Equality under article 45(3) of the Constitution meant that during the dissolution of a marriage, each party to a marriage got a fair share of the matrimonial property based on their contribution.
The appellant and respondent’s union was formalized under the repealed Marriage Act cap 150. The appellant and the respondent later moved into their matrimonial home on their matrimonial property located at Tassia Estate within Embakasi in Nairobi. The respondent claimed that the appellant and herself proceeded to construct rental units on the property. The respondent added that during construction of the rental units, she successfully applied for a loan of Kshs 200,000 which she gave to the appellant to enable him complete construction of the units. The respondent further claimed that, during the subsistence of their marriage, the appellant proceeded to acquire more assets.
In 2008, the marriage irrevocably broke down and the appellant applied for its dissolution. A decree absolute was subsequently issued on October 15, 2015. It was the irrevocable breakdown of the marriage that led to the respondent commencing division of matrimonial property proceedings at the High Court. The High Court found that the only property that amounted to matrimonial property was the matrimonial property located at Tassia Estate. The court also held that the respondent had failed to prove her case on the claim that she directly contributed to the acquisition of that property which was registered in the appellant’s name. The court however recognized that the respondent made indirect non-monetary contribution towards the family’s welfare in the form of upkeep and welfare. The court for that reason proceeded to award the respondent 30% of the share in the matrimonial property and a 20% share of the rental units constructed within that property.
Aggrieved by the decision of the High Court, the respondent filed an appeal at the Court of Appeal while the appellant filed a cross appeal. The Court of Appeal found that the respondent, having been married to the appellant for 18 years, 15 years of which were spent in gainful employment, constantly took loans and helped acquire the matrimonial home jointly with the appellant. The court also found that, the respondent thus acquired beneficial interest in the matrimonial property and further that, the High Court erred in awarding the respondent a 30% share of the house and 20% share in the rental units. The Court of Appeal proceeded to set aside the High Court’s findings and ordered that the matrimonial property and the rental units built were to be shared equally between the appellant and respondent at the ratio of 50:50.
Dissatisfied by the Court of Appeal judgment, the appellant filed the instant appeal.
- Whether spouses were automatically entitled to a 50% share after dissolution of marriage.
- Whether the Matrimonial Property Act No 49 of 2013 could be applied retrospectively to claims filed before the commencement of the Act.
- Whether article 45(3) of the Constitution which provided that parties to a marriage are entitled to equal rights at the time of marriage, during marriage and at the dissolution of marriage applied retrospectively.
1. The appeal was certified as one involving a matter or matters of general public importance. The Matrimonial Property Act No 49 of 2013 came into being in 2013, with the Act giving its date of commencement as January 16, 2014, while the instant matter was filed in 2010, four years before the commencement of the Act. For legislation to have retrospective effect, the intention had to be clear and unambiguous from the words of such statute or legislation. There was no retrospective application of the Matrimonial Property Act and the applicable law to claims filed before the commencement of that Act was the Married Womens Property Act, 1882.
2. Article 45(3) of the Constitution provided that parties to a marriage were entitled to equal rights at the time of marriage, during the marriage and at the dissolution of the marriage. The language used in the article by itself resolved the question of retrospectivity. The right to equality was one of the fundamental rights and freedoms that were protected by the Constitution, a right that was inherent and indefeasible to all human beings. Only the language of the Constitution could act as a guide as to whether a provision in the Constitution applied retrospectively or not.
3. The language of article 45(3) of the Constitution did not connote that it could not be applied retrospectively. The language plainly provided for the right to equality to all parties of a marriage during the subsistence of such marriage, as well as at the dissolution of such a marriage. The Constitution could not be subjected to the same principles of interpretation applied to statutes on retrospective application of the law. Therefore, a reading of article 45(3) could only lead to the conclusion that there was nothing that barred its provisions from being applied retrospectively.
4. The principles in Peter Mburu Echaria v Priscilla Njeri Echaria  eKLR (Echaria) were good law and remained the basis within which matrimonial property should be distributed for matters filed before the commencement of the Matrimonial Property Act, 2013. The finding in Echaria, was essentially that a spouse did not acquire any beneficial interest in matrimonial property by fact of being married only and that specific contribution had to be ascertained to entitle such a spouse to a specific share of the property.
5. The position taken by Kenyan courts following Echaria case was that as much as section 17 of the Married Womens Property Act. 1882 gave courts discretion to do what was just and fair under the varying circumstances before them, it did not entitle a court to make an order which was contrary to any well-established principle of law on proprietary interests or ownership of property. The court in Echaria also noted that for one to be entitled to a share of the property, the court should consider the circumstances of each arising case independently in assessing contribution further noting that what amounted to contribution could either be direct and monetary and indirect and non-monetary.
6. The equality provision in article 45(3) of the Constitution did not entitle any court to vary existing proprietary rights of parties and take away what belonged to one spouse and award half of it to another spouse that had contributed nothing to its acquisition merely because they were married to each other. To do so would mean that article 40(1) and (2) of the Constitution which protected the right to property would have no meaning which would not have been the intention of the drafters.
