Kenya Supreme Court Rules Matrimonial Property Division Requires Proof of Contribution

Kenya’s Supreme Court has ruled that spouses are not automatically entitled to an equal share of matrimonial property upon divorce, requiring proof of individual contribution instead.

In a decision that affirms the principle of contribution-based property division, the Supreme Court upheld earlier rulings stating that assets acquired during marriage must be divided based on each spouse’s demonstrated input, financial or otherwise, rather than an automatic 50:50 split.

The case of JOO v MBO, arising from a separation in 2008, was central to this clarification. The Court of Appeal, and later the Supreme Court, determined that ownership claims over property must be supported by evidence of contribution. The courts rejected the notion that marriage alone establishes equal entitlement to jointly acquired assets.

This approach builds on the precedent set by the Court of Appeal in 2007, which overturned the 1993 High Court decision in Echaria v Echaria. That earlier ruling had granted the wife half of a 118-acre farm based on presumed joint ownership under Section 17 of the Married Women’s Property Act, 1882. The appellate court replaced this with a requirement that spouses demonstrate direct or indirect contributions to property registered in one party’s name.

The courts have since expanded the interpretation of “contribution” to include non-financial inputs such as domestic work, emotional support, and sacrifices made for the welfare of the family. However, these contributions must be proven and cannot be presumed. In a 2017 opinion, Justice Patrick Kiage emphasised that fairness should guide property division, not the assumption of equal sharing.

The Supreme Court also addressed the constitutional context, particularly Article 45(3) of the Constitution, which guarantees equal rights within marriage. The judges clarified that this equality does not imply a right to equal division of property upon divorce. Instead, it supports equitable distribution based on each spouse’s proven role in acquiring or sustaining matrimonial assets.

In 2018, the Federation of Women Lawyers (FIDA) challenged Section 7 of the Matrimonial Property Act, arguing that it violated constitutional protections of equality. The High Court dismissed the petition, warning that removing the contribution requirement could lead to exploitation and unjust enrichment.

These rulings represent a shift towards a more evidence-based system for resolving matrimonial property disputes. 

While recognising the importance of unpaid domestic work, the courts have maintained that property division must reflect each party’s actual input. This ensures protection for non-earning spouses without undermining the rights of those who made substantial financial contributions.