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The supreme court of Kenya has delivered a landmark judgement on division of matrimonial property, expounding the meaning of article 45 of the constitution in relation to marriage vis vis distribution of property between spouses in the event of divorce.

In that case of Joseph ombogi ogentoto vs Martha Ogentoto and FIDA 2022, the apex court interprets article 45(3) of the constitution and finds that the provisions provide for equality in marriage but does not mean a 50:50 distribution between spouses upon divorce.

The court notes that nowhere in the constitution is it enunciated that a marriage between parties automatically results in common ownership/co-ownership of property vesting proprietary rights and article 45 (3) was not drafted with the intention of enabling a court to pass property rights from one spouse to another by fact of marriage only.

Accordingly, the apex court seems to put it clear that each party to a union is to be given share of their matrimonial property according to their contribution and the question of women who contributes indirectly/non-monetary to the value of the matrimonial property, on how to quantify their contribution notwithstanding that the courts have ruled that housewives are full time jobs worthy compensation, pay and pensionable.

Consequently, the supreme court also holds that by the language of article 45(3), the provision can only be applied prospectively that is going forward and not retrospectively which is also the similar opinion of the court on matrimonial properties Act. The court also strongly suggest that Echaria vs Echaria is good law to cases filed before the enactment of the matrimonial Act.

The court noted that the rationale for this decision is to cure the changing times and norms of citizens in our society who will only enter into the marriage union and comfortably subsist there without making any monetary or non-monetary contribution then proceed to have the marriage dissolved then wait to be given the 50% of the marital property.

The law is that each party has the obligation to show cause their contribution and the supreme court has only elaborated and confirmed this principle as its decision is binding to all the lower courts. The supreme court reasons that a party has to show what percentage of his/her earnings goes into the family unit and as such equality during division of property will be achieved

In the circumstances of this case the supreme court agreed with the Court of Appeal to award 50% of the matrimonial property and rental units as the 50-50 division was reasonable in the case.

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One Response

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