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To hold that Article 45 (3) of the Constitution has the meaning of declaring that (matrimonial) property should be automatically shared at the ratio of 50:50 would bring huge difficulties within marriages... Noting the changing times and the norms in our society now, such finding would encourage some parties to only enter into marriages, comfortably subsist in the marriage without making any monetary or non-monetary contribution, proceed to have the marriage dissolved then wait to be automatically given 50% of the matrimonial property.
Those are not my words but the unanimous finding of a five judge bench comprising of Kenya's Deputy Chief Justice, Philomena Mwilu and Supreme Court Justices, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndungu and Isaac Lenaola in Petition No. 11 of 2020.
The locus classicus judgment dated and delivered at Nairobi on Friday the 27th of January, 2023 settles the debate on various aspects of family law and hopefully cures divergent and uncertain positions taken by different courts on the issues.
Case Background
The prouncements by the Supreme Court above was necessitated by a union gone sour between a Kenyan couple that got married in the year 1990 under the Abagusii customary law. Five years later, the couple formalized their union under the replead Marriage Act (Cap 150 Laws of Kenya), at the office of the Registrar of Marriages in Nairobi and a Certificate of Marriage issued to that effect. During the subsistence, the couple was blessed with two children.
All was well until sometime in the year 2008 when the marriage irretrievably broke down and the husband filed for its dissolution. A decree absolute was subsequently issued on 15th October 2015 paving way for the commencement of division of matrimonial property proceedings. At the core of the proceedings was a row as to who between the couple is entitled to a host of movable and immovable properties including inter alia -
their matrimonial home located at Tassia Estate within Embakasi in Nairobi;
rental units constructed within the same property as their matrimonial home;
a house at Hillcrest Estate in Athi River;
a house at Eagle Apartment; and
a motor vehicle (registration number withheld)
At the High Court
In its judgment rendered on the 2nd of February, 2017 the High Court (HC) presided over by Ougo J, identified three issues for determination thus; (i) what constituted matrimonial property; (ii) whether the respondent (ex-wife) contributed to the acquisition of the alleged matrimonial property and if so, to what extent and; (iii) the ex-wife's share in the matrimonial property.
The HC in that context found and ruled that the only property that amounted to matrimonial property was the property in Tassia Estate within Embakasi which hosted their matrimonial home and the rental units erected on it. The HC guided by the principle in Echaria v Echaria (2007) eKLR also held that the ex-wife had failed to prove her case on the claim that she directly contributed to the acquisition of that property which was registered in the ex-husbands name. The HC however recognized that the ex-wife made indirect contributions towards the family's welfare in the form of upkeep. For that reason the HC awarded her 30% of the share in the matrimonial home at the Tassia Estate and a 20% share of the rental units constructed within the said property.
At the Court of Appeal
Aggrieved by the decision of the HC above, the ex-wife filed an appeal at the Court of Appeal (COA) claiming inter alia that the learned trial judge of the HC erred in law in, (i) finding that the ex-wife had not shown any monetary contribution in the acquisition of the matrimonial property; (iii) in applying the decisions in Echaria v Echaria and Francis Njoroge v Virginia Wanjiku Njoroge (Nairobi Civil Appeal No. 179 of 2009) which are no longer good law and; (iii) awarding a lesser portion of the rental properties which were part of the matrimonial property.
The ex-husband also aggrieved by the HC judgment filed a cross-appeal urging that the leaned trial judge of the HC erred in, (i) awarding the ex-wife 30% share in the matrimonial home despite finding that she had not made any monetary contribution; (ii) awarding the ex-wife 20% share of the rental units on the matrimonial property while no evidence of monetary or non-monetary contribution has been provided and; (iii) making the award of 30% share which was inordinately high as the ex-wife made no direct contribution to its acquisition and development.
In its judgment, the COA confined itself to two issues for determination thus; (i) whether the learned judge erred by awarding the appellant 30% share of the matrimonial and 20% share of the rental income and; (ii) whether the cross-appeal should be allowed by substituting the awards issued by the HC with a lesser percentage or by dismissing the suit filed at the HC altogether. The learned judges at the COA having found evidence monetary and non-monetary contribution by the ex-wife found that the ex-wife had acquired beneficial interest in the matrimonial property. For that reason the COA dismissed the ex-husband's cross-appeal and also proceeded to set aside the HC's findings and ordered the matrimonial property to be shared equally between the ex-wife and ex-husband in the ratio of 50:50.
