2010 and the subsequent enactment of the Matrimonial Property Act, 2013.[footnoteRef:62] The latter, according to her, provides for both monetary and non-monetary contribution as key factors in the division dividing marital property, but Kenyan jurisprudence has been very inconsistent especially on the weight of non-monetary contribution.[footnoteRef:63] Mutiso’s work therefore largely focuses on the unsettled issue of non-monetary contribution than direct or monetary contribution, a gap that this study fills. [62: Benedeta Prudence Mutiso, Getting to Equal: Resolving the Judicial Impasse on the Weight of Non-Monetary Contribution in Kenya's Marital Asset Division’ (2019) 26(1) Michigan Journal of Gender & Law 121 accessed 24 August 2023.] [63: ibid.] A study by Nyagaka and Nyamwange on the application of the Matrimonial Property Act,2013, among the Gusii of Kenya, points out that matrimonial property ought to be registered and where the same is owned jointly (especially where both spouses have contributed directly), it should be registered as such. Their study recommends the need to educate women on the matrimonial property but does not delve deeper into the complex questions of direct or indirect contribution. From the foregoing review, there is a clear research gap on the issue of direct contribution in the division of matrimonial property in Kenya. Most of the literature tends to focus on the complex question of non-monetary contribution, which is the subject of the ensuing review section. This study, partly inspired by the above literature, provides a deep dive into the questions of direct and indirect contribution in the division of marital property, which are yet to be comprehensively demystified in research. 2.3 ‘Indirect’ Contribution and Division of Matrimonial Property The question of indirect or non-monetary contribution in matrimonial property division has had little consideration in literature. To a large extent, the question has been explored together with direct or monetary contribution especially in the context of the inconsistent interpretation of the law. This section underscores the reasoning by Nadarajan, Karim and Radzi that a spouse’s contribution to another’s human capital during marriage that increases the latter’s future income stream ought to be recognised for fairness to prevail in the distribution of marital property. [footnoteRef:64] Thus, if the spouse’s direct contribution would not have been made except for the supporting spouse, a fairness claim is established and the supporting spouse ought to be awarded. However, the authors’ article largely focuses on the consideration of human capital in the distribution of marital assets, arguing that the value of human capital is premised on its earning capacity or future returns than current returns.[footnoteRef:65] [64: Ravindran Nadarajan, Ridoan Karim and Nor Azim Ahmad Radzi, ‘Analysis on International Case Law of Earning Capacity in Distribution of Matrimonial Assets After a Divorce’ (2018) 15(4) International Journal of Business, Economics and Law 31.] [65: ibid.] Mutiso recognises the contradictory jurisprudence in Kenya on the weight of non-monetary contribution to matrimonial property.[footnoteRef:66] In her view, lack of a guidance on the centrality of non-monetary contribution in divorce proceedings has left potential litigants, particularly women, to fight for their proprietary rights in court or suffer severe post-divorce economic consequences. The author faults Kenyan courts for failing to balance the weight of indirect and direct (monetary) contributions due to legislative inadequacies and apparent biases.[footnoteRef:67] This, in her view, is inimical to the principle of equality as enshrined in Article 45(3) of the Constitution and international human rights laws such as CEDAW. The author underscores the need for matrimonial property law reform in Kenya to further the overriding objective of fairer divorce outcomes and gender equality. In addition, courts should begin analysing division of marital property from an assumption that each spouse is entitled to 50% of the property – a view that this research deviates from based on the partnership principle that underlies the equitable distribution theory. [66: Benedeta Prudence Mutiso, Getting to Equal: Resolving the Judicial Impasse on the Weight of Non-Monetary Contribution in Kenya's Marital Asset Division’ (2019) 26(1) Michigan Journal of Gender & Law 121 accessed 24 August 2023.] [67: ibid 173.] Although the promulgation of the Constitution of Kenya, 2010 was considered a panacea to the decades of bloodshed and inequities, its interpretation by courts, according to Juma, has yielded inconsistent approaches in the assessment of contribution.[footnoteRef:68] While some judges consider unpaid care and domestic work performed by women, others do not, and there is no clear guidance for the lower courts as to indirect contribution. The Matrimonial Property Act, 2013 makes it clear that both monetary and non-monetary contributions should be considered in the division of marital property but leaves room for interpretation as to what constitutes ‘proof of contribution’ and how this affects property division. This impasse negatively affects women; and, according Juma, it calls for clarity in law on the phrase ‘proof of contribution’ and how to rank and value non-monetary contribution in relation to monetary contributions.[footnoteRef:69] This research advances this reasoning with specific focus on the legal uncertainties around indirect contribution in matrimonial property division. [68: Peter M Juma, ‘Division of Matrimonial Property in Kenya: Joo v Mbo Revisited’ (2022) SSRN accessed 24 August 2023.] [69: ibid.] On his part, Makau contends that women have been excluded from participating fully in the legislative and implementation processes that govern the division of matrimonial property and have been marginalized from development processes alongside men.[footnoteRef:70] He points to cases such as Echaria v Echaria and Muthembwa v Muthembwa as examples where male-dominated decision-making led to the oppression of women, who were required to provide evidence of their contributions to the matrimonial property. Makau therefore proposes several recommendations that in his view will effectively address the gendered question in matrimonial property division. These include adopting practical methods for dividing matrimonial property, promoting women's involvement in policymaking, and eliminating discriminatory societal attitudes and negative customary laws. Makau’s work is instrumental in this research although the reason behind the so-called ‘male-dominated decision making, as the researcher argues hereunder, is based on the lack of proper legislative guidance on indirect or ‘non-monetary’ contribution as provided for under section 7 of the Matrimonial Property Act, 2013. [70: Moodley (n 37).] Oyuga and Ikinu criticize the Matrimonial Property Act, 2013 for its unsatisfactory nature and highlight how the Kenyan Constitution recognizes equality between parties in a marriage.