AN ANALYSIS OF DENIAL OF WOMEN'S RIGHTS, WITH REGARD TO ACCESS OF MATRIMONIAL PROPERTY IN KENYA MILDRED AOKO OKELLO 078741 Submitted in Partial Fulfilment of the Requirements of the Bachelor of Laws Degree, Strathmore University Law School. JANUARY 2018 1 ' t ' · Declaration I, MILDRED AOKO OKELLO, do hereby declare that this research is my original work and that to the best of my knowledge and belief, it has not been previously, in its entirety or in part, been submitted to any other university for a degree or diploma. Other works cited or refened to are Signed: ...... ... .... . This dissertation Supervisor. ........ ... .. ..... ..... .... ... .......... .... .... .... Date .... ?,9. /S.).lU.) .~ ........ . examination with my approval as University 2 Acknowledgements I acknowledge the astounding input of my supervisor, Mr. Smith Ouma. His criticism, counsel and guidance were highly valuable. I would also like to acknowledge my sister, Valerie Okello, a remarkable woman dedicated to female empowerment, and her support through the course of writing this paper. 3 Abbreviations 1. CEDA W- Convention on the Elimination of all forms of Discrimination against Women 2. KLR- Kenya Law Reports 3. MWP A - Married Women Property Act 4. No. -Number 5. SA- South Africa 6. UDHR- Universal Declaration of Human Rights 7. Vol.- Volume 4 List of Statutes Kenyan Legislations 1. Constitution of Kenya, 2010. 2. Judicature Act, Cap 3, Laws of Kenya. 3. Land Act, No.6 of2012. 4. Land Registration Act, No.3 of2012. 5. Marriage Act, 2014. 6. Married Women Property Act, 1882. 7. Matrimonial Causes Act, Cap 152, Laws of Kenya (repealed). 8. Matrimonial Property Act, 2013. International Instruments 1. African Charter on Human and Peoples Rights 2. East African Community Treaty 3. Universal Declaration of Human Rights List of Cases 1. Echaria v Echaria, Civil Appeal 75 of2001 2. Gissing v Gissing, [1970] 2 AllER 3. I vI [1971] EA 4. Karanja v Karanja [1975] KLR 5. Kivuitu v Kivuitu,[1991] KLR 6. Nderitu v Nderitu, Civil Appeal No. 203 of 1977 7. Pettitt v Pettitt, [1970] AC 5 Table of Contents Declaration .......... ... .. .......... ....... ....... ...... .......... ... ........ .... ......... .... ........... ... ...... ................ 2 Acknowledgements .... .... .. ....... ...... .... .. .... ........ .......... ........... ........ ...... ..... .... .. .. .......... ... ... 3 Abbreviations ... ........ ................. ...... ...... .... ....... .. .... ........ ..... ~ ... .. .... ......... ...... ............... ... . 4 List of Statutes .... ........ .. .. .... ... ... ..... .... ... ... ..... ............ ... ...... .............. .... .... ... ... .. ... ... ... ....... 4 List of Cases .. .... ........ .............. .... ... .. ..... .... .... ...... ...... .... ..... .. ... ... ...... ... .... .... .. ... ..... ....... ... 4 ABSTRACT ... ... .......... .. ..... ..... ....... ... ... ...... .... .. ... ....... .. ......... ......... ... ....... .............. ......... 8 Chapter One: INTRODUCTION TO THE STUDY ......... ...... ... ... ... ........... ....... ........ .... I I 1.2. Introduction ........ ..... . .. . ....... .. .. . .. . ................. .. . . ........... . ......... .. .. .. . . I I 1.2. Staternent of Problem . .. .... .......... ... ... ..... ... ... .... .... .. ..... .... .... ... .. ... .... ... ... .... ....... ...... . 12 1.3. Research Objectives ........................................................ ................ ..... .... .. .. ... ... .. ... 12 1.4. Research Questions .................... ....... ........... .... ...... .. ..... .... ... ....... ........... .. ...... .. ....... 12 I .5. Hypothesis .... ..... .. .. ....... .. .. ........ .... ..... ... ... ... ............ .. ....... .. .... .. ..... ....... ....... .. ............ 13 1.6. Literature Review ... .... .. .... ... ............. ..... ..... .. ... .. .......... .... ......................... ... .. ... .... ... . I 3 I . 7. Theoretical Frarnework .................... ........ .......... .. ... ..... ..... ..... .... .. ... .. ........ ... ... ..... .... 15 1.8. Research Methodology ... . .. ...... . ........ .... . . . . .. ... .. . . .. . . . ...... .. . . ....... . .. ... .. 16 1.9. Chapter Break-down . ....... . .. .. . . .......... .. . . .............. . ... . . . ... ..... . ... ... . .. .... 15 1.1 0. Timeline of Study . ... . . .......... ......... ....... . ..... . . . .. . . . ....... ... . . ... .... ........ 15 Chapter Two: ACCESS TO MATRIMONIAL PROPERTY BY WOMEN: THE HISTORY ...... .... .. .. ....... .. .. ...... .... .... ............ ....... ............ .. ...... .. .................. .... ........ ....... I6 2.1. Introduction ..... .......... .... .. ... ....... ...... ............... ... ... .......... ....... ..... .......... ..... ...... ........ . 16 2.2. History of Matrimonial Property ownership by women in Kenya .... . . . .. .. . ... . .. 