Background of the Case

The Appellant and Respondent had entered into a customary marriage that was later formalized under the Marriage Act (Cap 150, now repealed), at the Registrar of Marriages office where a Marriage Certificate was issued. They were blessed with two children during their union. During the subsistence of their marriage, the Appellant and Respondent had moved into their matrimonial home at Tassia Estate, Embakasi, and proceeded to construct rental units on the property. The Respondent stated that during construction of the said rental units, she applied for a loan of Kshs. 200,000 and gave to the Appellant for the purposes of construction, but the Appellant denied the same. During the subsistence of the marriage, the Appellant acquired more assets including apartments and a car.

In 2008, the marriage broke down and was formally dissolved, which led to the Respondent commencing division of matrimonial property proceedings at the High Court.

  1. At the High Court

The Respondent filed the matter under the Married Women Property Act, 1882 and sought for the court to declare that the matrimonial home and other assets acquired during the marriage, even though registered in the Appellant’s name, were in fact joint ventures of both parties, and that the said property should be shared equally.

She argued that the properties had been acquired through joint effort, but were soley registered in the Appellant’s name. The court found that the only property that amounted to matrimonial property was their home at Tassia and the rental units as they had both constructed them. However, the court, being guided by the Echaria[2] case, stated that the Respondent had not proven to court what her actual contribution was. The court however recognized the indirect non-monetary contribution towards the family welfare, giving 30% of the plot at Tassia and 20% share of the rental units.

  1. At the Court Of Appeal

The Respondent claimed that the High Court erred in law, and that the principles in Echaria’s case had been overtaken by what the Constitution provided, more particularly, Article 45(3). The Appellant also made a cross appeal and claimed that the 30% share on matrimonial property and 20% of rental income was an error, having found that the Respondent had not made any monetary contribution. According to him, the Respondent should not have received any percentage of the matrimonial property.

The Court of Appeal, in its judgement considered the provisions of Article 45(1) and (3) of the Constitution and the Matrimonial Property Act[3] though the matter had been filed in the High Court before the said Act was enacted. The Court found that, having been in gainful employment and having taken out loans, she had a beneficial interest in the Matrimonial Property. It allocated the matrimonial home and rental income at the ration of 50:50.

  1. At the Supreme Court

The Appellant then moved to the Supreme Court, stating that the learned bench erred by applying Marimonial Properties Act 2013 as it came into force after the suit was already lodged in court. He disagreed with the finding of the court that equality of spouses during and after marriage as provided in Article 45 meant 50-50 sharing of property regardless of contribution.

  1. The Appellant’s Case

The Appellant submitted that the applicable law was the Married Women Property Act, 1882 as the Law must act prospectively and not retrospectively. [4] He further submitted that the equality of spouses under Article 45(3) of the Constitution does not mean the mathematical division of assets into two equal halves but that instead, calls for judicial assessment of what each arty brought to the table. He quoted PNN v ZWN (2017)[5] where the court held that division of matrimonial property must be based on fairness and conscience. He further argued that the Court erred in assuming that being in a gainful employment automatically meant contribution towards the purchase of the property and paying school fees for the children. He concluded by urging the court to only award 10% of the matrimonial property and rental income to the Respondent.


  1. Respondent’s Case

The Respondent argued that the Court of Appeal had not applied the law retrospectively, but that the Court had recognized the great development of family law since the promulgation of the new Constitution. She submitted that the said court had noted that whether under old regime or after the new constitution and Matrimonial Property Act of 2013, monetary and non-monetary contribution was to be considered, whether made directly or indirectly. The Respondent also noted that the Constitution can be applied retrospectively in appropriate circumstances as was applied in Agnes Nabjala’s succession case. [6] She maintained that Article 45(3) also meant equal sharing of the matrimonial property.


  • 1st Amicus Curiae (FIDA)

FIDA submitted that since the promulgation of the Constitution, courts have interpreted the Matrimonial Property Act and Article 45(3) to mean equal division of rights and obligations in marriage. FIDA also provided comparative jurisprudence from other jurisdictions that supported 50:50 equal sharing of the property.


