On 27 January 2023, the Supreme Court of Kenya issued one of its first judgments on the division of matrimonial property: JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & Law Society of Kenya (Amici Curiae) (Petition 11 of 2020) [2023] KESC 4 (KLR).
JOO (the appellant and husband) and MBO (the respondent and wife) were married under Abagusii customary law in 1990. In 1995, their union was formalized under the Marriage Act (CAP 150), which the Matrimonial Property Act has since repealed. They later acquired a plot of land on which they erected their matrimonial home and several rental units. The marriage broke down irretrievably in 2008. The appellant applied for its dissolution. The respondent initiated proceedings in the High Court for the division of matrimonial property in 2010.
JOO and MBO were married for 18 years. For 15 years, MBO was employed, frequently took loans to cater to their children’s school fees, and took care of the home. Both the High Court and the Court of Appeal held that the respondent thus acquired a right to a share – the Court of Appeal used the term “beneficial interest” – in the matrimonial property based on this. (The term “beneficial interest” is important – we will return to it later.) The Court of Appeal ordered that the matrimonial property and the rental units built on the land be shared equally between the parties.
However, JOO was dissatisfied with the decision. He claimed that the Court of Appeal applied Article 45(3) of the Constitution and provisions of the Matrimonial Property Act, 2013, even though both laws were enacted years after MBO instituted the suit in the High Court. He urged the Supreme Court to refer instead to the Married Women’s Property Act of 1882, the applicable statute at the time. The respondent, on the other hand, submitted that ever since the promulgation of the Constitution, Article 45(3), together with the Matrimonial Property Act, which Parliament enacted to give effect to the constitutional provision, is to be applied to all matrimonial property irrespective of the circumstances, even retroactively. While the Matrimonial Property Act acknowledges that a spouse may make a non-monetary contribution to the purchase of property, the Married Women’s Property Act, as interpreted in Echaria v Echaria [2007] eKLR, seems to recognize only financial contributions. This is the source of the contention.
The Supreme Court addressed several issues:
i. Whether Article 45(3) of the Constitution and the Matrimonial Property Act can be applied retroactively, and
ii. Whether Article 45(3) of the Constitution implies a redistribution of proprietary rights at the dissolution of a marriage
According to a five-judge bench of the Supreme Court, legislation other than the Constitution can only be applied retroactively when the statute’s phrasing indicates that Parliament intended retroactive application. This does not seem to be the case with the Matrimonial Property Act. However, a constitution like ours, which seeks to reform the entire social order, may be interpreted retroactively. Therefore, the Supreme Court held that the Married Women’s Property Act will apply to suits instituted before the Matrimonial Property Act came into force,[1] as would Article 45(3) of the Constitution.
As for the meaning of Article 45(3) of the Constitution for the distribution of matrimonial property, the court interpreted it as providing for an equality of the right to own property rather than an equal right to all property acquired during the marriage. Each spouse, for example, has a right to purchase land on their own account during the marriage; but that does not mean that each spouse has a right to half of what the other bought. Upon the dissolution of a marriage, the property is to be distributed according to the contribution, monetary or otherwise, made by each spouse to its acquisition, as was held in Echaria v Echaria [2007] eKLR.
At the heart of this judgment lie conflicting notions of property and marriage, giving rise to divergent notions of matrimonial property. The Supreme Court and the Court of Appeal use terms falling on either side of this divide when ruling on the appropriate distribution of matrimonial property. The realities these terms signify remain the same, regardless of the actual opinions of the judges who used them. On the one hand, the Supreme Court emphasizes that matrimonial property should be distributed according to the contribution made by each spouse to its acquisition. On the other hand, the Court of Appeal refers to the involvement of each spouse as giving rise to a beneficial interest in the matrimonial property. This is a difference of significant import. The second part of this article will analyze this difference and its implications.
[1] The Matrimonial Property Act came into force on 16 January 2014.