16 2.3. Provisional Highlights of the MWPA 1882 . . ... .... . ...... . ..... ... ~ .. . .. . ...... . . ..... 19 2.4. Highlights of the MPA 2013 ...... ... . . .... ... . ... . .. . .. . ..... . ..... . .. . . .. ...... . .. ... ... 20 2.5 Conclusion .. . .... .. .. . .. . . . .... . . ... . ..... .... . .. .. .. .. ...... ........ ... . ...... . ....... . .. ... 22 Chapter Three: THE LEGAL RESPONSE TO ENIAL OF ACCESS TO MATRIMONIAL PROPERTY WITH REFERENCE TO STATUTE AND THE EFFECT ON SOCIETY ... ..... .... ....... .. ....... ....... .... ...... ..... ...... ............. ....... ... .... ........ .... .... ... .. ........ ......... .. 23 3.1. Introduction ... ........ ... ...... ...... ... ....... ...... ........ .. ..... .. .. ..... .... ....... .... ... ..... ..... ..... .... ....... 23 3.2. Legal response to denial of Matrimonial Property . . ... .. . ..... . .... .... .. . . .. . .... . ..... .23 6 3.2.1 The Constitution of Kenya ....... .... ....... ... ......... ... ..... ... .. . ............. . . . . . ... 23 3.2.2. MPA No. 49 of2013 ................................... .. ......... ..... ... ...... ... ... ..... . 24 3.3 . Jurisprudence from Courts ... ... ... .... ... ......... ... .................. .... ..................... .................. ... 28 3.4 Effects of the MPA on Kenyan society ........ ..... ............ .......... ....... .. ... ...... . 28 3.4.1. Concept of indirect contribution ... .. ...... . ...... . . . .. ....... ............. ...... .... . ..... 28 3.4.2. Pre-nuptial agreements ................... ....... : ..... ....... ....... . ... . ..... .............. 29 3.4.3. The MPA and Islam ................ . ...... . .. ... . .... . . .............. ... . .... ....... ........ 29 3.5. International Instruments .. ...... ............... ....... ......... .. ...... . ...................... 29 3.6 Conclusion ....... ......... .. . . ...... . ...... . . ... .. ... ...... ...... ...... ... . .......... .. ......... ~ I Chapter Four: A COMPARATIVE ANALYSIS OF TRANSFORMATION IN MATRIMONIAL ASSET DIVISION WITH REGARD TO SPECIFIC CASE LAW, CRITIQUING THE IMPLICATION ON WOMEN'S RIGHTS IN RECENT CASES 4.1. Introduction ........ . ... .... ........ . . . ...... .. ...................... ..... .. . . .......... .. . . ... ... 32 4.2. Influential Common Law and precedent .... .......... .... .. .. .............................. .32 4.2.1. Influence on Kenyan Interpretation ofMWPA today ......... .. ......................... 33 4.2.2. Confusion in the Kenyan interpretation ofMWPA ........................... .. ........ . .35 4.3 Lack of clarity in Kenyan Legislation ........ ........................... ..... ...... ........... 36 4.4. Conclusion ................. . .. .. .. ..... ................................. . ... . ...... .. ............ 37 Chapter Five: FINDINGS, RECOMMENDATIONS AND CONCLUSION ............... 38 5.1 . lntroduction ..... .................... ...... ............................................... .......... ............... .. .... ....... .38 5 .2. Findings ............ ......................................................... .......... ............................. .. .. ...... .... 3 8 5.3 . Recotnmendations .. ......... ............... ... ..... ........ ............................. ......... .. ............ ... ...... .... J9 5.4. Conclusion ....... ...... ... ........ .... .. ... ... ..... ... .... ........... ... .. ... ... ............................ ... ...... ..... ...... .39 BIBLIOGRAPHY AND SELECTED READINGS ............. ...... ...... ... ..... .. ...... .......... ........... .40 7 Abstract Since time immemorial, there has been an imbalance in women's and men's rights with regard to division of matrimonial property in Kenya. This study delves into the protection of women' s rights to matrimonial property upon the dissolution of a marriage. The starting point of the study is the history, and what property rights were enabled to each back then, versus now. As the study is relevant to Kenya, Kenyan law and common law will be evaluated. By way of case law, the study examines how women' s rights to matrimonial property are protected by the statutory provisions in Kenya, and how adequate these are. 8 CHAPTER ONE INTRODUCTION TO THE STUDY 1.1 Introduction Matrimonial property is that which is owned by one or two individuals who are unified by marriage which, upon the application of one of the spouses to a court, is subject to division between them. 1 Matrimonial property" means the matrimonial home, household goods and effects in the matrimonial home, or any movable or immovable property jointly owned and acquired during the marriage.2 Trust property, including property held in trust under customary law, does not form part of matrimonial property.3 For centuries, inequality has prevailed amongst women accessing matrimonial assets, especially after marriage ends. Be it from1872 , with