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By Alexander Mutua
For better, for worse, for richer, for poorer, in sickness and in health, to love and to cherish till death do us part…[i]
The Ogentotos,[ii]were husband and wife who had acquired a piece of land and constructed their matrimonial home together with rentals in the parcel of land. However, in 2008 the marriage hit rock bottom and was officially dissolved by a decree absolute order in 2015. A proceeding for the division of matrimonial property ensued thereafter. The matter was appealed from the high court to the Supreme Court
The Supreme Court, sought to examine inter alia, the rights of each spouse in regard to the apportionment of matrimonial property, and whether Article 45(3) on equality of rights is a basis for a 50/50 division without spouses proving contribution.
Marriage is a sanctified union between a man and a woman. However, marriage nowadays has been converted to an avenue of, 'gold-digging, sponsor-seeking, pleasure-loving and divorce-hoping'[iii] individuals. The court has in several instances overturned decisions that have construed the law as granting an equal share to the matrimonial and resorted to applying an equitable principle.[iv]
Equality of men and women does not actually presume similarity but rather recognise the differences, and respects and supports the differences under the aegis of equity. Culture is the 'foundation of the nation',[v] in its lens women and men are not equal.[vi] Similarly, every individual's proprietary rights are protected by the Constitution.[vii] If the property is acquired in association with others, proprietary rights are granted subject to the contribution of each individual, similar to that of a partnership.
Tentatively, the Biblical story of King Solomon's judgment[viii] has ingrained in us that a half split will not necessarily assist to solve the schisms people have. This poses the question- upon dissolution of a marriage is the entitlement of each spouse an equal one or an equitable one?
The Supreme Court defined equality as 'all parties having same rights upon dissolution of a marriage based on their contribution'.[ix] Further, in deconstructing the equality provision under article 45(3), the Court pronounced itself that equality connotes a 'fair share' not 'common ownership' of the matrimonial property.[x]
Ordinarily, in a business setting, the percentage to the share of the business is determined by the direct financial capital injected into it. In the division of matrimonial property, the courts have juxtaposed shares to mean 'beneficial interest' or 'proprietary entitlement' to the property.
Ostensibly, the Supreme Court clarified that marital equality does not necessarily entail a 50:50 ratio, or a redistribution of property rights upon the dissolution of marriage,[xi] but rather, an equal 'proprietary entitlement'.[xii] Accordingly, the court in the case of Burns v Burns[xiii], espoused that marital equality may allude to a direct monetary contribution, where equality and common intention may be inferred from a financial contribution and not 'ordinary domestic tasks'.
The High Court in Echaria v Echaria[xiv] acknowledged that lack of a direct financial contribution, nonetheless, does not automatically preclude one from the auspices of a share in the matrimonial property. The law of Equity and Trust comes in as the determinant of the beneficial interest of each spouse. Thus, marital equity alludes to 'indirect contribution'.[xv]
In division of matrimonial property registered in the name of one spouse, the Supreme Court highlighted that law of trusts distributes the beneficial interest to each spouse. [xvi] This principle, thus, elevates fair distribution where the courts' role upon dissolution of a marriage is to make a 'fair and equitable division of matrimonial property'.
Ostensibly, spousal consent is conferred upon obtaining a beneficial interest subject to contribution to the matrimonial property. Kiage J. in PNN v ZWN posited that contribution is not quantified by the fact of being married as that would derogate from the protection of the right to property,[xvii] rather, through the direct financial contribution or indirect financial contribution.
The Supreme Court upheld the positions in Burns, Echaria and PNN v ZWN, and recognised that equality in division of matrimonial property requires both an inspection of direct financial contribution and indirect contribution. The Supreme Court also recognized that cases vary as to their facts. It therefore ordered that contribution be determined on 'a case- to- case basis'.In Ogentoto, notwithstanding, the Court noted the wife had proved significant contribution both directly by procuring a loan to supplement the construction of the rentals and indirectly by fact of the eighteen-year marriage, fifteen of which were in gainful employment; therefore, it proceeded to allocate a half share of the matrimonial property.