  1. 2nd Amicus Curiae (LSK)

LSK submitted that whereas the 50:50 division of property is the starting presumption, it was a rebuttable presumption based on contribution. LSK further argued that the relevant law for application was the Constitution and the Matrimonial Property Act as the Married Women Property Act ceased to apply when it was repealed. According to LSK, it was important for courts to separate Matrimonial Property, and property individually obtained, even during the marriage.


The Supreme Court applied itself on the matter, having been certified as one that involved a matter of general public importance. The questions before the Supreme Court included which statute was applicable in the matter, and whether Article 45(3) provided a basis for apportionment of matrimonial property as 50:50 without consideration of contribution made.

The Court found that the Act in contention did not give any intention in clear and unambiguous terms to be applied retrospectively, and that therefore, the applicable law was the Married Women Property Act, 1882 and not Matrimonial Property Act

On the application of Article 45(3) of the Constitution, the Court found that the right to equality is one of the fundamental rights that is inherent to all human beings. The Court stated that the Article could not be submitted to the same limitations of retrospectively as the Statute, and that the particular article was therefore applicable.

The Supreme Court further found that Echaria vs Echaria was still good law for all claims made under the Married Women Property Act, 1882. The case had clearly outlined that a spouse is not entitled to property by virtue of being married alone, but by his or her contribution as well. The right to own property individually was preserved. Consequently, the Supreme Court interpreted Article 45(3) to mean that each party is entitled to their fair share of matrimonial property and not more.

Amongst other cases, the Court made reference to MEK v GLM[7] which espoused the meaning of equality as follows: “Equality in Marriage is not a principle to be applied bliendly nor is it intended to encourage dependency by one spouse. It is a situation where each party makes a contribution.”

The court concluded that when a marriage breaks down, the court should make a fair and equitable division of the acquired matrimonial property. To hold that Article 45(3) has the meaning of sharing the property in the ratio of 50:50 would bring huge difficulties within marriage, so the court stated. The court observed that this would encourage some parties to enter into marriage, make no contribution, and t hen expect equal share upon dissolution of the marriage.

That said ,however, the court still upheld the finding of the High Court as there was demonstration by the Respondent that she had taken out loans towards the construction of the matrimonial property, and the court sustained the 50:50 equal share between the parties.

Jurisprudence continues to grow as to the formula of sharing property upon dissolution of marriage, but the message is home, loud and clear:

  1. THAT the ratio 50:50 shall not automatically apply upon dissolution of marriage. Either spouse must demonstrate his or her contribution towards the acquisition of the property. It is imperative, that no matter how well-meaning you are as a spouse, that you keep record of your financial contribution towards the acquisition of property in marriage.
  2. THAT a spouse that has made contribution towards the purchase of any property should be included in title. Here is why. The assumption that one spouse is holding property on behalf of the other, in trust, is rebuttable.
  3. THAT the right to own property individually, even when married is preserved. There must be clear separation of what the Matrimonial Property is and what is not.


Mary Mukoma

Lead Counsel, Mukoma & Associates





[1] Petition no. 11 of 2020 (Joseph Ombogi Ogentoto Vs Martha Bosibori Ogentoto and FIDA & LSK as Amicus Curiae)

[2] Echaria vs Echaria (2007)eKLR

[3] 2013

[4] Samuel Kamau Macharia & Another v KCB & 2 Others, SC. Application No. 2 of 2011; [2012] eKLR (‘The Samuel Kamau Macharia Case’)


[5] Eklr


Agnes Nanjala William -vs- Jacob Petrus Nicholas Vander Goes, Mombasa CA Civil Appeal No. 126 of 2011, where the court found the right to equality to be inherent and indefeasible to all human beings despite the cause of action accruing before the 2010 Constitution


[7] (2018)eKLR

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