The Court of Appeal has overturned two leading judgments which had ordered the division of marital property 50/50.
Kenya’s second-highest court overturned judgments of the High Court and settled the division of property on the basis of each spouse’s contribution.
Courts have debated whether spouses should share marital property equally in divorce, and the issue is also pending before the Supreme Court.
According to the Law on Matrimonial Property (2013), “the ownership of matrimonial property is vested in the spouses according to the contribution of one or the other of the spouses to their acquisition, and must be divided between the spouses if they divorce or if their marriage is dissolved in some other way.”
In one of the quashed judgments, appellate judges awarded the woman a 10 percent share of the value of a matrimonial home alone and explained that the man was entitled to 90 percent because the evidence showed that he had paid for the entire property without any monetary contribution from the wife at all.
The appeals court noted that there was no child born from the couple’s union, therefore, the wife’s contribution would only be “company”.
Housework
According to judges, even household chores like shopping at the supermarket were carried out by a housekeeper and the man’s driver.
Evidence presented to the court indicates that the couple married in 2007 as a widow with one child and a widower with three grown children.
The court granted the man 65 percent and the woman received 35 percent of the property, which was worth more than Ksh.100 million.
Before their divorce, the wife had planned to eliminate the husband in order to acquire his property, witnesses testified.
The appellate judges said that High Court Justice Asenath Ongeri overlooked the weight of the man’s evidence, not just as the main contributor, but that the parties’ wealth has been amassed by seizing opportunities as they arise and by making careful investments.
the court said under the Deposit’s Interpretation and Section 2 of the Matrimonial Property Act the woman did not present any evidence to the court that she did any housework or the management of the marital home.
“There was no basis at all to conclude that the par spouses were entitled to an even division of the marital property. They weren’t, “said judges Hannah Okwengu, Mohammed Warsame and Sankale Ole Kantai.
In 2017, Justice Patrick Kiage in a case filed by one Zipporah Wangui against her estranged husband Peter Njuguna, ruled that if one partner invested nothing in marriage, they should not ask for a slice of what was invested by the other partner on the basis of love.
Wangui and Njoroge were embroiled in a 12-year court battle as the woman sought five properties – one in Nyahururu, three in Bahati-Kabatini and another one in Donholm.
Kiage ruled that sharing matrimonial property after divorce did not have a fixed formula in law and must be on the basis of fairness and conscience and not the 50:50 mantra.
“It is not a matter of mathematics merely, as in the splitting of an orange in two for, as biblical Solomon found, justice does not get to be served by simply cutting up a contested object of love, ambition or desire into two equal parts,” he said.
Kiage said the Constitution was not a safe haven for spouses who refused to put effort into their marriages.
“Our new constitutional dispensation is no safe haven for spouses who will not pull their weight. It cannot be an avenue to early riches by men who would rather reap from rich women or women who see in monied men an adieu to poverty,” said the judge.