the onset ofthe Married Women's Property Act, or currently, the Matrimonial Property Act of 2013 in Kenya, there have been positive developments that enable women to now access matrimonial property if a union is to come to an end. Before the adoption of Kenya's Constitution in 2010, case law held that at separation or divorce, property was to be distributed in proportion to a spouse's monetary contribution to that property.4 The Constitution gives every person the right, either individually or in association with others, to acquire and own property.5 The Constitution also protects equality within a marriage stating that parties to a marriage are entitled to equal rights as at the time of the marriage, during the marriage and at the dissolution of the marriage.6 Fmiher, the Constitution requires Parliament to enact legislation to regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage. 1Kanabbiran K, Women and Law: Critical Feminist Perspectives, SAGE Publications India, 2013,37 2Matrimonial Property Act S2(1) 3 Matrimonial Property Act S2( I) 4Matrimonial Property Act S7 5Constitution of Kenya Ch 4. Part 2( 40)( I) 6Constitution of Kenya Ch 4. part 2( 40)( I) 9 I Ownership of matrimonial property vests in the spouses according to the contribution of either party towards the acquisition of that property, for instance if one purchased a car, they are technically entitled to that car upon divorce. This line of reasoning severely discriminated against women, who generally did not provide monetary contributions to the property, but provided labour and child care and typically were not involv.ed in investments made during the marriage7. However, despite this evolution, there are still many cases in Kenya where women are denied the right to access matrimonial property if the union ends, or where a husband is deceased. Multiple cases display a judicial philosophy that may still hinder access to matrimonial property for women in Kenya. 8 1.2 Statement of problem In Kenya, women still have great difficulty accessing matrimonial property upon divorce. This is despite judicial reform and advancement in judicial philosophy that currently facilitates equality of women and men in the event of a concluded marriage. Evidence of this can be seen in past and more recent case law such as Peter Mburu Echaria vs Priscillah Njeri Echaria9 inter alia. 1.3 Research objective This paper aims to achieve the following:- 1. To highlight the flaws of the legal systems in Kenya which are to blame for the discrepancy with regard to women's rights to matrimonial property in Kenya. 2. To examine customary law's provisions regarding division of matrimonial property so as to illustrate the root of the problem where women are denied the right to access of matrimonial property. 7IMPOWR.org: Current Legal Framework: Marital assets and property in Kenya 2014, 5 8KAS v MMK [2015] Mombasa Divorce Case No. 45 9 Peter Mburu Echaria vs Priscillah Njeri Echaria [2007} eKLR 10 3. This paper will also seek to elucidate improvements that have been made, and more that still need to the relevant provisions of the law in order to tackle the problem of women being denied the access to matrimonial assets in Kenya. 4. This paper also seeks to outline the evolution of women's rights to Recess to matrimonial property according to Common Law, and provide a ·comparative analysis of other places that have put the provisions into effect, vis a vis the situation in Kenya currently. 1.4 Research questions This research attempts to answer the following questions:- a) How has customary law hindered women 's rights to matrimonial property in Kenya? b) How has the judiciary attempted to bridge the gap of gender inequality in cases of division of matrimonial property? c) Are there any other mechanisms to address the issue of sharing of 1uatrimonial property upon divorce ifthe existing laws are deemed inadequate? d) What is the impact of the Matrimonial Property Act, 2013 on the current situation in Kenya, with regard to denial of access to matrimonial property for women? e) What remedies have been provided in cases where customary law has hindered women's rights to matrimonial property? 1.5 Hypothesis In answermg the above enumerated questions, this research relies on the following assumptions;- i) There are numerous laws dealing with sharing of matrimonial prope1iy but it is clear that there is inequality in the sharing of property upon di vorce . . 11 ii) Women's rights are overlooked when it comes to sharing of matrimonial property and there definitely is a need to amend the laws or enact other laws that deal with sharing of matrimonial property upon divorce. iii) Customary law has a huge role to play in the hindrance of women's access to matrimonial property in Kenya, despite the fact that the Constitution of Kenya, 20 1 0 guarantees the equal protection of property rights for men and women. 