7. Article 45(3) of the Constitution acted as a means of providing for equality as at the time of dissolution of marriage but such equality could only mean that each party was entitled to their fair share of matrimonial property and no more. Nowhere in the Constitution was there any suggestion that a marriage between parties automatically resulted in common ownership or co-ownership of property (hence vesting of property rights) and article 45(3) was not designed for the purpose of enabling the court to pass property rights from one spouse to another by fact of marriage only.
8. The guiding principle should be that apportionment and division of matrimonial property could only be done where parties fulfilled their obligation of proving what they were entitled to by way of contribution. The respondent provided evidence to prove direct financial contribution during the subsistence of the marriage and that aligned with the finding that a party had to prove contribution to enable a court determine the percentage available to it at distribution and furthermore safeguarded against a blanket expectation that the principle of equality would be applied generally in the division of matrimonial property irrespective of contribution. The test to be applied to determine the extent of contribution was ultimately one of a case to case basis.
9. Equality of parties to a marriage had largely been interpreted and construed in two ways. On the one hand, an interpretation of article 45(3) of the Constitution had been construed to mean a division of matrimonial property down the middle through the literal application of the 50:50 division ratio. Proponents of that argument largely opined that since non-monetary contribution could not be quantified but was equally important, a split right in the middle would be more appropriate. The second approach was that ‘equal’ as provided for under article 45(3), meant that a party obtained an equivalent of what one contributed, monetarily or otherwise.
10. Article 45(3) of the Constitution underscored the concept of equality as one that ensured that there was equality and fairness to both spouses. Equality and fairness were therefore one and intertwined. Equality also underscored the concept that all parties should have the same rights at the dissolution of a marriage based on their contribution, each party’s contribution to the acquisition of matrimonial property could not have been done in an equal basis as a party could have significantly contributed more in acquiring property financially as opposed to the other party.
11. Equity denoted that the other party, though having not contributed more resources to acquiring the property, could have nonetheless, in one way or another, through their actions or their deeds, provided an environment that enabled the other party to have more resources to acquiring the property. That was what amounted to indirect contribution. Equity therefore advocated for such a party who could seem disadvantaged for failing to have the means to prove direct financial contribution not to be stopped from getting a share of the matrimonial property.
12. The maxim ‘equality is equity’ had never been truer. Equity was an important principle when it came to matrimonial property since what was fair as it related to equity was not a question of the quantitative contribution by each party but rather the contribution by any party in any form, whether direct or indirect. Any substantial contribution by a party to a marriage that led to acquisition of matrimonial property, even though such contribution was indirect, but nevertheless had in one way or another, enabled the acquisition of such property amounted to significant contribution. Such direct or indirect acts could included:
- Paying part of the purchase price of the matrimonial property.
- Contributing regularly to the monthly payments in the acquisition of such property.
- Making a substantial financial contribution to the family expenses so as to enable the mortgage installments to be paid.
- Contributing to the running of and welfare of the home and easing the burden of the spouse paying for the property.
- Caring for children and the family at large as the other spouse worked to earn money to pay for the property.
13. While article 45(3) of the Constitution dealt with equality of the fundamental rights of spouses during and after dissolution of marriage, equality did not mean the re-distribution of proprietary rights at the dissolution of a marriage. Neither did the reading of that provision lead to the assumption that spouses were automatically entitled to a 50% share by fact of being married.
14. The stated equality under article 45(3) of the Constitution meant that the courts were to ensure that at the dissolution of a marriage, each party to a marriage got a fair share of the matrimonial property based on their contribution. That was best done by considering the respective contribution of each party to ensure no party was unfairly denied what they deserved as well as ensuring that no party was unfairly given more than what he or she contributed.
15. In a marriage, the general assumption was that both spouses shared everything and on the face of it, both parties contributed towards the home or family in one way or another, to whichever extent, however big or small. Both spouses could also work and earn income, which inevitably, at most instances, always ended up being spent on the family unit. It could be the whole income or a substantial part of it, but ultimately, a percentage of it went into the family. That was the essence of section 14 of the Matrimonial Property Act, 2013.
16. In the event that a marriage broke down, the function of any court was to make a fair and equitable division of the acquired matrimonial property guided by the provisions of article 45(3) of the Constitution. To hold that article 45(3) had the meaning of declaring that property should be automatically shared at the ratio of 50:50 would bring huge difficulties within marriages. Noting the changing times and the norms in the society, such a finding would encourage some parties to only enter into marriages, comfortably subsist in the marriage without making any monetary or non-monetary contribution, proceed to have the marriage dissolved then wait to be automatically given 50% of the matrimonial property. That could not have been the intention of Kenya’s law on the subject.
17.The respondent took out loans and contributed substantially to the purchase of the matrimonial property and rental units. The 50-50 division was therefore reasonable in the specific circumstances of the instant case.