The Kenyan Supreme Court has made a landmark ruling that married couples are not automatically entitled to an equal share of matrimonial property in case of divorce. The court stated that each partner should exit their marriage with the wealth they acquired individually. The case before the court was a decade-long legal battle between Joseph Ombogi Ogentoto and his ex-wife Martha Bosibori, concerning the ownership of rental units in Tassia and Nairobi, some of which are on the land of their matrimonial home.
Article 45(3) of the Kenyan Constitution guarantees equality rights during the dissolution of a marriage. However, the court found that this does not mean the redistribution of property rights. It therefore held that former spouses are not entitled to a 50% share of assets solely because of the marriage. The court noted that a party (spouse) must prove contribution to determine the percentage available to them at the distribution of matrimonial property.
The four-judge bench stated that in a marriage, the general assumption is that both spouses share everything and contribute towards the home or family. They added that both spouses may also work and earn income, which inevitably ends up being spent in the family. This is the essence of Section 14 of the Matrimonial Property Act, 2013, according to the judges. The bench was comprised of the Deputy Chief Justice Philomena Mwilu and Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung'u, and Isaac Lenaola.