[footnoteRef:71] The authors of the report argue that Section 7 of the Matrimonial Property Act goes against the constitutional guarantees of equality by placing the burden of proof on the individual in determining non-monetary contributions, particularly contributions to the acquisition of matrimonial properties.[footnoteRef:72] This can be challenging for women who have contributed to such properties without concrete evidence, which is often the case. Before Kenya's adoption of its Constitution in 2010, property distribution in cases of separation or divorce was based on the proportion of a spouse's monetary contribution to that property, which was unfair to women who primarily provided farm labour and childcare. Even with the post-2010 regime, the authors argue that this discriminatory concept still exists, leaving spouses who have contributed but lack evidence with nothing.[footnoteRef:73] [71: Mitchelle Oyuga and Nancy Ikinu, ‘Land as Matrimonial Property in Kenya: Demystifying the Concept of Contribution to Acquisition of Land As Matrimonial Property’ (Paper prepared for presentation at the World Bank Conference on Land and Poverty, The World Bank - Washington DC, March 20-24, 2017) 2.] [72: Baraza (n 24).] [73: Moodley (n 37).] Critics argue that the provision mandating parties to seek the division of matrimonial property only after divorce or separation is problematic because it may prevent women who wish to preserve their marriages from obtaining a fair share of property.[footnoteRef:74] The research by Oyuga and Ikinu provides evidence to support this claim, as it highlights the various challenges women may face when trying to secure their portion of matrimonial property,[footnoteRef:75] such as power imbalances within the household and limited knowledge of their rights.[footnoteRef:76] Moreover, some women may prioritize maintaining their marriages over pursuing divorce solely for financial gain, as demonstrated by court rulings. Certain provisions of the Matrimonial Property Act 2013 have been criticized by these critics, who refer to a petition filed by FIDA-K in 2016. The petition alleged that these provisions violate constitutional rights and freedoms, including sections 6 (1) (c) and 7.[footnoteRef:77] FIDA-K stated that it received multiple complaints from its network of lawyers and female clients regarding the constitutionality of these provisions. Specifically, section 6 (1) (c) was argued to unfairly disadvantage one spouse when property is registered solely in the name of the other, which is a common scenario for married women in Kenya who have contributed to the acquisition of matrimonial property but do not hold joint ownership.[footnoteRef:78] [74: Makau (n 58).] [75: Oyuga and Ikinu (n 79).] [76: Juliana Nnoko-Mewanu, Once You Get Out, You Lose Everything: Women and Matrimonial Property Rights in Kenya (Human Rights Watch 2020) accessed 24 July 2023.] [77: Baraza (n 24) 23.] [78: Nnoko-Mewanu (n 77).] In the FIDA petition, the petitioner contended in their petition that Section 7 of the Matrimonial Property Act had the potential to infringe on the basic rights of numerous married women to own land and property.[footnoteRef:79] This was because, in many cases, these women's names were not listed on ownership documents, and the property in question might not be classified as matrimonial property, which contradicts Articles 40, 60, and 68 of the Constitution. Moreover, the provision requiring division of property based on each spouse's contribution towards its acquisition was deemed inconsistent with Article 45(3) of the Constitution, which enshrines the principle of equal rights for both spouses before, during, and after marriage dissolution.[footnoteRef:80] FIDA Kenya pinpointed that this particular provision violates the property ownership rights of married women after a marriage is dissolved, as they are required to prove their contribution towards the property acquisition, which can be a challenging task.[footnoteRef:81] Although non-monetary contributions are also considered as part of the definition of contribution, the majority of the property will still be owned by the spouse who has made monetary contributions and can provide evidence of the same.[footnoteRef:82] This is in contrast to Section 10(2) of the Matrimonial Property Act, 2013 which states that any reasonably and justifiably incurred liability shall be equally shared between spouses if the property becomes matrimonial property, unless agreed otherwise. The authors of the report emphasized that if liabilities are to be shared equally, then assets must also be divided equally when a marriage comes to an end.[footnoteRef:83] [79: Mukono (n 45).] [80: Moodley (n 37)] [81: Gayoye (n 51).] [82: Baraza (n 24).] [83: Moodley (n 37).] According to their argument, the Matrimonial Property Act, 2013 is biased towards women, as highlighted by section 7’s emphasis on contribution in dividing matrimonial property and section 10(3)'s disallowance of equal sharing of liabilities.[footnoteRef:84] The authors contend that these provisions contravene the Constitution and several international treaties and conventions, including the Maputo Protocol, the Banjul Charter, the International Covenant on Civil and Political Rights (ICCPR), and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), all of which are part of Kenyan law under Article 2(5). They call on legislators to ensure that the enabling legislation aligns with the Constitution and recommend a re-examination of the Matrimonial Property Act 2013 due to its inconsistencies with the supreme law and international treaties and conventions.[footnoteRef:85] [84: Makau (n 58).] [85: Nnoko-Mewanu (n 77).] The core of this study is based primarily on the principle of partnership and the Constitution of Kenya 2010, which safeguards the rights and interests of individuals in relation to the ownership of property before, during, and after marriage, and outlines the distribution of such property in case of a divorce.[footnoteRef:86] The Constitution explicitly recognizes the family as the fundamental unit of society and affirms its entitlement to recognition, economic and social rights, and protection from the government.[footnoteRef:87] It also ensures equal rights to both parties in a marriage, both during the marriage and upon its dissolution. The Parliament has the power to pass laws governing the recognition and protection of matrimonial property, especially the matrimonial home, during and after the end of a marriage. However, according to Dowuona-Hammond, such laws must be based on the principle of equal partnership, recognising the actual contribution of each spouse to the welfare of the home, particularly the unpaid household services of the wife during the subsistence of the marriage.