1.6 Literature review This research does not present itself as a pioneer in the issues involving the subject of gender disparity in the access of matrimonial assets in Kenya, nor does it seek to be the first to extensively study the concept of denial of access to marital property in Kenya. Indeed, there are numerous distinguished scholars and researchers who have undertaken and written extensively on this subject. Similarly, there are various local and international instruments that elucidate the issue at hand 10. J.D. Ochieng' states that women are mostly the victims when it comes to the sharing of matrimonial property upon divorce. 11 The inequality in the sharing of such property is attributed to several factors ranging from social, cultural, religious, political and constitutional In order to give a background to the issue, customary law will also be discussed , not only will the provisions of customary law be explored 'but literature such as Customary Law Jurisprudence ji-om Kenyan Courts: Implications for Traditional Justice System/ 3will also be used. This literatme will introduce the concept of customary law in Kenya, how it is still in 100chieng,J.D. The Legal Framework Governing the division o.f Matrimonial Property in Kenya,20 13, 15 11 0chieng,J.D. The Legal Framework Governing the division of Matrimonial Property in Kenya.2013. 7 120chieng,J.D. The Legal Framework Governing the division o.f Matrimonial Properly in Kenya,20 13, 7 ' · 1Karfukl, !"., 'Custom my Law Jurisprudence from Kenyan Courts: Implications for Traditional Justice Systems'. Workingpaper, StrathmoreUniversity (20 15), 3 12 use and the contribution it makes towards the aforementioned issue regarding women's rights to property in matrimony. International law also highlights this. Kenya is party to six of the seven core UN human rights treaties, with the exception being the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 14 Consequently this research paper strictly focuses on specific treaties that give provision against discrimination of women. These are the International Covenant on Economic, Social and Cultural Rights 15 and Convention on the Elimination of all forms of Discrimination Against Women. 16 Under international human rights law, women have a right to own and administer property without discrimination. 17 There are numerous cases where the disparities between men and women's rights to matrimonial property are highlighted. Such landmark cases in Common Law of Gissing v Gissing18, more locally Karanja vs. Karanja19and Beatrice Wanjiru Kimani v Evanson Kimani Njoroge20 will be used in illustrating the background of this paper. There are more recent cases, such as Peter Mburu Echaria vs Priscillah N,jeri Echaria21 and the case of Milcah Municah Munoko v Lawrence Ochokolo Oduma22 which shall also be used in order to demonstrate whether the problem still persists today, or whether the law and judicial attitude towards the problem have progressed. The implications of these cases are that they act as precedents that shape the past, present and future of the fate of women seeking rights to matrimonial property in Kenya. 140chieng, J.D. The Legal Framework Governing the division of Matrimonial Property in Kenya,2013, 16 15 ICESR 1996 16 CEDA W 1979 17 Universal Declaration of Human Rights 1948 18 Gissing v Gissing (197 1) AC 886 19Karanja vs. Karaf!fa[ 1976] KLR 307) 20 Wanjiru Kimani v Evanson Kimani Njoroge [I 998] civil appeal 79 of97 21 Peter MburuEcharia vs PriscillahNjeriEcharia[2007} eKLR 22MilcahMunicahMunoko v Lawrence Ochokolo0duma[20 16] eKLR 13 I I I I Statutes and case law are not the only sources of law with respect to women's marital property interests. Kenya has a large and diverse array of ethnic groups, many of which follow their own customary law. According to the Combined Fifth and Sixth Periodic Reports of States Parties to the Committee on the Elimination of Discrimination Against Women, not all but many, customary laws are disadvantageous to women in respect of property rights and inheritance. Under the customary law of most ethnic groups in Kenya, a woman cannot inherit land, and must live on the land as a guest of male relatives by blood or marriage23 1. 