In their landmark decision, a five-judge bench ruled that the properties should be divided according to each partner’s contribution during the subsistence of their marriage, and that each partner must prove their contribution to enable a court to determine the percentage available to them.

“To hold that properties should be automatically shared at the ratio of 50:50 would bring huge difficulties within marriages and encourage some parties to only enter into marriages, comfortably subsist in it without making any contribution, proceed to have it dissolved then wait to be given 50% of the marital property,” ruled the judges.

Judges Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndungu and Isaac Lenaola issued the verdict in a case where Joseph Ombogi and Martha Bosibori were fighting for their matrimonial properties.

Ombogi and Bosibori were married in 1990, but the High Court declared their union irrevocably broken down in 2015 after they filed for divorce. Bosibori then sought 50% of the properties which included their matrimonial home, rental apartments, landed properties and a motor vehicle.

The High Court ruled she was only entitled to a 30% share of the matrimonial house and 20% of the rental apartments; the court denied her a portion of all other properties, saying she did not prove her share of contribution in acquiring them. Bosibori appealed to the Court of Appeal, where three appellate judges overturned the decision and ruled she was entitled to a 50% share of the matrimonial home and the rental apartments.

Ombogi turned to the Supreme Court, arguing that his estranged wife was not entitled to equal shares of the properties. The Supreme Court held that a spouse does not acquire beneficial interest in matrimonial property by fact of being married, and that specific contribution has to be ascertained to entitle such a spouse to a specific share.

“The equality provision in Article 45(3) of the Constitution does not entitle any court to vary existing proprietary rights of parties and take away what belongs to one spouse and award half of it to another that has contributed nothing to its acquisition merely because they were married,” ruled the judges.

The decision evoked mixed reactions among the Kenyan public, with some family lawyers arguing the courts should not only consider the monetary contribution when determining the shares each partner should get.

“Contribution should not be in terms of money and materials. Sometimes the woman contributes to the marriage through food, psychological and emotional support. The woman’s presence to take care of the home is what allows the man to acquire the property. This should be taken into consideration when determining her percentage,” said lawyer Dorine Kali.

Advocate Angela Mwadumbo agreed that the courts can do more by recognising the woman’s indirect contribution towards acquisition of properties and that the 50% share should not only be pegged on monetary contribution.

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