[footnoteRef:88] As Dowuona-Hammond further opines, which this study aligns with, it is time to recognise a wife’s non-monetary role in the form of childcare, housework and unpaid labour in the family business as substantial contribution guaranteeing her a beneficial interest in the matrimonial property.[footnoteRef:89] However, although the Matrimonial Property Act, 2013 recognises both monetary and non-monetary contribution in the division of matrimonial property, the uncertainty around non-monetary contribution leaves the issue almost entirely to the unfettered discretion of the court, thus making it difficult to protect the property rights of wives.According to research conducted by Human Rights Watch, women in Kenya are unsure about how their non-monetary contributions to their marriages will be valued and whether they have a right to a share of their marital property.[footnoteRef:90] They also have concerns about the financial and time investment required to pursue a claim for equitable distribution. Judicial officials and lawyers often experience confusion regarding which court has the authority to handle cases involving matrimonial property, exacerbating the existing problems and resulting in postponements and extra expenses associated with filing numerous and distinct petitions for divorce, the allocation of matrimonial property, and other legal actions concerning maintenance and custody.[footnoteRef:91] Despite the challenges faced, Kenya has been acknowledged by other authors for the significant progress it has made in recognizing equality between men and women, and addressing property ownership disparities in the past decade. Advocates' efforts to uphold women's rights in both law and practice are reflected in the country's constitution and laws, which now align more closely with global standards on equality and non-discrimination. [86: Mukono (n 45).] [87: ibid.] [88: C Dowuona-Hammond, ‘Ensuring Equity in the Distribution of Matrimonial Property Upon Divorce: Preparing the Path for Legislation’ (2005) University of Botswana Law Journal 125 accessed 3 September 2023.] [89: ibid 126.] [90: Ojima Abalaka, Once You Get Out, You Lose Everything: Women and Matrimonial Property Rights in Kenya (Human Rights Watch, 25 June 2020) accessed 24 July 2023.] [91: Mudeyi (n 50).] 2.5 Conclusion In a nutshell, there is no established study that comprehensively explores division of matrimonial property in the context of the recent case of Joseph Ombogi Ogentoto and, particularly, the key elements of direct and indirect contribution. In view of this lacuna, the study herein contributes additional knowledge for further research in this area of law and law reform, the foundation of which is explored in the next chapter. The study draws on the foregoing literature, but heavily relies on statute and case law that outlines arguments and presumptions for sharing matrimonial property upon divorce. For instance, the Kivuitu v Kivuitu case set a precedent that was subsequently cited in many applications under the Married Women Property Act. Similarly, in the Beatrice Wanjiru Kimani v Evanson Kimani Njoroge, the court ruled that a wife's involvement in acquiring property did not automatically entitle her to a share in it.[footnoteRef:92] The court held that a wife who had been married for 16 years could not be presumed to have made a contribution, and such contributions had to be proven with evidence unless admitted. These cases provide a fundamental framework for how and when the sharing of matrimonial property should be conducted. It is a common argument in literature, that judges may apply the current law inconsistently due to the lack of legislative guidelines in evaluating crucial aspects like the resources, needs, and contributions of separating couples. While this is the position of this study, the researcher provides an in-depth analysis of the complex questions of direct and indirect contributions to matrimonial property and how these questions, especially indirect contribution, ought to be balanced for just and equitable distribution of matrimonial property. This forms the crux of chapters three and four of the study. [92: [1998] eKLR.] CHAPTER 3 DIRECT CONTRIBUTION AND MATRIMONIAL PROPERTY DIVISION 3.1 Introduction As noted in chapter 2, research is lacking on the issue of direct contribution to matrimonial property, including its various forms and how courts have considered this in matrimonial property disputes in Kenya. Direct contribution, according to literature, involves financially contributing to the purchase, maintenance, or improvement of property during the marriage.[footnoteRef:93] Such contribution can be made directly as a payment to the purchase of property (individually or jointly) or indirectly such as weekly or daily giving towards household expenses that lessen the other spouse’s burden. The legal basis for direct contribution in matrimonial property in Kenya is found in definition of ‘contribution’ under section 2 of the Matrimonial Property Act, 2013 as ‘monetary’ and ‘non-monetary’ contribution. This chapter explores this concept, drawing on different legislative provisions, case law and secondary sources. The researcher argues that, although the Matrimonial Property Act, 2013 requires courts to factor in monetary contribution in the division of matrimonial property, the distribution approaches adopted by courts over the years have often been inconsistent and inimical to the principle of equality enunciated under Article 45(3) of the Constitution. The chapter offers a brief historical perspective to this argument and narrows down to the legal underpinning of direct contribution and relevant Kenyan jurisprudence. [93: ibid.] 3.2 My Money is Mine but Yours is Ours my Foot! Historical Perspectives The above phrase sounds new, but it is the reality today where men actively expect their wives to do something and earn. Dual income couples go as far as owning property individually and jointly, investing in family business, among others; but the challenge ensues upon divorce. In earlier years, the African society considered a man as the owner, provider and leader of the family, a reasoning that aligned well with the natural school of thought. In such a society, the man was the owner of all property (except personal belongings) in the family including the woman, who in some communities would become a subject for inheritance upon the husband’s death. The husband was required to provide arable land for his wife and had the right would retain all the property upon the dissolution of the marriage. A woman’s right to own matrimonial property was therefore a mirage and only a few women were able to exercise their legal rights in practical terms. This is still the practice in some communities in Kenya and in some cases, women are forced to seek the courts’ intervention to get a share of matrimonial property even when they directly contributed to its acquisition. Among the Taita community in Kenya, if a husband initiates a divorce, the wife is entitled to property acquired during the marriage. However, if the wife initiates the divorce, she does not have a claim to any form of maintenance. Similarly, in certain Kenyan communities like the Luhya, Kisii, Maasai, and Taveta, even if a wife has contributed to the acquisition of property in the marital home, she is prohibited from taking any of it upon divorce. As this section shows, this practice is fast transitioning to align with modern dictates and the Constitutional recognition and protection of women’s rights to access, own and exercise control over land, adequate housing, and property. In this section, the researcher delves into these aspects and related shortcomings in-depth, providing a comprehensive overview that will serve as the foundation for specific analysis of direct contribution and the principle of equitable distribution. 