HOW MATRIMONIAL PROPERTY IS DIVIDED AFTER DIVORCE

How matrimonial property is divided after divorce in Kenya has caused a lot of confusion, especially around whether it should always be a 50/50 split. In this blog post, I’ll use the Supreme Court case Joseph Ombogi Ogentoto v Martha Bosibori Ogentoto & Another to explain how the law works and what really matters when courts decide who gets what. 

 FACTS OF THE CASE 

The parties involved in this case are Joseph Ombogi Ogentoto (the Appellant) and Martha Bosibori Ogentoto (the Respondent). They first entered into a marriage under Abagusii customary law in 1990, and subsequently began living together as husband and wife. Their union was later formalized on August 30, 1995, under the Marriage Act Cap 150 (now repealed) at the Office of the Registrar of Marriages in Nairobi, where a marriage certificate was issued. They had two children. 

They lived in their matrimonial home located on Land Reference No. Nairobi/Block 97/564 at Tassia Estate in Embakasi Nairobi. Martha claimed they also built rental units on the property and that she even took out a loan of Kshs. 200,000/- to help Joseph finish building those units. Joseph, however, said he didn't know about that loan 

Martha also claimed that during their marriage, Joseph bought other properties in Ngong, House No. 61 at Hillcrest Estate House in Athi River, Eagle Apartment House No. 270, and a motor vehicle with registration No. KAL 217Q, all registered in his name. But she insisted she had contributed to getting all these assets. 

Their marriage broke down in 2008, and they officially divorced in 2015. This sad event led to Martha starting a court case to divide their property. 

LEGAL ISSUES 

• Which law should apply when a case about dividing property was started before Kenya's new Constitution 2010 and the Matrimonial Property Act 2013 came into effect? Should it be the Married Women Property Act of 1882 or the newer Kenyan laws?
• Does the Kenyan Constitution's Article 45(3), which says spouses have equal rights in marriage, automatically mean that all property acquired during the marriage must be split 50:50 when they divorce, even if one person didn't put in much effort or money?
• And does that equal rights part of the Constitution actually give spouses direct ownership rights to property, or is it just a general statement about fairness? 

PROCEDURAL HISTORY AT THE COURTS 

1. At the High Court: 

In 2010, Martha started her case using a section of the Married Women Property Act of 1882. She asked the court to declare that the properties including their home, the rental units, other properties, and the car were joint efforts and should be shared equally. She said she had contributed, even though the properties were only in Joseph's name. 

The High Court decided that only the family home (Nairobi/Block 97/564) counted as shared marital property. Following an older court ruling, Echaria v Echaria, the High Court found that Martha hadn't directly put money into buying the home. However, the court did acknowledge that Martha made indirect contributions like taking care of the family and household. Because of this, she was awarded 30% of the family home and 20% of the rental units. 

2. At the Court of Appeal: 

Both Joseph and Martha were unhappy with the High Court's decision, so they both appealed. Martha argued that the High Court was wrong to say she didn't contribute money and wrong to rely on the old Echaria case, especially since the new Constitution was now in force. 

Joseph argued that Martha shouldn't have gotten any share, or at least a much smaller one, since he felt she didn't contribute financially. 

The Court of Appeal took into account the new laws, like Article 45(3) of the 2010 Constitution and the 2013 Matrimonial Property Act, even though Martha's case started before these laws existed. They found that Martha had been married for 18 years, was employed for 15 of those years, and had taken loans, showing she helped acquire the matrimonial home jointly with Joseph. They said she had a beneficial interest in the property.

The Court of Appeal disagreed with the High Court's percentages and decided that the matrimonial home and the rental units should be shared equally, at a 50:50 ratio, between Joseph and Martha.

3. At the Supreme Court: 

Joseph was still dissatisfied and took the case to the highest court in Kenya, the Supreme Court. His main arguments were that the Court of Appeal used the wrong laws and that equality shouldn't automatically mean a 50:50 split if contributions weren't equal. He wanted Martha's share reduced to 10%

Two important legal organizations, the Federation of Women Lawyers (FIDA Kenya) and the Law Society of Kenya (LSK), joined the case as "friends of the court" (Amicus Curiae) to offer their expert opinions on these complex legal questions

SUPREME COURT'S HOLDING 

After listening to all the arguments and reviewing the case, the Supreme Court made its final decision:

• The Supreme Court dismissed Joseph's appeal, meaning they upheld and agreed with the Court of Appeal's decision.
• They found no reason to disagree with the Court of Appeal's decision that a 50:50 division was reasonable in this specific case.
• The reason for this was that the Supreme Court agreed that Martha (the Respondent) had provided enough evidence to show she took out loans and contributed substantially to buying and developing the matrimonial property and rental units.
• Joseph was also ordered to pay for the costs of the appeal. 

LEGAL PRINCIPLES ESTABLISHED 

While deciding this particular case, the Supreme Court clarified some very important rules that judges should follow in future property division cases:

Which Law to Apply (Old vs. New): 

The Supreme Court confirmed that for property cases like this one, which were filed before the Matrimonial Property Act of 2013 (the newer law) started on January 16, 2014, the older Married Women Property Act of 1882 is still the correct law to apply. This is because new laws generally apply going forward, not backward, unless they clearly state otherwise. 

However, the Court also said that the principles of the 2010 Kenyan Constitution, especially Article 45(3) which talks about equal rights in marriage, can be applied to older cases. This is because the Constitution is a powerful document designed to bring about fairness, and its language supports applying equality throughout marriage, including when it ends.

Equality Does Not Automatically Mean 50:50: 

The Court made it very clear that when the Constitution talks about "equal rights" for spouses (Article 45(3)), it does not automatically mean that all marital property must be split 50:50 when a marriage ends. Instead, "equality" means that each person is entitled to their fair share of the property, based on what they contributed.

The Court stressed that simply being married doesn't automatically grant one spouse half of everything. People still have the right to own property individually, as protected by another part of the Constitution (Article 40). The judges even said it would be "surreal" and could encourage "gold-digging" if marriage automatically gave someone half of the wealth regardless of their effort. 

Contribution is Key (Direct and Indirect): 

For a spouse to be entitled to a share of property that's registered only in the other spouse's name, they must prove that they contributed to getting that property. This contribution doesn't just mean direct money. It can include:

• Direct financial contributions like paying part of the purchase price or contributing to monthly payments.
• Indirect non-monetary contributions like contributing to family expenses to free up the other spouse's money for property, taking care of the home, or raising the children while the other spouse works.

The Court emphasized that judges must look at the specific details of each case to figure out what is fair and right, rather than following a fixed formula. The goal is a fair outcome, without favoring the spouse who earned more money over the one who focused on the home and family. 

 

 

This case made it clear that matrimonial property isn’t always split 50/50, courts now look at what each spouse contributed. It’s a major shift in how divorce and property are handled in Kenya. Next, I’ll be breaking down the case of Fatuma Athman Abud Faraj v. Ruth Faith Mwawasi & Others (Petition No. E035 of 2023), which covers inheritance rights for children born out of wedlock in Muslim law. 

Catch you in the next blog. 

 

 

Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

REFERENCES 

Supreme Court of Kenya. (2021). Joseph Ombogi Ogentoto v. Martha Bosibori Ogentoto, Petition No. 11 of 2020.