Different laws and rulings have set precedence for the country's policies regarding marriage and sharing of matrimonial property.
Ratification of the rules follows numerous cases filed by disgruntled partners and struggle for a share of property acquired during a union between spouses.
In one landmark ruling, High Court’s Family Division, sitting in Mombasa on Wednesday, December 28, established that a woman was entitled to a share of her deceased husband's estate for cohabiting with him for over five years.
The judgment swayed in the woman's favour despite failing to prove the existence of marriage under Kamba customary law.
Justice John Onyiego's ruling set the precedent for come-we-stay relationships, whereby couples cohabiting for over five years could amount to marriage.
Onyiego quoted Section 3(5) of the Law of Succession Act, to grant the woman equal share with the deceased first wife an equal share of the matrimonial property.
In another ruling, Justice Maureen Odero found that although there was little to prove that the man had paid dowry, his actions, which included introducing himself to the woman’s family and living with her for seven years, amounted to marriage.
The disgruntled man had asked the court to nullify the possibility of a marriage situation, as he neither paid a dowry nor bore any children with the estranged woman.
The court, however, found that the duo presented themselves as a married couple, with the woman having even assumed his name as a surname.
"The period of cohabitation being seven years, in my view, leads to a presumption of marriage. This was not a fleeting love affair," the judge stated.
Odero's judgment, however, differed from Justice Chacha Mwita's verdict issued in 2020.
In Mwita's verdict, he ruled that living in a man's house is not proof of marriage. He added that bearing a man's name on an ID is not a guarantee of marriage.
The man denied marrying the woman, arguing that she was only a friend he allowed to live in his house. The woman had moved to court seeking a share of the house and other properties, which she argued the man acquired while staying together.
"It is clear to this court that the plaintiff made a faint attempt to get from the defendant what she was not entitled to," the judge ruled.
In another ruling, High Court offered an in-depth explanation of factors to consider while presiding over matrimonial property disputes and declared that housewives should be paid.
In September 2021, Justice Teresiah Matheka, while presiding over a similar case, stated that it is unfair for courts to rule that housewives did not contribute anything to the family's financial progress.
“It is easy for the spouse working away from home and sending money to lay claim to the whole property purchased and developed with that money by the spouse staying at home and taking care of the children and the family. That spouse will be heard to say that the other one was not employed so they contributed nothing."
"Raising children is a full-time job that families pay a person to do. Cooking and cleaning as well. Hence, for a woman in employment who has to balance childbearing and rearing this contribution must be considered," the Judge stated.
With different cases being filed, the interpretation of the law is set to further influence laws on sharing of property and marriage.
They introduce different clauses to the Marriage and Succession Act which are then alluded to while making other judgments.