3.2.1 Pre-2010 Statutory and Jurisprudential Underpinning Prior to the adoption of the 2010 constitution in Kenya and the enactment of the Matrimonial Property Act, women in marriage faced significant challenges within a legal system that lacked clear and equal provisions for accessing, managing, and controlling matrimonial property. The sharing of matrimonial property was primarily based on the spouse's financial input to its acquisition. This approach, as shown in Chapter Four, neglected other valuable contributions made by women, such as creating a nurturing home environment, raising children, providing companionship, managing the family business, or engaging in farm work. Consequently, this law and practice were viewed as oppressive to women who dedicated their time to maintaining the household while their husband’s pursued business or employment endeavours. 3.2.1.1 Married Women’s Property Act 1882 Kenya adopted the Married Women's Property Act 1882 (MWPA), originally a United Kingdom statute with broad application, by incorporating section 3(1) (c) into the Judicature Act (Cap. 8).[footnoteRef:94] This outdated law, derived from British legislation, was predominantly utilized by courts to govern the division of property between married couples, frequently leading to unjust outcomes where wives were denied any portion, let alone an equitable share, of marital assets.[footnoteRef:95] Notably, section 17 of the Act has been extensively discussed and analysed, attracting considerable debate and scrutiny. Section 17 of the MWPA stated that in cases involving disputes over property title or possession between husband and wife, either party may seek an order from the court.[footnoteRef:96] The judge had the authority to make an order regarding the disputed property as they deem appropriate. Initially, it was believed that the broad discretionary powers granted to judges under this section allowed them to act in accordance with justice, disregarding the technicalities of property law.[footnoteRef:97] In 1965, a notable change took place with the House of Lords decision in National Provincial Bank v Ainsworth,[footnoteRef:98] which brought clarity to the understanding of Section 17.[footnoteRef:99] [94: Alexander Macmorran, The Married Women’s Property Act, 1882. (London, Shaw 1883).] [95: Tim Stretton, KJ Kesselring and Sara M Butler, Married Women and the Law: Coverture in England and the Common Law World (Mcgill-Queen’s University Press 2013).] [96: ibid.] [97: ibid.] [98: [1965] 2 All E.R. 472.] [99: Macmorran (n 131).] Before this pivotal case, courts used section 17 to modify property rights relating to matrimonial assets. However, the House of Lords reached the conclusion that section 17 solely served as a procedural tool for determining proprietary rights between spouses and did not grant the courts the authority to modify those rights. In essence, the courts were unable to bestow rights that did not already exist. In National Provincial Bank Case,[footnoteRef:100] the husband abandoned his wife, who was recognized as having a legitimate entitlement to housing under the deserted wife's equity principle. It was acknowledged that she had the option to take legal action, such as seeking an injunction, to prevent her husband from interfering with her housing rights. However, it was revealed that the husband had secretly mortgaged the house, leading to his insolvency.[footnoteRef:101] The House of Lords ruled that the wife's right to housing did not fall under the category of a proprietary right as defined in section 17. Consequently, her claim against the bank, which held the mortgage on the house, could not be upheld. Essentially, the wife's reliance on section 17 to safeguard her interest in the house was deemed invalid. In summary, section 17 of the MWPA, although initially perceived as providing flexibility for judges to ensure fairness, was ultimately constrained by the House of Lords' ruling in 1965. This ruling clarified that the courts could not utilize Section 17 to modify or create new rights in relation to matrimonial property disputes.[footnoteRef:102] [100: National Provincial Bank (n 135).] [101: John William Edwards and William Frederick Hamilton, The Law of Husband and Wife: With Separate Chapters upon Marriage Settlements and the Married Women’s Property Act, 1882 (Butterworths 1883).] [102: ibid.] This legal decision established a precedent that had a subsequent impact on other cases. In the case of Pettit v Pettit,[footnoteRef:103] there was a situation where the wife purchased the marital home and registered it solely under her name. Throughout their marriage, the husband took it upon himself to decorate the house in his free time, which ultimately increased its value. When the marriage came to an end, the husband claimed a stake in the property under section 17 of the MWPA. However, the court determined that despite the value added through his contributions to the house's decoration, he did not acquire a beneficial interest in the property. The court explained that it lacked the authority to modify the property's title under section 17.[footnoteRef:104] Lord Reid eloquently expressed this position, stating that the meaning of section 17 could not have changed since its enactment in 1882. During that era, the certainty and security of property rights were considered paramount, making it highly unlikely that the parliament intended to subject a spouse's property to the unrestricted discretion of a judge when a dispute arose. In other words, Lord Reid emphasized that courts were not empowered to modify property rights under section 17. Consequently, in 1970, England made revisions to its legislation through the Matrimonial Property and Proceedings Act, particularly section 37.