The Court of Appeal has ruled that no partner in a marriage is automatically entitled to half of the property after a divorce.
The ruling, which has set aside a determination of a lower court, sets precedence for cases involving the sharing of property in divorce matters.
The three-judge bench of Justices Hannah Okwengu, Patrick Kiage and Sankale ole Kantai found fault in a high court ruling where a woman was awarded 50% of the family property in Kenya.
The judges stated that Article 45 (3) of the constitution did not expressly give spouses equal share to the matrimonial property upon the dissolution of a marriage.
“The stated equality is to ensure that both parties at the dissolution of marriage get their fair share of the property.
"This has to be in accordance with their respective contribution. It does not involve denying a party their due share by giving such party more than he or she contributed,” they noted.
The bench further directed the case back to the Family Division to be heard afresh by another judge.
The case was filed by a woman only identified as BMM in 2013, seeking a share of properties from her ex-husband EGM whom she had been married to since 2001.
In her court submissions, BMM claimed to have made a direct and indirect contribution to the acquiring of the properties.
She claimed that they lived in the UK for 10 years where she supported her spouse as he got a new job adding that during her stay she got a job and paid school fees for the children.
Her earning, she stated, enabled EGM to save and acquire properties in both Kenya and the UK.
In response, EGM claimed that he bought the properties without BBM's financial input.
Upon hearing the matter, High Court Judge William Musyoki ruled that there was equal contribution by both parties.