From the various dicta, in analysing contribution in matrimonial property, courts do not hesitate to take away from the sleeth[xviii] who define marriage as a cosmetic avenue of reaping where they did not sow. However, Kenyan courts have moved from the time when financial contribution was paramount, and indirect contribution was termed as a wife "…sitting on the husband's back with her hands in his pockets."[xix]
Therefore, when that 'ship of marriage hits the rocks, flounders, and sinks…'[xx] and the once romantic clutch converts into a matter of mathematical quantification of matrimonial property, the Ogentoto v Ogentoto decision can be used to clear this messy arena. As such, the Supreme Court warned that for matrimonial property to be automatically shared 50/50 'would bring huge difficulties within marriage'.[xxi]
[i] 'Traditional Wedding Vows for Your Ceremony' <https://www.marthastewart.com/7888175/traditional-wedding-vows> on 17 March 2023.
[ii] Joseph Ombogi Ogentoto v Martha Bosibori Ogentoto; FIDA-K and Law Society of Kenya (amicus Curiae), petition No. 11 of 2020, judgement of the Supreme Court.
[iii] Kiage J in PNN v ZWN, Civil Appeal No 128 of 2014, Judgment of the Court of Appeal,  eKLR.
[iv] For instance, Mary Ann Kivuitu v Samuel Mutua Kivuitu, Civil Appeal No 26 of 1985 (unreported); Tabitha Wangechi Nderitu v Simon Nderitu Kariuki, Civil Appeal No 203 of 1997, Judgment of the Court of Appeal, (1998) eKLR; Peter Mburu Echaria v Priscilla Njeri Echaria, Civil Appeal 75 of 2001, Judgment of the Court of Appeal  eKLR.
[v] Constitution of Kenya, 2010, Article 11(1)
[vi] 'Kenyan tribe divided overwomen's land rights after land mark ruling' <https://www.reuters.com/article/us-kenya-women-landrights-feature-idUSKCN1TQ12M>on 19 April 19, 2023.
[vii] Constitution of Kenya, 2010, Article 40.
[viii]Bible, New International Version,1 Kings 3:16- 28.
[ix] Ogentoto v Ogentoto, para. 93 citing the Malawian High Court decision of Kishindo v Kishindo  MWHC 447.
[x] Ogentoto v Ogentoto, para 82.
[xi] EGM v BMM, Civil Appeal 231 of 2018, judgement of the Court of Appeal,  eKLR.
[xii] PNN v ZWN, Civil Appeal 128 of 2014, Judgment of the Court of Appeal,  eKLR.
[xiii] Burns v Burns  1 All ER 244.
[xiv] Peter Mburu Echaria v Priscilla Njeri Echaria, Civil Appeal 75 of 2001, Judgment of the Court of Appeal  eKLR.
[xv] Matrimonial Property Act, No. 49 of 2013; Ogentoto decision para. 94.
[xvi] Gissing v Gissing  2 All ER 780.
[xvii] Constitution of Kenya, 2010, Article 40(1) and (2).
[xviii] Old Scottish term SLEETH, n. Also slieth. A slow lazy person, a sloven, sluggard (Abd. 1808 Jam.), also as a gen. term of reprobation, a worthless character. Hence sleeth-like, sluggardly. < https://www.dsl.ac.uk/entry/snd/sleeth#:~:text=SLEETH%2C%20n.,of%20reprobation%2C%20a%20worthless%20character.> on 19 April 2023 at 6.41p.
[xix] Kwach, J.A in Nderitu Vs. Nderitu Civil Appeal No. 203 of 1997.
[xx] Kiage J in PNN v ZWN Civil Appeal No 128 of 2014, Judgment of the Court of Appeal,  eKLR.
[xxi] Ogentoto decision, para 104.
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