[footnoteRef:105] This clause establishes that if a husband or wife makes financial or value-based contributions to enhance a property, be it real estate or personal assets, in which either or both spouses have a vested interest, the contributing spouse shall be deemed to have obtained a portion or an augmented portion of that vested interest, provided that the contribution is substantial. Notably, this section acknowledges the significance of indirect monetary contributions towards the property. [103: (1969) 2 All ER 385.] [104: Baraza (n 24), per Justice Georgina Theodora.] [105: Edwards and Hamilton (n 138).] 3.2.1.2 Pre-2010 Judicial Approaches to Direct Contribution Kenyan courts, in response to the inequity caused by the existing approach, adopted an interpretation of section 17 that allowed them to exert control over the utilisation of property without altering its title.[footnoteRef:106] Through this approach, the courts issued orders regarding the usage of the property without necessarily changing its ownership. In numerous instances, they directed the sale of the property and specified the division of the proceeds. [106: JH Hames, Applications under Section 17 of the Married Women’s Property Act, 1882, (London, Oyez Publications 1971).] Over time, the court's stance evolved in Kenya to address the shifting social and economic dynamics. The initial substantial deliberation on section 17 was initiated during the legal proceedings of Karanja v Karanja.[footnoteRef:107] Within this specific case, the wife invoked section 17 as the foundation for her legal recourse, contending that she had made financial contributions towards obtaining the marital property. On the contrary, the husband presented an argument based on Kikuyu Customary law, asserting that women were prohibited from owning property, thereby questioning the legitimacy of his wife's assertion. The couple were married under the African Christian Marriage and Divorce Act, and throughout their union, the wife had made significant contributions to the household's expenses. She had also assisted in paying the children's school fees, and during her husband's five-year period of study abroad, she managed the household affairs.[footnoteRef:108] As evidence of her financial contributions, she presented records demonstrating that her monthly salary was deposited into her husband's account, from which he withdrew money for personal use. The farm under dispute was situated in Karen and served as the location for the matrimonial home. The wife asserted her claim to joint ownership of this property. However, due to the husband's involvement with another woman, the wife was compelled to reside in the servants' quarters. Despite the couple's ownership of additional properties, the wife contended that she had the rightful entitlement to stay in Karen as she was the one responsible for its development. The court proceeded with the evaluation of the wife's financial input in the accumulation of the entire matrimonial property in order to determine its extent. After thorough deliberation, it concluded that her contribution constituted one third of the overall value of the matrimonial property, which was assessed at 900,000 shillings.[footnoteRef:109] Consequently, she was granted 300,000 shillings, representing her equitable share based on her financial contributions. The court advised the husband to sell one of his other properties and provide the wife with the proceeds. Importantly, it should be noted that the court's intention was not to alter existing ownership titles, but solely to ascertain the wife's contribution and allocate her an amount commensurate with that contribution. [107: (1976) KLR 307.] [108: Mary Hallward-Driemeier and Tazeen Hasan, Empowering Women: Legal Rights and Economic Opportunities in Africa / (World Bank 2012).] [109: The Law Commission, ‘Family Law: Transfer of Money between Spouses - the Married Women’s Property Act 1964’ (1985) Working Paper No 90 accessed 27 July 2023. ] In a similar case, Kivuitu v. Kivuitu,[footnoteRef:110] the court's ruling emphasized the equal entitlement of both parties to shares of the property, considering the wife's contribution. To ensure a fair division, an impartial assessment of the property's value was mandated, and the husband was instructed to compensate the wife with an amount equivalent to half of the valuation.[footnoteRef:111] It should be noted that in this specific scenario, the marriage was a statutory one, and both the husband and wife had made financial and indirect contributions towards acquiring the jointly registered matrimonial home. Throughout the divorce proceedings, the wife requested the sale of the matrimonial home and an equitable distribution of the proceeds.[footnoteRef:112] Importantly, the court's aim was not to alter ownership titles, but rather to determine the respective interests of the spouses in the property. [110: (1991) KLR 248.] [111: Hallward-Driemeier and Hasan (n 146).] [112: Juma and Kanjama (n 17).] 3.2.1.3 Whether Indirect Contributions Alone Could Suffice for Orders Under S. 17 of MWPA These concerns have been addressed in the following two cases: Essa v Essa[footnoteRef:113] and Tabitha Wangeci Nderitu v Simon Nderitu Kariuki.[footnoteRef:114] Fatia Essa represented a significant Muslim marriage case in which the wife pursued justice through the legal system, seeking an equal portion of the matrimonial property to which she had made financial contributions.[footnoteRef:115] Successfully demonstrating her financial input, she secured a 50% share of the property as awarded by the court. This landmark case solidified the application of Section 17 to Islamic marriages, recognizing the wife's entitlement to an equal share. Similarly, in the case of Tabitha, a customary law marriage, the wife's contribution to the matrimonial property was indirect. Nevertheless, she was granted a 50% share of the property.[footnoteRef:116] These cases prioritize the actual evaluation of each party's contributions, ensuring that their interests align proportionally with their respective inputs. Once a contribution is established, an assumption of equal sharing is made. [113: (1995) LLR 384 CAK.] [114: [1998] eKLR.] [115: Juma and Kanjama (n 17) .] [116: World Bank, Gender and Economic Growth in Kenya: Unleashing the Power of Women (2007) accessed 27 July 2023.] In the Nderitu case,[footnoteRef:117] an appeal was made, resulting in the court of appeal ruling in favour of the wife's entitlement to an equal share. These discussions shed light on the emerging trend of granting women equal portions of matrimonial property. Consequently, in Muthembwa v Muthembwa,[footnoteRef:118] it was concluded that if a spouse contributes to the appreciation in value of a property inherited or gifted to the other spouse before the marriage, they are entitled to a share of the increased value under section 17 of the MWPA. In this case, the wife claimed a share in a property inherited by the husband from his father before their marriage, arguing that she had enhanced the value of the land. The court, acknowledging her contribution, awarded her 50% of the improved value of the property.