Women Lose Property Battle
The Court of Appeal has put a stop to efforts aimed at changing the laws around how wealth is divided when a marriage ends.
A panel of three judges from the Appeal Court confirmed that Section 7 of the Matrimonial Property Act is indeed constitutional. This section ensures that each spouse receives a share of the family wealth that reflects their contributions during the marriage.
The bench included Justices Aggrey Muchelule, Kairu Gatembu, and Fred Ochieng’. Unfortunately, Justice Ochieng’ passed away before the judgment was delivered on October 3, 2025.
The Federation of Women Lawyers Kenya (FIDA-Kenya) had approached the higher court, arguing that this provision was unconstitutional and unfairly discriminated against women. In a ruling made on May 14, 2018, then High Court Judge John Mativo upheld the constitutionality of the Act, which led to the appeal.
FIDA was advocating for a ruling that would guarantee women a 50:50 split of matrimonial property when a marriage ends, regardless of their individual contributions.
Essentially, FIDA’s argument suggested that someone could enter a marriage with nothing and leave with half of the shared property without needing to prove how they contributed to its acquisition or growth.
According to the law, when a marriage is dissolved, the matrimonial property should be divided based on both monetary and non-monetary contributions made by each spouse towards acquiring it.
Article 45(3) of the Constitution states that both partners in a marriage are entitled to equal rights at the time of the marriage, throughout the marriage, and when it comes to ending the marriage.
FIDA pointed out that the wording of Section 7 in the Matrimonial Property Act violates the rights of married women to own property after a marriage ends, as they are required to prove their contributions to acquire it
“While the definition of contribution now included monetary and non-monetary contribution, a spouse who contributed money was in a better position. This meant that the male spouse was advantaged compared to the female spouse whose non-monetary contribution had been left to the whims of the courts to calculate and/or estimate,” FIDA’s case stated.
It added: “The effect has been discrimination and the denial and violation of women’s rights to property, leading to decisions that are in conflict with the constitutional command under Article 45(3) of the Constitution which, according to the appellant, means a 50:50 sharing of matrimonial property upon the marriage ending irrespective of contribution.”
FIDA’s lawyers pointed out that judges have consistently viewed financial contributions as more significant than non-financial ones.
The female lawyers’ organization argued that treating these two contributions differently is discriminatory. They pointed out that the daily activities women engage in simply can’t be measured in a logical way.
“And so, at the end of marriage, money that was utilized to buy a property is quantifiable, a bank transfer is easy to trace. And so, by treating those two contributions differently, women end up poor at the end of marriages. They leave marriages without property.”
The Attorney General, who is the respondent in this case, argued that the Matrimonial Property Act has clearly defined “contribution.” This means that when a marriage comes to an end, it’s only fair and just for the spouses’ claims to the matrimonial property to be evaluated based on how much each contributed to acquiring it.
“Therefore, Section 7 of the Act does not lessen the claim of the woman spouse, or contravene or contradict Article 45(3) of the Constitution by asking what each spouse contributed, either by way of money or otherwise, towards the acquisition of matrimonial property,” the AG stated.
In its findings, the Court of Appeal highlighted that during the discussions held by the Constitution of Kenya Review Commission at Bomas, key topics included the role of women in marriage, their rights to property—particularly land—and the need for protection against discrimination. These crucial issues ultimately made their way into the Constitution.
“The Constitution made it categorically clear that ‘every person’ (whether man or woman) had inherent dignity and the right to have that dignity respected and protected, and ‘every person’ is entitled to all human rights and fundamental freedoms in the Constitution.”
In their concurring decision, Justices Muchelule and Gatembu pointed out that the clear inclusion of non-monetary contributions in the Matrimonial Property Act for dividing matrimonial property was a direct response to the historical and judicial disregard for these contributions.
“The noble intention was to ensure that division of matrimonial property is fair and equitable. As we understand it, the practical challenge which the appellant says has a discriminatory effect is that while, for instance, it may be easier to produce bank statements and other documentary evidence to establish financial or monetary contribution, it may not be so regarding non-monetary contributions such as provision of household management and childcare.”
They added: “However, at the end of the day, it is a question of evidence and courts are equipped to assess the weight and credibility, or otherwise, of the evidence presented, whether documentary or non-documentary, by the parties, with a view to determining whether the spouse claiming contribution has discharged his/her burden of proof in that regard.”
According to the Supreme Court’s ruling, the judges emphasized that when a marriage falls apart, it’s the court’s job to ensure a fair and just division of the shared property, following the guidelines laid out in Article 45(3) of the Constitution.
“At the end of the day, therefore, we do not agree with either the appellant or the Amicus Curiae when they complained that the learned judge fell into error when he determined that Section 7 of the Matrimonial Property Act was not contrary to, or inconsistent with, Article 45(3) of the Constitution. Section 7 of the Matrimonial Property Act neither violated nor contradicted Article 45(3) of the Constitution. The result is that we find the appeal not merited and dismiss it.”
Women Lose Property Battle
