Legal Updates

A direct transfer of property attracts payment of stamp duty at market value. Gifts made by an owner to another party during the lifetime of the owner are generally not exempt from stamp duty payment. There are, however, some exceptions to the general rule.

Marriage is not simply the legalization of an informal union, of some “set of heterosexual unions undertaken with some idea of duration and manifested to the relevant social environment.”[1] Rather, marriage is a union of unconditional love between a man and a woman. In marriage, a man and a woman pledge to love each other without conditions, giving themselves completely to each other.

Ultimately, it is land and labor that produce wealth.[3] Land, considered as such, cannot have duties since it is an inanimate object. Therefore, naturally occurring resources (e.g., trees, water, etc.) should be freely available for use or consumption. As Adam Smith recognized, it is the institution of private property or, in more expressive terms, private sovereignty over property[4] that puts a price tag on these resources – and unjustly so.[5]

Taxation is a compulsory contribution to state revenue imposed by a government. One of the chief problems with contemporary taxation is the word “state” in that definition. From this point on, I will write it as “State”, beginning with a capital letter, for clarity.

Few people, if any, doubt that housing is a problem worth resolving. The Center for Affordable Housing Finance Africa (CAHF) estimates that Kenya faces a housing deficit of 80%. While the demand for housing is estimated at 250,000 units per year, only 50,000 new units are delivered annually. The National Housing Corporation estimates that Kenya faces a housing deficit of 2 million units and counting.

Not everything that can be done should be done. Assisted reproductive technology reduces people to objects for use. It is, therefore, unconstitutional and morally reprehensible. The Assisted Reproductive Technology Bill of 2023, which seeks to legalize assisted reproductive technology, should not be passed into law.

If the matrimonial property belongs entirely to each spouse, it is simply incorrect to speak of them owning the property in “proportions” as the Supreme Court did. The proportion proper to each spouse is the whole. And while it is true that some people may actively mistreat, manipulate, or exploit their spouses, these problems are properly dealt with according to the logic of self-gift that animates the union of marriage. What a man has given does not belong to him anymore.

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.[1] Things that we own are surrounded, figuratively speaking (or even literally!),[2] 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.

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.