At the Supreme Court
Dissatisfied by the COA judgment, the ex-husband sought audience with the highest court of the land, being the Supreme Court of Kenya (SC) in the aforementioned Petition No. 11 of 2020. The SC restricted itself to four (4) pertinent issues for determination thus -
What is the applicable law in the division of matrimonial property where causes were filed prior to the current matrimonial property regime being the Constitution and the Matrimonial Property Act, 2013?
Should a matrimonial property cause filed prior to the promulgation of the Kenyan Constitution, 2010 be determined under Section 17 of the Married Women Property Act,1882 and in accordance with the principles espoused in Peter Mburu Echaria vs. Priscilla Njeri Echaria (2007) eKLR or should courts follow the new regime as at the time of determination by applying the provisions of Article 45(3) of the Constitution and the Matrimonial Property Act 2013 which underpin the principles of equality?
Whether Article 45 (3) provides for proprietary rights and whether the said article can be a basis for apportionment and division of matrimonial property on a 50/50 basis without parties fulfilling their obligation of proving what they are entitled to by way of contribution.
What relief is available to the parties including on the issue of costs?
Amici Curiae Contribution in the Petition
Together with the submissions of the adversaries in the petition, the SC allowed the applications by the Federation of Women Lawyers (FIDA) and the Law Society of Kenya (LSK) to be enjoined as Amici Curiae (Friends of the Court) and whose submissions on the issues for determination provided great insight to guide the SC to arrive at its final determination.
Submissions by the First Amicus Curiae - FIDA Kenya
In its submissions to the SC dated 19th January, 2022, FIDA posited that the term 'equal rights' in Article 45 (3) of the Constitution can only mean 50:50 division in rights, duties and liabilities within marriage and that this was the only interpretation that promotes the principles of equality as enshrined in the Constitution.
That by dint of Article 2 (5) and 2 (6) of the Constitution, international law is considered part of Kenyan law, adding that Kenya is a signatory of the Universal Declaration of Human Rights (UDHR), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), International Convention on Civil and Political; Rights (CCPR) and African Charter on Human People's Rights (ACHPR) which all espouse an established international principle of equal right of parties in a marriage. In this regard FIDA urged that, all these treaties and conventions have the same import as Article 45 (3) of the Constitution that promotes equal rights of parties in marriage.
Submissions by the Second Amicus Curiae - LSK
On its part, the LSK relied on its brief dated 24th November, 2020 which also focused on the import of Article 45 (3) of the Constitution as regards apportionment and division of matrimonial property. LSK posited that upon dissolution of marriage, 50:50 split should be a starting presumption capable of being rebutted by evidence showing contribution by either party or intention to identify beneficial interests. This according to LSK would ensure that courts render decisions based on the particular facts of each matter, allowing equitable decisions.
The LSK also contended that the relevant law to be applied when it comes to matrimonial property remain to be Article 45 (3) as well as the relevant provisions of the Matrimonial Property Act, 2013. It argued that upon commencement of the Matrimonial Property Act on 16th January, 2014 the repealed Married Women Property Act ceased to apply and therefore reliance on it to determine similar disputes as the present one would be erroneous.
LSK also submitted that what constitutes matrimonial property should be distinguished from separate property acquired during the subsistence of a marriage by respective spouses and this often leads to erroneous judgments with respect to apportionment of matrimonial property upon dissolution of marriage.
LSK thus urged the SC to render a firm decision on apportionment of matrimonial property to guide determination of future disputes and to cure divergent and uncertain positions taken by different courts on the issues.
Supreme Courts Analysis of the Issues for Determination
The four (4) issues identified for determination by the SC (as earlier enlisted herein) were determined under various subheads as follows -
Retrospective application of the Matrimonial Property Act, 2013 as well as Article 45 (3) of the Constitution
The ex-husband in the instant case contented that the COA erred in law by failing to apply the repealed Married Women Property Act, 1882 which was the applicable law at the time the suit was lodged as that is also when rights, duties and remedies accrued between the parties. The ex-wife on her side submitted that the COA did not apply the law retrospectively, but only recognized that the body of law had developed exponentially since the promulgation of the 2010 Constitution, with the COA noting that the Matrimonial Property Act, 2013 had augmented the provisions of the Constitution.