7 Theoretical framework Few concepts are frequently invoked in contemporary political discussions as human rights. This human rights theory posits that every person has rights inherent to all human beings regardless of their nationality, sex, national or ethnic origin, colour, religion, or any other status.24 Every human being is equally entitled to their human rights without discrimination. These rights are interdependent and indivisible. The human rights theory draws heavily from natural law and natural law thinkers. This theory was developed by classical Greek philosophers, such as Aristotle. One of the approaches to human rights theory holds that human rights exist in order to protect the basic dignity of human life and invokes the notion of striving for the dignity t~at makes human life worth living. This is affirmed in the United Nations Declaration on Human Rights and the writings of Jack Donnelly.25 However, the inherent weakness of this approach lies in trying to identify the nature of this dignity. Dignity is a very elastic concept and if human rights are meant to be universal standards then the inherent dignity that is supposed to be 23 Combined Fifth and Sixth Periodic Reports ofStates Parties to the .Committee on the Elimination of Discrimination Against Women (39th Sess. , 2007), para. 10, U.N. Doc. CEDA W/C/KEN/6 (Oct. 16, 2006), http://www.un.org/womenwatch/daw/cedaw/39sess.ht 24 Accessed from accessed on 17/1 /2017 25 Donnelly, Universal Human Rights in Theory and Practice, Ithaca: Cornell University Press, 1989, 17. 14 I protected should be common. Without this commonality, dignity cannot suffice as the ultimate goal of human rights?6 Respecting dignity entails respecting the rights of women to access what they rightfully should, which, in this paper, is matrimonial prop~rty. The freedom from discrimination is widely accepted as a human right. This is envisaged in the Constitution of Kenya which stipulates that everyone is equal before the law and has the right to equal protection and equal benefit of the law.27 This embodies the theory of equality. The Constitution further states that the state shall not discriminate directly or indirectly against another person on ground of races, gender, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth?8 In this context, emphasis is placed on gender as it is often women who face discrimination when it comes to the right being discussed. In the Kenyan context, positive laws have been put in recognizing this freedom. It is further backed by international law which provides for human rights. 29 However, vvhere natural law and human rights thinkers see this right as unalienable, positive law does not consider this freedom absolute and provides for its limitation in as far as it is reasonable and justifiable in a democratic society. 30 Various principles such as human dignity and freedom should be considered when limiting these freedoms. Furthermore, relevant factors must also be taken into account such as the purpose, nature and extent of the limitation.31In this context, the limitation is on the right to access of matrimonial property for women. Thus, this paper will look at the law on the denial of women to the access of matrimonial property, the international context and the legal responses that are necessary to curb it. Not only will this work seek to answer the research questions, it will elucidate the theories of 26 Accessed from accessed on 17/ 1/2017 27 Article 27(1) ,Constitution of Kenya (20 I 0) 28 Article 27(3), Constitution ofKenya(2010) 29 Article 18, Universal Declaration of Human Rights (1998) 30 Article 24(1 ),Constitution of Kenya(20 I 0) 31 Article 24( 1) (b) and ( c ),Constitution of Kenya (20 I 0) 15 human rights, equality and of dignity as these are theories that can be linked to the manner in which women are treated in the event of matrimony or its end. 1.8 Research methodology This paper is based on the collection of qualitati.ve data obtained from secondary and tertiary resources. These include but are not limited to, analysis of information from online resources, journals and articles, reports from relevant organizations, text books, case law, news articles, and statute. Further, works by scholars, professionals and commentaries by those with vast knowledge in the appropriate fields applicable will be used and cited. The choice of research methodology which, as mentioned, will entail utilizing the Married Women' s Property Act, Matrimonial Property Acts of 1882, 1984 and 2013 , defines the scope and will provide a comparative analysis that will serve to display how drastically times have changed, and how Kenya can ensure that flaws in this area of law can be avoided when women seek to exercise their rights to matrimonial property. There are numerous cases that will be analysed, such as landmark cases in Common Law of Gissing v Gissing. 32 more locally Karanja vs. Karanja33and Beatrice Wanjiru .Kimani v Evanson Kimani Njoroge. 34 There are more recent cases, such as Peter Mburu Echaria vs Priscillah Njeri Echaria35 and the case of Milcah Municah Munoko v Lawrence Ochokolo Oduma36 which shall also be analysed. In order to demonstrate whether the problem still persists today, or whether the law and judicial attitude towards the problem have progressed . 1.9 Chapter break- down 32 Gissing v Giss ing (1971) AC 886 33 Karan} a vs. Karan} a[ 1976] KLR 307) 34 Wa f!jiru Kimani v Evanson Kimani Njoroge [1998] civ app 79 of9? 35 Peter Mhuru Keharia vs Pri.w:;il/ah/l{iariEclwria[2007} oKLR . 