Brief Background
Mr. and Ms. Ogentoto married under the Abagusii Customary Law in 1990. They were issued with a marriage certificate after their union was formalized in 1995 at the Office of the Registrar of Marriages in Nairobi. The couple got two children. Later, Mr. and Ms. Ogentoto moved into their matrimonial home in Tassia Estate in Embakasi, Nairobi, where they also constructed rental units. Ms. Ogentoto stated that she took out a loan of Kshs 200,000/=, which she gave to Mr. Ogentoto to complete the construction of the units. Mr. Ogentoto also acquired more assets in the form of properties and vehicles in his name. In 2008, Mr. Ogentoto applied for the dissolution of the marriage, which had irreparably broken down. Thereafter, Ms. Ogentoto commenced proceedings for the division of their matrimonial property. The case was initially tried in the High Court, appealed to the Court of Appeal and then finally appealed to the Supreme Court of Kenya. The Apex Court used this opportunity to render a firm decision on the division of matrimonial property and cure the divergent and uncertain positions taken by different courts. That notwithstanding, all three courts had the opportunity to pronounce themselves on key legal issues relating to matrimonial property disputes, which we shall expound on below: -- What constitutes Matrimonial property?
- What is the applicable law in the division of matrimonial property when the divorce case was filed in 2008 (or before the Constitution of Kenya 2010 and the Matrimonial Property Act 2013 took effect)?
- Does Article 45(3) of the Constitution of Kenya 2010 provide for proprietary rights?
- Does Article 45(3) of the Constitution provide for a 50:50 ratio that can be used as a matrix for apportionment and division of matrimonial property?
- What is contribution in relation to the matrimonial property?
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What constitutes Matrimonial property?
- The matrimonial home or homes;
- The household goods and effects in the matrimonial home or homes; or
- Any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.
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What is the applicable law in the division of matrimonial property when the divorce case is filed in 2008?
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Retrospective application of Matrimonial Property Act, 2013
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Retrospective application of the Constitution of Kenya, 2010
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Does Article 45 (3) of the Constitution provide for proprietary rights or a 50:50 ratio that can be used during the division of matrimonial property?
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What amounts to a contribution to Matrimonial Property?
- Paying a part of or the full purchase price of the property;
- Taking a mortgage or loan to settle the purchase price of the property; or
- Contributing regularly to monthly payments towards the settlement of the purchase price of such property.
- Making substantial financial contributions to family expenses to enable the other spouse to settle the purchase price of the property;
- Contributing to the running and welfare of the home and children and easing the burden of the spouse paying for the property; or
- Caring for the children and the family at large, growing food to feed the family and generally taking care of the household; creating an environment for the other spouse to earn income for the family.
Conclusion
The Supreme Court upheld the decision of the Court of Appeal that awarded 50% of the matrimonial property and 50% of the rental units to Ms. Ogentoto. Based on the evidence produced, they found that the Court of Appeal was correct in finding that Ms. Ogentoto had directly contributed to the matrimonial property by taking out a loan to facilitate the construction of the rentals and indirectly by taking care of the general welfare of the family. This decision notwithstanding, it is very difficult to ascertain how property will be divided between spouses after the dissolution of the marriage. The best way to protect your proprietary interest by consulting an experienced Wealth and Private Clients lawyer, who based on your circumstances, can advise whether it is best to create a family trust or enter into a pre-nuptial agreement or a post-nuptial agreement.Please click here to download the articleHow can we help?
At CM Advocates LLP, we have an outstanding team of Wealth and Private Client lawyers with a wealth of experience in matters of marriage, divorce, children custody and maintenance, estate planning, family businesses, wealth management and trust administration, spanning across the East African Region. We welcome you to take advantage of our team of experts, consult on these critical family issues, and learn how to better protect your proprietary interests in your family. Should you have any questions regarding the subject of establishing a blind trust or a family trust, or related topic, please do not hesitate to contact us on law@cmadvocates.com or dgichuru@cmadvocates.comContact Persons & Contributors
Dianah Gichuru- Partner & Head of Unit Shalma E. Maina – Associate Brian Okwalo- AssociateDisclaimer
This article is for informational purposes only and should not be construed as legal advice.Related blogs & news
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