High Court at Nairobi (Milimani Law Courts)
ENTITLEMENT TO MATRIMONIAL PROPERTY THROUGH THE AVENUE OF HUMAN RIGHTS
Reported by Nelson K. Tunoi
Whether a spouse is entitled to matrimonial property through the avenue of human rights an aspect not explored and/or interrogated by the Court of Appeal in the case law? Ref: Echaria v Echaria
What qualifies as matrimonial property for purposes of division between spouses?
Whether the High Court has jurisdiction to declare the proportions in the division of matrimonial properties
Family Law -division of matrimonial property-principles to consider in dividing matrimonial property-whether non-monetary contribution amounts to contribution in acquiring matrimonial property-whether a spouse is entitled to matrimonial property based on human rights principles-Constitution of Kenya, 2010 Article 45 (3); Interpretation and General Provisions Act (cap 2) section 23 (3)
Jurisdiction -High Court’s jurisdiction to declare the proportions in the division of matrimonial property-where the shareholding proportions of subject property by spouses in unclear
In Echaria v. Echaria the Court of Appeal laid down the following principles:-
That time was opportune for the court of appeal to depart from its own decision in the case of Kivuitu v. Kivuitu with regard to the preposition that joint tenancy connotes equality. The reason being that there is a rebuttable presumption that where 2 or more people contribute the purchase price of property in equal shares they are in equal joint tenants. Equal contribution results in a joint tenancy unless there is contrary evidence to show that irrespective of the registration there was no equal contribution.
Where the disputed property is not registered in the joint names of the spouses but it is registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective preposition as financed contribution either direct or indirect towards the acquisition of the property.
In cases where each spouse has made substantial but unascertainable contribution it may be equitable to apply the maxim is Equity.
That previous decisions of the Court of Appeal on the subject before the decision in the case of Echaria v. Echaria in all proven disputes between husband and wife over beneficial interest in the property acquired during marriage which had come to the court of appeal, the court of appeal had invariably given the wife an equal share but a study of the said decisions reveals that the said decisions were not as a result of any general principle of equality of division save that the court appreciated that for the wife to be entitled to a share of the property registered in the name of the husband she had to prove contribution towards the acquisition of the property.
That the “Kivuitu” case was carefully decided both on law and facts as it is a case where the husband and wife had a joint legal interest and a resultant equal beneficial interest in the property. The court did not lay out any principle on equal division as suggested.
That when dealing with disputes between husband and wife over property, the court applies the general principle of law applicable in property disputes in all courts between all parties irrespective of the fact that they are married. According to the English law of trusts it is only through the wife’s financial contribution direct or indirect towards the acquisition of the property registered in the name of her husband that entitled her to a beneficial interest in the property.
A wife’s non-monetary contribution cannot be taken into account when determining the total amount of contribution from the wife towards acquisition of the property.
Article 45 (3) Constitution of Kenya, 2010
“45(3) Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.”
Interpretation and General Provisions Act (cap 2), section 23 (3):-
“Section 23(3) where a written law repeals in whole or in part another written law then unless a contrary intention appears the repeals shall not:-
(c) Affect a right, privilege, obligation or liability acquired accrued or incurred under a written law so repealed”
The decision of Echaria v. Echaria being a Court of Appeal decision is binding on this court and the court affirms that it is the correct position of in law. The case carried out an extensive survey of case law of its own decisions on the applicability of the provision of section 17 of the 1882 Married Women Property Act of England, which case law has ruled that the said legislation being a statute of general application in England forms part of the received law from England to this jurisdiction and the principles on the interpretation of the said provision in England form persuasive law to the courts of this jurisdiction when interpreting the said provision in relation to disputes over property rights by spouses both married under the statute and customary law so far as applicable to the peculiar circumstances of this case.
The plaintiff who had been married under statute law has properly anchored her claim herein on the said statue and is entitled to a merit decision on her claim.
Properties which are proper candidates for adjudication under the said statute are those which are proven or qualify to be contested as matrimonial properties.
Up to and exclusiveness of the date when Echaria v. Echaria was decided the Court of Appeal had recognized the following as the ways in which a wife could gain entitlement to matrimonial property namely:-
By way of a gift whereby a husband solely acquires the property but intends to give a portion of it as a gift to his wife and registers the property in the joint names of both of them. The extent, value percentage of the gift may be specified. But where there is no specification of the wife’s ratio of entitlement but the property is joint then the presumption of equal share holding applied.
By way of a direct contribution towards the acquisition of the home by the spouse either contributing to the entire purchase price or meeting of equal mortgage installments.
By way of indirect contribution by reason of the wife off-loading from the husband the burden of child care and up keeping and general management of the family and the home as well as child bearing and in the process creating room for the husband to save money to meet the costs of capital investment.
By way of a wedding gift.
The decision of the Court of Appeal in Echaria v. Echaria did away with the issue of recognition of indirect contribution and stressed direct financial contribution as the overriding criteria in determining spouses’ entitlement to matrimonial property. Notably however, the court has jurisdiction to declare whatever percentage comprises of the wife’s shareholding in the subject property and then go further and avail that percentage to the wife by ordering that the property be valued and either sold and the proceeds shared out as per the percentages adjudged or alternatively that the incumbent spouse or the spouse who wishes to keep the property can buy out the percentage share entitlement of the other spouse.
A Bill is not law and for that reason its prescriptions howsoever favourable they may be to the plaintiff’s case, they cannot be applied to confer a benefit onto the plaintiff.
The prescription in Article 45 (3) of the Constitution of Kenya, 2010 was not part of the prescription in the defunct Constitution. It is a new innovation taking effect after the competing rights of the parties had crystallized at the time the plaintiff made the first move to come to court and sought reliefs in the year 2004. That finding notwithstanding, the court takes judicial notice of the fact that the provision of Article 45(3) (supra) has been lifted from Article 16(1) of the Universal Declaration of Human Rights to which the court takes judicial notice that Kenya is a signatory and has undertaken to uphold those ideals for the benefit of its citizenry.
Bearing in mind the caveat in section 23(3) (c) of the Interpretation and General Provisions Act the court can only go round that caveat if it can be demonstrated that there was obligation on the part of the Court of Appeal or any other court in this Jurisdiction to apply principles of equality in matrimonial property disputes based on this principle of equality as a basic human right both before the making, during the making and after the making of the decision in the Echaria v. Echaria decision if this issue of equal entitlement as between spouses based on human rights had a risen and interrogated by the court at the invitation of the parties or on the basis of the courts own motion.
The decision in Rono & another v. Rono is authority that even before the advent of the prescriptions in Article 2(5) and 45 (3) of the Constitution of Kenya, 2010 Kenyan courts were already alive and sensitive to there being a need to accord equal treatment to women and children in all spheres of life. This court appreciates that the decision in Rono & another v. Rono dealt with inheritance rights and issues, but the court is of the view that application of law knows no boundaries and for this reason application of the principle of equality in matrimonial property disputes is not remote. This court notes and appreciates that the principle of law set by the court in Echaria v. Echaria stems from provisions of a legislation subordinate to constitutional provisions, meaning that the constitutional provisions enshrining the principle of equality when it comes to distribution of matrimonial property has primacy over the principle of law enunciated by the decision in Echaria v. Echaria which storms from an ordinary legislation.
Matrimonial properties shared equally between the spouses.