The SC reiterated its earlier decisions in Samuel Kamau Macharia & Anither v KCB & 2 Others Application No. 2 of 2011 (2012) eKLR and Daniel Shumari Njiroine v Naliaka Maroro SC Motion No. 5 of 2013 (2014) eKLR and noted that for a legislation to have retrospective effect, the intention must be clear and unambiguous from the words of such statute or legislation. Having perused the Matrimonial Property Act, 2013 and consideration of the submissions by the parties, the SC came to the conclusion that there is no retrospective application of the Matrimonial Property Act, 2013 and held that the applicable law in the instant case is the Married Women Property Act, 1882.
As regards the retrospective applicability of Article 45 (3) of the Constitution, the SC equally relied on Samuel Kamau Macharia Case to hold that the language of the Article itself resolved the question of retrospectivity. That the language of the Article does not connote that it may not be applied retrospectively. The language plainly provides for the right to equality to all parties of a marriage during the subsistence of such marriage, as well as at the dissolution of such marriage. The SC observed that the Constitution cannot be subjected to the same principles of interpretation applied to statutes on retrospective application of the law. To this end, the SC found that there is nothing that bars Article 45 (3) of the Constitution from being applied retrospectively.
Having arrived at that conclusion the SC established that the principles in Echaria v Echaria are good law and remain the basis within which matrimonial property should be distributed for matters filed before the commencement of the Matrimonial Property Act, 2013.
Whether Article 45 (2) provides for proprietary rights
The ex-husband in the instant case while relying on Section 17 of the Married Women Property Act argued that the COA erred in finding that his ex-wife had contributed to the acquisition of the contested property and rental units for the reason that she was in occupation of the matrimonial home thereon for a considerable period of time. In this regard the ex-husband contended that in fact, his ex-wife did not make any financial contribution towards the acquisition and development of the property but he was willing to cede 10% nonetheless. The ex-wife on her part submitted that direct financial contribution was proved as she was responsible for running family expenses, which amounted to direct contribution on her part. She therefore supported the finding of the COA.
Having found that Echaria v Echaria is good law, the SC cited the finding of the five-judge bench in Echaria to wit, where the property in dispute is registered in the name of one spouse the beneficial interest of each spouse would depend on the financial contribution by each spouse either directly or indirectly. The SC only went ahead to add at paragraph 81 of its judgment thus, the equality provision in Article 45 (3) of the Constitution does not entitle any court to vary existing propriety rights of parties and take away what belongs to one spouse and award half of it to another spouse that has contributed nothing to its acquisition merely because they were married to each other. That in doing so, it would mean that Article 40 (1) and (2) of the Constitution which protect the right to property would have no meaning and which would not have been the intention of the drafters.
While therefore reiterating the finding in Echaria, the SC also found that Article 45 (3) acts as a means of providing for equality as at the time of dissolution of marriage but such equality can only mean that each party is entitled to their fair share of matrimonial property and no more. That nowhere in the Constitution did it find any suggestion that a marriage between parties automatically results in common ownership or co-ownership of property and that Article 45 (3) was not designed for the purpose of enabling the court to pass property rights from one spouse to another by fact of marriage only.
The SC rendered itself on the matter in relevant parts thus -
Therefore, in the event that a marriage breaks down, the function of any court is to make a fair and equitable division of the acquired matrimonial property guided by the provisions of Article 45 (3) of the Constitution. To hold that Article 45 (3) has the meaning of declaring that property should be automatically shared at the ratio of 50:50 would bring huge difficulties within marriages... Noting the changing times and the norms in our society now, such a finding would encourage some parties to only enter into marriages, comfortably subsist in the marriage without making any monetary or non-monetary contribution, proceed to have the marriage dissolved then wait to be automatically given 50% of the marital property. That could not have been the intention of our law on the subject.
As regards the reliefs to be afforded to the parties in the instant case, the SC found no reason to upset the decision of the COA which awarded the ex-wife 50% of the matrimonial property and 50% on the rental units thereon because, in light with its finding that contribution must be proved, the SC agreed with the COA that there was numerous evidence placed before the HC by the ex-wife to show that she deserved 50% but which evidence the HC ignored. The SC agreed with the COA at paragraph 107 of its judgment that indeed the ex-wife had taken loan and contributed substantially to the purchase of the matrimonial property and the rental units in question. The 50:50 division was therefore reasonable in the specific circumstances of the instant case.
The SC therefore dismissed the petition and ordered the ex-husband to bear the cost.
THE END
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