6 February 2018
Johannesburg, South Africa
On 5 December 2017, the Constitutional and Human Rights Division of the High Court in Nairobi admitted the Initiative for Strategic Litigation in Africa (ISLA) as amicus curiae in a Petition that challenges section 7 of the Matrimonial Property Act 2013 (the Act). On 30 January 2018, ISLA submitted written submissions to the Court.
Section 7 provides that ownership of matrimonial property belongs to the spouses according to the contribution made by the spouses to the acquisition of the property and upon dissolution of marriage the property is distributed in terms of the spouse’s proved contributions. It is the Petitioner’s case that this law is in conflict with Article 45(3) of the Kenya Constitution, 2010. Article 45(3) entrenches the constitutional recognition that parties shall have equal rights at the time of marriage, during the marriage and at dissolution.
ISLA’s legal argument addresses the regional and international law on distribution of matrimonial property, comparative jurisprudence, relevant law reform initiatives in comparable jurisdictions, disparities in judicial pronouncements which demonstrate the deep and enduring challenges experienced by women as a result of the application of “proved contribution” as a criterion for division of matrimonial property.
The legislative history shows that prior to the enactment of the Matrimonial Property Act in 2013, the law that applied in Kenya was the Married Woman’s Property Act, 1882 (United Kingdom) as amended from time to time. Despite the regional and international law imperatives guaranteeing equality to spouses during a marriage and at dissolution, remnants of the 1882 Act and its particularly regressive nature in relation to distribution of matrimonial property still endured in most countries.
The case law in Kenya prior to the 2013 Act also held that a wife had to prove her contribution to the acquisition of the matrimonial property. Rather importantly, the Court found that only a financial contribution qualified as a contribution for purposes of this enquiry. This prejudice is addressed in that the 2013 Act recognises non-monetary contribution as part of matrimonial property. Notwithstanding the coming into force of Article 45(3) of the Constitution, and the Matrimonial Property Act 2013, some of the courts are still following and applying the principles of the pre-2013 jurisprudence. ISLA’s submissions highlights the prevailing inconsistencies that flow from the disparities in these judicial pronouncements.
This case has important implications for deepening the legal protections for women to access and take ownership of matrimonial property. It also cannot be gainsaid that women are often left destitute and without means following a divorce. This case provides an opportunity for the Constitutional and Human Rights Division to rule on the 2013 law viewed against the constitutional guarantees of equality and non-discrimination.
The Petition is enrolled for hearing on 14 March 2018. Having been granted leave to do so, ISLA will present oral argument at the hearing. ISLA is represented in this matter by Counsel based at Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN).
For further enquiries kindly contact:
ISLA WLPR Lawyer
Tel: +27 11 3389028