[footnoteRef:119] Even then, various land laws, such as Chapter IX: Trust Land of the 1969 Constitution, the Trust Land Act, the Land Adjudication Act, the Land Consolidation Act, and the Land Disputes Tribunals Act, depended on customary law, where male dominance over land rights prevailed. These laws governed and determined land rights, often perpetuating gender disparities in land ownership. [117: Tabitha Wangeci Nderitu v Simon Nderitu Kariuki [1998] eKLR.] [118: (2002) 1 EA 186.] [119: Juma and Kanjama (n 17).] 3.3 Post-2010 Regime on Direct Contribution 3.3.1 Constitution of Kenya, 2010 Article 45(3) of the Constitution 2010 grants parties to a marriage, equal rights at the time of the marriage, during the marriage, and upon its dissolution. However, the Constitution provides a broad framework for this provision, leaving the task of determining its exact implications to the courts. Additionally, Article 27(1) stipulates that every person is equal before the law, entitled to equal protection and benefit from it.[footnoteRef:120] Consequently, the question arises whether equality implies that parties in a marriage should share all marital properties equally (that is, 50-50 percent share). The interpretation of the Constitution's intention in this regard falls under the jurisdiction of the courts. [120: Nnoko-Mewanu (n 77).] Moreover, Kenya has ratified various international legal agreements, including the UDHR, the African Charter on Human and Peoples' Rights, and the CEDAW.[footnoteRef:121] These international instruments further reinforce the notion of equality by advocating for fair distribution of matrimonial property in cases of divorce. [121: Makau (n 58).] 3.3.2 The Matrimonial Property Act 2013 As discussed in Chapter One, the regulation of matrimonial property was previously governed by the MWPA. However, the procedures outlined in this Act were not only unclear but also overly complicated for many individuals.[footnoteRef:122] Lord Hobson recognized that rectifying any imbalances in property rights between spouses would require legislative intervention. His inspiring words from 1969 serve as a testament to the Matrimonial Property Act, 2013, which was finally realized after 45 years. [122: Mukono (n 45).] The preamble of the Act establishes its purpose as providing for the rights and responsibilities of spouses concerning matrimonial property and related matters.[footnoteRef:123] The original clause in the Bill, prior to amendment and enactment, emphasized that the ownership of matrimonial property would be deemed to be shared equally between spouses, regardless of their individual contributions towards its acquisition.[footnoteRef:124] Upon divorce, the property would be divided accordingly. However, the Act acknowledges that in certain circumstances, determinations can be made during the subsistence of the marriage. [123: Moodley (n 37).] [124: Gayoye (n 51).] The Kivuitu v Kivuitu[footnoteRef:125] case, previously discussed, established important principles. According to the Court of Appeal in this case, property acquired during the marriage and registered jointly would be presumed to be held in equal shares. Subsequently, amendments were proposed to the Matrimonial Property Bill in November 2013. These amendments included changes to various clauses, such as allowing for inherited property to be considered as matrimonial property and removing certain provisions related to agreements between spouses. The amendments were passed and received presidential assent. [125: (1991) KLR 248.] Under sections 4(a) and (b) of the Act, a married woman has the same rights as a married man to acquire, administer, hold, control, use and dispose of property whether movable or immovable; and to enter a contract. This underscores the principle of equality under Article 45(3) of the Constitution. Thus, unlike under customary law, a married woman can contribute directly to the acquisition of marital property. Section 6 of the Act defines matrimonial property as the matrimonial home or homes, household goods and effects in the matrimonial home or homes, or any other immovable and movable property jointly owned and acquired during the subsistence of the marriage. Thus, the scope of matrimonial property is limited to movable and immovable property jointly owned by both spouses.[footnoteRef:126] This means that, for example, immovable property registered solely under the husband’s name would be considered his personal property and may not be subject to division during divorce settlements. These amendments raise concerns, as statistics from the Kenya Land Alliance and FIDA indicate that women hold only a small percentage of land title deeds jointly or independently.[footnoteRef:127] [126: Mukono (n 45).] [127: Baraza (n 24).] Additionally, ownership of matrimonial property under the Act vests in the spouses according to their contribution in its acquisition.[footnoteRef:128] The Act recognises direct contribution in monetary terms as one of the key considerations in the division of matrimonial property. This means that spouses need to prove their financial contributions to claim a stake in acquiring matrimonial property. Contribution is defined to include monetary contribution, which is a key form of direct contribution. There are different forms of direct or monetary contribution under the Act, namely: contribution towards purchase or acquisition of joint property;[footnoteRef:129] contribution towards the improvement of property acquired by the other spouse before or during the marriage;[footnoteRef:130] and farmwork that generates monetary benefits which are used for instance to acquire household goods and effects in the matrimonial home, especially for rural families. Gifts between spouses are presumed under the Act as belonging absolutely to the recipient.[footnoteRef:131] Such forms were also highlighted by Lord Justice Fox in Burns v Burns,[footnoteRef:132] including inter alia, contributing monthly payments towards acquisition of property, making a substantial financial contribution to the family expenses to enable the other spouse to settle the mortgage instalments, contributing to the running of and welfare of the home and easing the burden of the spouse paying for the property. [128: Matrimonial Property Act, 2013, s 7.] [129: Matrimonial Property Act 2013, s 6(c).] [130: Matrimonial Property Act 2013, s 9.] [131: Matrimonial Property Act 2013, s 15.] [132: 1 All ER 244 (as quoted by the Supreme Court of Kenya in JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae) (Petition 11 of 2020) [2023] KESC 4 (KLR) (Family) (27 January 2023) (Judgment)).] Moreover, if matrimonial property is acquired jointly during the marriage, there is a rebuttable presumption of equal beneficial interest in the property.