36Milcah Municah Munoko v Lawrence Ochokolo0duma[20I6] eKLR 16 The research will be broken down into five chapters. Chapter one is the introduction which comprises the background of the research laying out the research objectives, methodology as well as literature review. Chapter two seeks to handle the history regarding the subject of women's access to matrimonial propetty in a customary law setting, and in common law .. Chapter three will explore the legal responses to denial of access to matrimonial assets with reference to statute, legal instruments and case law, and their implications in society. Chapter four tackles the comparative case study, jurisprudence and findings/evidence of different cases Chapter five concludes the entire work and provides recommendations whilst trying to include ameliorations that ought to be made in order to curb flaws in the legal system that hinder this important right to access of matrimonial property. 1.10 Timeline of the study Chapter Research Period Due date Chapter 1 5/2017 6/2017 Chapter 2 8/2017 912017 Chapter 3 912017 10/201 7 Chapter 4 11/2017 11/2017 Chapter 5 12/2017 1/2018 17 CHAPTER TWO ACCESS TO MATRIMONIAL PROPERTY BY WOMEN: THE HISTORY 2.1 Introduction Women's access to land and housing are an important development issue. Secure property rights for women can have an impact on intra-household decision making, income pooling, and women's overall role and position in the community.37 Moreover, land is a particularly critical resource for a woman when the household breaks down; for example, in the event of migration, war, abandonment, divorce, polygamous relationships, illness, or death.38 As a cornerstone of development, secure land ownership confers direct economic benefits as a key input into agricultural production, income from rental or sale, and as collateral. However, women may not fully participate in these benefits as members of a household if they do not share formal , or customarily recognized property rights over the land and/or housing.39 This chapter looks at the history behind access to matrimonial property by women and the law thereof in a customary and in common law settings. 2.2 The History of Matrimonial Property Ownership by Women in Kenya The law on matrimonial property hitherto was governed by the English Married Women's Property Act of 1882. This statute was passed with the intention of reducing the legal inequalities that had existed between men and women.40 Under the provisions of the Act, man-ied women had the same rights over their property as unman-ied women. The Act therefore allowed a married woman to retain ownership of ante-nuptial property and to keep J 7US Agency for International Development, Study on Women and Property Rights: Project Best Practices, October 2006 at I . 38 US Agency for International Development, Study on Women and ProperO' Rights: Pro./ect Best Practices, at I. 39 US Agency for International Development , Study on Women and Property Rights: Project Best Practices at 1. 40 US Agency for International Development , Study on Women and Property Rights: Project Best Practices at 1 18 separate ownership of property acqui~ed during the marriage. 41 Previously, this property would automatically have become the property of the husband. The Act provides that "in any question between husband and wife as to the title or possession of property, either of them may apply to the High Court or a county court a,nd the judge may make such order with respect to property in dispute ... . As he thinks fit."42 It was at one time thought that power given to a judge in this section to make such orders as he thinks fit provided statutory justification for doing what was thought to be just between the parties without having regard to the technicalities of property law. 43 However this changed in 1965. Previously, courts would rely on section 17 to vary property rights in matrimonial property but after 1965 in the National Provincial Bank v. Ainsworth44 the House of Lords was of the opinion that section 17 only provides a method or a summary procedure for determining proprietary rights between spouses but the courts cannot vary those rights using section 17. Courts cannot confer rights which were previously not there. In this case the husband had deserted the wife and it was conceded that she had a right to be provided with housing by her husband under what was known as the deset1ed wife's equity. It was also conceded that she could have obtained an injunction from the. court to stop the husband from interfering with her rights to housing. However, the husband had mortgaged the house without her knowledge and he subsequently became insolvent. The House of Lords held that her right to housing was not a proprietary right within the meaning of section 17 and therefore was incapable of binding the bank to which the house had been mortgaged. In other words, the wife was relying on section 17 to fight the bank interest in the house but it was held that her rights could not qualify. 