In the first part of this article, we summarized the judgment of the Supreme Court in JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & Law Society of Kenya (Amici Curiae) (Petition 11 of 2020)  KESC 4 (KLR). The Supreme Court ruled that Article 45(3) of the Constitution means that at the dissolution of a marriage, the matrimonial property should fall to the former spouses according to their contributions towards its acquisition. These contributions may be direct (monetary) or indirect (non-monetary). However, we also noted an important difference in the way the Court of Appeal addressed the issue. Rather than using the language of “contributions”, the Court of Appeal instead ruled that each spouse acquires a “beneficial interest” in matrimonial property. The difference between the two approaches is incredibly significant.
The Supreme Court’s use of the term “contribution” implies the exchange of resources by one or both spouses for property. The spouses contribute, directly or not, to acquiring resources for this exchange. Their separate contributions entitle each of them to a separable right in the acquired property – more precisely, a right to use the property and to exclude others from its use.
The approach of the Court of Appeal to matrimonial property, in this case, is strikingly different. The Court of Appeal issued its judgment on 23 February 2018, nearly 5 years before the Supreme Court issued its decision. The 7-page verdict, though light on analysis, is nevertheless rich. Through a very brief overview of its rulings predating the Matrimonial Property Act, the court demonstrates that both the old and the new family law regimes consider the contributions of each spouse in distributing matrimonial property. However, while the Supreme Court took the ratio of their contributions as a determinant of the proportion in which to distribute the property, the Court of Appeal instead treated contributions as proof that the spouses have a beneficial interest in the matrimonial property. The court cited Karanja v Karanja  as the source of this principle. In fact, according to the Court of Appeal, it has since applied this principle consistently in its decisions. The contribution of either spouse, be it direct or not, indicates that the property was acquired as a “joint venture”, to use the terms of Karanja v Karanja . Accordingly, property registered in one spouse’s is held at least partly in trust for the other. As for the proportion of distribution, this is determined not by the quantity of each spouse’s contribution, but rather by what is fair and what the dignity of each person demands. If the court treated the property rights of the spouses like the rights of parties to the assets of a business partnership, this would negate the trust that, to quote the court, “is the cornerstone of marriage unions.” Thus, we touch on the essential difference. While the Supreme Court seems to portray marriage almost as a business partnership, the Court of Appeal describes marriage in terms that appear more proper to an unconditional union.
Here, it would be appropriate to consider what property is and its place in a marriage. In the modern context, we commonly think of property as a thing that we have the right to use without restraint (at least, in principle), and from which we have the right to exclude others. Things that we own are surrounded, figuratively speaking (or even literally!), by a fence. We have a right to use whatever is on our side of the fence however we want, provided that we don’t interfere with other people’s capacity to do the same. Our property is our own, and we decide what to do with it. Like our own purpose, the purpose of our property is up to us to decide. The spirit of these words of the U.S. Supreme Court’s Justice Anthony Kennedy continues to resound even now – and increasingly, even here: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
At the heart of this notion of property is an idea of freedom that we cannot fully understand without considering the relationship between property and the body. If property implies the right to exclusive use of a thing, then the body is the truest instance of property. No one can exclude me from my body and experience it in the same way as I do. Additionally, we can only interact with the things that we call property in and through the body, almost as if our ownership of property is an extension of our relationship with our bodies to those things. The slogan “My body, my choice!” has long been in vogue. However, we hesitate to think of the body as property because we are convinced we should not use it without restraint. What is more, we hold this conviction not out of regard for the freedom of third parties, but rather because the body seems to bear a certain dignity that makes it objectionable to treat it as a commodity. We hesitate to permit the sale of human blood or organs not because we think it will make other people unable to use their bodies but rather because we are deeply convinced that human blood and organs are not at the same level as water and mangoes, or even hospital equipment. And we hold this conviction because, for the most part, we are aware that letting people trade their body parts to their own detriment is like putting those people themselves on the market, reducing them to objects of sale, of use. We would be reducing those people to tools. Yet all of this is implied by a statement that seems true: the body is the truest instance of property.
The problem lies in our understanding of property. If the body is the truest instance of property, then we should amend our conception of property to match our experience of the body. We experience the body as bearing dignity, demanding respect, because, though a person is not only his body, he is his body. There is an identity that we recognize between a person and his body. If you accidentally step on a woman’s foot and tell her, “I am sorry I stepped on your foot”, you do not mean it as you mean the words, “I am sorry I scratched your car.” We can phrase the first sentence as “I am sorry I hurt you” and mean the same thing; we cannot do the same with the second. Therefore, our experience of others as bearing dignity, also in their bodies, is an experience that our freedom is meant for aims that we do not define. Our freedom is meant for purposes that we instead discover – including affirming the worth or dignity of others. Moreover, this means that our bodies are meant for those aims, as is the property we possess through our bodies. Our property, like our freedom, is meant for others, and this is made manifest in our experience of the body.
But what does marriage mean for the body – and therefore, what does marriage mean for property? Is marriage more like a business partnership, an arrangement for convenience? Or is marriage unconditional? Considering what we have said about the purpose of the person as being to affirm the worth or dignity of others, we arrive at a criterion that can enable us to answer these questions. Does marriage affirm the worth or dignity of the person when conceived of as a conditional union, or as an unconditional one?
Once we have answered this question, we can evaluate the different approaches taken by the Supreme Court and the Court of Appeal to matrimonial property. Each approach implies an understanding of the body, marriage, and property that is of momentous significance for the economy and the nation. These issues will be addressed in the third and final part of this article.
 There is a debate about whether property is the thing itself or instead the right to it. Quite a few people, perhaps especially in legal circles, consider property as a “bundle of rights”, i.e., relations between people about things. However, the common sense understanding of property that most Kenyans seem to have is that described in the text. See Schindler, D.C. (2019). The Politics of the Real: The Church Between Liberalism and Integralism. New Polity Press: Steubenville, Ohio.
 In anecdotes, many older Nairobians will note that the abundance of fences around houses and grilles on windows is a recent phenomenon. The relationship between this change and the view of marriage proposed by the Supreme Court will become clearer later in the text.
 Planned Parenthood vs Casey (1992) (Supreme Court of the United States).
 Render, M.M. (2013). “The Law of the Body”, Emory Law Review 62(3), pp.549-605.