[footnoteRef:133] This has been the position even before 2010 as illustrated by Kivuitu v Kivuitu[footnoteRef:134] where the court underscored the fact that property registered in the joint names of the spouses means that each spouse owns an undivided equal share therein. A similar position was held in Kamore v Kamore, where the court observed that: [133: Matrimonial Property Act 2013, s 14(b).] [134: [1991] eKLR 248.] ‘…where property is acquired during the course of coverture and is registered in the joint names of both spouses, the court in normal circumstances must take it that such property being a family asset is acquired in equal shares.’[footnoteRef:135] [135: (2000) EA 81.] However, as envisioned in the infamous Echaria v Echaria case,[footnoteRef:136] the presumption should not be understood to mean that any or all property acquired during the currency of the marriage must be treated as joint property. Where disputed property is not registered in the joint names of the spouses, the beneficial share of each would be based on their proven respective proportions of monetary contribution, either direct or indirect, towards the acquisition of the said property.[footnoteRef:137] This seems to have been incorporated under section 14(a) of the Matrimonial Property Act, 2013, which provides for a rebuttable presumption that matrimonial property acquired during marriage in the name of one spouse shall be held in trust for the other spouse – the division of which will however be based on each spouse’s contribution as per section 7 of the Act. However, where a spouse has made substantial but undiscoverable contribution, it is plausible to apply the maxim ‘Equality is equity’ to achieve fairness as was also highlighted in Gissing v Gissing.[footnoteRef:138] The Court in Echaria v Echaria, established the importance of monetary contribution, which however must be proven, and that non-financial contribution cannot be considered as contribution for purposes of division of matrimonial property. This was contrary to the finding in Kivuitu v Kivuitu and Nderitu v Nderitu which had underscored the importance of non-monetary contribution. [136: (2007) eKLR.] [137: ibid.] [138: (1971) AC 886.] Under the Matrimonial Property Act, 2013, married women automatically assume an equal share of liabilities incurred during the marriage upon divorce. However, the legislation does provide for prenuptial agreements, allowing couples to determine property rights before marriage. 3.3.3 Current Land Laws Section 4(2) of the Land Act, 2012, requires the National Land Commission and any State Officer to eliminate gender discrimination in law, customs and practices related to land and property in land. The Land Act further requires spousal consent for the execution of any charge on a matrimonial home. Section 2 of the Act defines “matrimonial home” as any property that is owned or leased by one or both spouses and occupied by the spouses of their family home. The Land Registration Act, 2012, provides for a unified land title registration system in Kenya. It includes strong protections for land rights of spouses by allowing for joint tenancy and a presumption of joint tenancy for any land obtained for ownership and use by both spouses – a provision that is equally entrenched in the Matrimonial Property Act, 2013. Section 93(2) of the Act grants spouses a legal interest in land that is held in one spouse’s name where the other has contributed to it through his or her labour. The aspect of spousal consent for the disposition of any land or dwelling is also entrenched in the Act. 3.3.3 Post-2010 Judicial Considerations on Direct Contribution Like pre-2010 decisions, post-2010 judicial decisions seem to attach significant weight to direct or monetary contribution in the division of matrimonial property than indirect contribution, while also taking cognisance of the principle of equality under Article 45(3) of the Constitution. For instance, in PWK v JKG,[footnoteRef:139] the Court while rejecting an equal division, pointed out that if the marital property in question is not registered in the joint names of the husband and wife, the beneficial share of each of them will be based on their proven proportions of monetary contribution either direct or indirect towards the acquisition of the property. This observation affirmed the principles enunciated in Echaria v Echaria as good law. The Court however stated that where the contribution by each spouse is substantial but unascertainable, it may be equitable to employ the maxim ‘equality is equity’. [139: [2015] eKLR.] In the PWK v JKG case,[footnoteRef:140] the wife had made both direct and indirect contribution to the property in issue, she was a nurse and equally run the family company in which she and the husband were the only shareholders. The husband contended that the wife had no beneficial interest in any of the properties under the company. The Court of Appeal went behind the corporate veil and held awarded the wife 50 percent of one of the properties registered in the name of the company; and pronounced her as the absolute owner of two other properties where she was residing. [140: ibid.] Further, in MNH v FHM,[footnoteRef:141] the plaintiff had sought for the distribution of the marital property in issue, including inter alia, that all properties registered in the Defendant’s name be declared to be held in trust and for the beneficial interest of the plaintiff. Why this case is important in this context is how the plaintiff sought to convince the court that she had made monetary contribution to the acquisition of the property. She produced bank statements, receipts of cash sales; and submitted that she had contributed to the acquisition and development of the properties in issue through funds generated from her small businesses. According to the Court, this evidence was not sufficient to proof the plaintiff’s monetary contribution. The Court however took notice of the plaintiff’s substantial non-monetary contributions during the marriage. Thus, were the properties to be distributed, the plaintiff would be entitled to a share of the same which would not necessary be equal to that of the defendant. The court declined to distribute the property because there was no conclusive proof of the dissolution of the marriage between the parties. [141: [2018] eKLR.] The foregoing indicates that the principle in Echaria v Echaria that gave more weight to direct contribution in the distribution of matrimonial property is still very much referenced despite the recognition under the Matrimonial Property Act, 2013 that both monetary and non-monetary contribution must be considered. However, some courts have held a different view indicating an awareness that spouses contribute to matrimonial property in different other ways outside of finances. For instance, in NWM v KNM,[footnoteRef:142] the Court was of the view that both monetary (direct) and non-monetary (indirect) contributions made by the parties during the subsistence of their marriage, must be considered in the division of the property in question. The Court referred to the persuasive authority of White v White[footnoteRef:143] in which the House of Lords had alluded to the greater weight of non-monetary contribution. [142: (2014) eKLR.] [143: [2000] UKHL 54.] 