4 1 Section I, The Married Women's Property Act ( 1882) 42 Section 17, Married Women's Property Act, (I 882) 43 Onyango E.J, The Development Of Married Women 's Rights In Property In Kenya: 1'l1e Matrimonial Property Act of2013 (No. 49 Of2013) ' 2014, 6. 44National Provincial Bank v. Ainsworth [ 1965] AC 1175. 19 As a result of this, the law in England was changed in 1970 under the Matrimonial Property and Proceedings Act of 1970. Under Section 3 7 it is provided that where a husband or wife contributes in money or money's worth to the improvement of real or personal property in which either or both of them have a beneficial interest, the husband or wife so contributing shall if the contribution is of a substantial nature be treated as having then acquired by virtue of his/her contribution a share or an enlarged share as the case ri1ay be in that · beneficial interest. The important thing is that this section recognizes indirect contributions to the property. Trevelyan J in the authority of I v f 5 declared that the MWP A was applicable in Kenya by virtue of it being a statute of general application in England on 12 August 1897. This therefore was adopted into Kenya the common law of property between spouses that had been developed in England over decades. In as much as the decision in I v f 6 settled the application of the MWP A in Kenya, it is the decisions in Petit v Petit47 and Gissing v Gissinl8 that effectively settled the principles to be applied in an application of the MWP A. In Petit, it was decided that Section 17 of the MWP A was merely a procedural provision and did not entitle the Courts to vary the existing rights of parties.49 Gfssing. then devclopcc'l the ratio in Petit, and opened the way to pleading resulting, implied or constructive trusts in a MWP A application. This Act applied to all Kenyan matTiages regardless of the regime under which the marriage was conducted in. This included the marriages that were conducted under the Customary or Muslim law. 5° 45 /v/[1971] EA276. 46 / v /[1971] EA276. 47 Pettit v Pettitt [ 1969] All ER 2. 48Gissing v Gissing [ 1970] 2 All ER 780. . 49 This was after Lords made a survey of numerous decisions ofthe English Court of Appeal ofthe previOus two decades in which the beneficial interests of spouses in a former matrimonial home had been the subject of consideration not only in MWPA applications but in other types of proceedings. 5° Customary Jaw marriages as in the case of Karanja v. Karanja (1976) I KLR 389 and in Muslim marriages as in the case of Am ina 0 Abdulkadir v Ravindra N. Shah Alias Raveen Mohamed Nashri (2006) eKLR 20 In Kenya under this law, there existed intricate and contradictory court decisions relating to the rights of women in customary law marriages, joint properties, and land solely registered in the husband's name when even the wife has contributed. Even as such, there existed various family laws that were scattered in different statutes depending on the rac·e and religion of a Kenyan. The Matrimonial Causes Act, 51 The Marriage Act,52 The Mohammedan Marriage Divorce and Succession Act,53 The Hindu Marriage and Divorce Act, 54 The African Christian Marriage and Divorce Act, 55 were still on the statute book, alive and kicking and in the process creating havoc in the matter of personal laws until the Marriage Act 2014 which is preamble as an Act of Parliament to amend and consolidate the various laws relating to marriage and divorce and for connected purposes was enacted. This Act repealed The Marriage Act Cap 150; The African Christian Marriage And Divorce Act Cap 151 ; The Matrimonial Causes Act Cap 152; The Subordinate Court (Separation and Maintenance) Act Cap 153; The Mar1 Marriage And Divorce Registration Act Cap 155; The Mohammedan Marriage Divorce and Succession Act Cap 156; and The Hindu Marriage and Divorce Act Cap 157. The courts have from time to time in determining issues of this nature urged the legislature k1 enact a law to govern this critical subject. This has been the case in the Kivuitu vs. Kivuitu56 and Echaria vs. Echaria57 cases. As envisaged under the Matrimonial Property and Proceedings Act of 1970 under its Section 37, in determining how matrimonial property is to be divided, the courts have always considered the contributions made by the claiming spouse and fairness. These ccmtriht11ions 5 1 The Matrimonial Causes Act (1931) 52 The Marriage Act ( 1902) 53 The Mohammedan Marriage Divorce and Succession Act ( 1920) 54 The Hindu Marriage and Divorce Act (1960). 55 The African Christian Marriage and Divorce Act ( 1977) 56 Kivuitu vs. Kivuitu [ 1991] Kenya Appeal Reports 241. 57 Echaria v Echaria [2007] eKLR Nairobi Civil Appeal No. 75 of 2001. 