3.4 Conclusion The question of contribution in the division of matrimonial property has been there even before the 2010 Constitution. As discussed in this chapter, courts initially applied the English approach that largely recognised financial (direct) contribution as the only consideration to be made in the division of matrimonial property, and this was extensively discussed in the Echaria v Echaria case, which established that parties must prove their contribution. This case illustrated that direct contribution is necessary for the Court to recognize a spouse's contribution. This approach would disadvantage spouses whose contributions are non-monetary, such as managing the home, caring for children, overseeing domestic work, providing companionship, or managing family businesses and properties. Subsequent cases have followed Echaria v Echaria though the place of indirect contribution has increasingly become a topical issue, for instance in the Ogentonto case. Emerging from the foregoing is the fact that courts in Kenya attach significant weight to direct contribution in the division of matrimonial property perhaps because it is easy to prove. Although the Matrimonial Property Act, 2013 recognises both direct and indirect contribution, a lot of confusion is still prevalent on how to deal with indirect contribution in the distribution of matrimonial property. This aspect forms the crux of chapter 4 below, including a deep dive into the Ogentoto case. CHAPTER 4 INDIRECT CONTRIBUTION AND MATRIMONIAL PROPERTY DIVISION 4.1 Introduction Unlike direct contribution, different decisions have emerged from Kenyan courts on the weight of indirect or non-monetary contribution in the division of matrimonial property. While some courts have sought to recognize and advance the principle of equality through a 50-50 distribution of matrimonial property between spouses, others have downplayed the value of indirect contribution and accorded spouses whose contribution was substantially indirect, less than 50 percent of the matrimonial property. A question has therefore emerged as to whether indirect contribution to matrimonial property matters and, if so, whether an equal distribution (50 percent split) would achieve a fair distribution. This Chapter provides an in-depth analysis of this question based on statutory and case law as well as comparative perspectives from other jurisdictions. 4.2 The Value of Uncompensated Indirect Contribution 4.2.1 Statutory Recognition of Indirect Contribution The definition of ‘contribution under section 2 of the Matrimonial Property Act, 2013, recognises indirect contribution in non-monetary terms, which manifests in such forms or acts as domestic work and management of the matrimonial home, childcare, companionship, management of family business or property, and farm work. Further, under section 9 of the Act, a spouse who improves a property acquired by the other spouse before or during the marriage, acquires a beneficial interest in the property equal to the contribution made. Such acts, as was implied in Burns v Burns[footnoteRef:144] and White v White,[footnoteRef:145] are aimed at easing the burden of the spouse who is directly paying for the property. In White v White,[footnoteRef:146] Lord Nicholls of Birkenhead recognised the greater weight of non-monetary contribution and that, by being at home and having to look after young children, a wife may lose forever the opportunity to acquire and develop her own money-earning qualifications and skills – a position that was also echoed in Miller v Miller & McFarlane.[footnoteRef:147] [144: [1984] 1 All ER 244.] [145: [2001] 1 AC 596.] [146: [2000] UKHL 54.] [147: [2006] UKHL 24.] The researcher, however, notes that the Matrimonial Property Act, 2013, while being clear on the different forms of indirect contribution, does not provide any guidance on how courts should account for such contribution in the division of matrimonial property. Thus, courts have exercised wide discretionary powers in determining the weight of indirect contribution, leading to inconsistent jurisprudence on this aspect and the application of the principle of equality of marriage under Article 45(3) of the Constitution, 2010. In most of such cases, courts seem to undervalue the centrality of non-monetary contribution even where the same has been proved, and instead determine the distribution of marital property based largely on direct contribution. 4.2.2 The Judicial Impasse on Indirect, Non-monetary Contribution – Pre-2010 The judicial stalemate on the weight of indirect contribution to matrimonial property has been there even before the Constitution 2010, there being no statutory recognition of the same. In Kivuitu v Kivuitu,[footnoteRef:148] Omolo Ag. JA observed that indirect contributions of a housewife should be considered, and a value put on it when determining the wife’s contribution to the marriage.[footnoteRef:149] This includes the time and effort invested in maintaining the household and attending to matters that enhance the welfare of the family while the husband focuses on his career. The husband in this case argued that the wife was not entitled to any share of the matrimonial property to which he had solely contributed during their 20-year marriage. However, the Court of Appeal held, based on the presumption of equal ownership of the jointly registered property and the wife’s indirect contribution, that she was entitled to an equal share of the property as opposed to the 25 percent awarded by the lower court. A similar observation was made in Muthembwa v. Muthembwa,[footnoteRef:150] where the court recognised the centrality of indirect contribution to matrimonial property. [148: (1991) KLR 248.] [149: See quotation in Peter Mburu Echaria v Priscilla Njeri Echaria [2007] eKLR.] [150: (2002) 1 EA 186.] In Tabitha Wangeci Nderitu v Simon Nderitu Kariuki,[footnoteRef:151] the court disregarded the appellate court’s decision in Kivuitu, holding that the wife who claimed indirect contribution, was entitled to only 30 percent of the property in question as opposed to 50 percent, taking note of her incapacity to do any gainful activity after childbirth. This reasoning was substantially biased and devalued the wife’s unpaid work. Like in Kivuitu, the Court of Appeal reversed this biased decision and awarded the wife 50 percent of the property, noting that her indirect contribution enabled the growth of the matrimonial estate in issue. [151: [1998] eKLR.] The decision in Kivuitu did not essentially promulgate the principle of equality of division despite recognising the need to consider non-monetary contribution in determining the share of each spouse. Similarly, no such princ