21 can either be direct or indirect. Direct contributions are actual monetary contributions towards the acquisition of these family assets. Indirect contributions range from one being a good spouse to taking care of household expenses as the other spouse accumulates or saves money to buy the famil y assets. The court in Echaria vs. Echaria58 opined that one has to prove contribution in order to get a share of the matrimonial property to enable the court to determine the level of contribution of the alleging party, so as to be able to divide the propetiy equitably. It is very difficult for one to prove indirect contribution, and the extent to which one contributed to the acquisition and the improvement or development of matrimonial propetiy. 59 It is impmiant and imperative to note that Kenya was still relying on section 17 of the Marri..:J Women Property Act before the enactment ofthe Matrimonial Property Act of2013 as upheld in the decision of National Provincial Bank v Ainsworth60 that it does not confer jurisdiction on the court to vary title but only to determine rights in matrimonial property. 2.3 Provisional Highlights of the Married Women's Property Act of 1882 The MWPA allowed women to hold property separately from their husbands. 61 This included any wages, earnings, money, and property so gained or acquired by her as aforesaid.62 This basically means that any property acquired after the Act by a woman married before the Act will be held by her as feme sole. 63 A married woman shall also be capable of entering into and rendering herself liable in respect of and to the extent of her separate property on any contract, and of suing and being sued, either in contract or in tort, or otherwise, in all respects as i£. she were a fem e sole, and her 58 Echaria v Echaria [2007] eKLR Nairobi Civil Appeal No. 75 of 200 I 59 Onyango E.J, The Development Of Married Women 's Rights In Property In Kenya: The Matrimonial Property Act of2013 (No. 49 Of2013) ' 2014, 6. 60 [1965] AC 1175 . 61 Section I (I), The Married Wom en 's Property Act (1882) 62Section 5, The Married Women 's Property Act ( 1882) 63 Section 5, The Married Woh1 en 's Property Act ( 1882) 22 I husband need not be joined with her as plaintiff or defendant, or be made a party to any action or other legal proceeding brought by or taken against her; and any damages or c·osts recovered by her in any such action or proceeding shall be her separate property; and any damages ~r costs recovered against her in any such action or proceeding shall be payable out of her separate property, and not otherwise.64 Every contract entered into by a married woman shall be deemed to be a contract entered into by her with respect to and to bind her separate property, unless the contrary be shown. 65 Every contract entered into by a married woman with respect to and to bind her separate propetiy shall bind not only the separate property which she is possessed of or entitled to at the date of the contract, but also all separate property which she may thereafter acquire. Every married woman carrying on a trade separately from her husband shall, in respect of her separate property, be subject to the bankruptcy laws in the same way as if she were a feme sole.66 A woman after her marriage shall continue to be liable in respect and to the extent of her separate property for all debts contracted, and all contracts entered into or wrongs committed by her before her marriage, including any sums for which she may be liable as a contributory, either before or after she has been placed on the list of contributories.67 Under section 18, married women can be an executrix or a trustee of an estate and she can perform the duties of a trustee or an executrix as provided for by the law of succession. 68 The legal personal representative of any married woman in respect of the Married Women's Property Act shall in respect of her separate estate have the same rights and liabilities and be 64 Arika Oyuga A, ' An appraisal of the Matrimonial Property Act, 2013 ' Unpublished Research submitted in partial fulfilment of the requirement for the award of the Bachelor of Laws (LL.B) Degree of Moi University 2015. 65 Section 1(2) The Married Women's Property Act (1882) 66 Arika Oyuga A, ' An appraisal of the Matrimonial Property Act, 2013' Unpublished Research s.ubm!tted. in partial fulfilment of the requirement for the award of the Bachelor of Laws (LL.B) Degree of M01 lJmverstty 2015. The author provides the meaning of :feme sole ' as a single woman, taken o. include unmarried women, widows, divorcees, and married women living independently and separately rrom thetr husbands . 67 Section 13 , The Married Women 's Property Act (1882) 68 Section 18 The Married Women 's Property Act (1882) 23 subject to the same jurisdiction as she would be if she were living. 69 The lacunae in law and the ambiguities in the existing law saw the need to enact a better legislation- the Matrimonial Prope1iy Act, 2013 . 2.4 Highlights of the Matrimonial Property Act, 201370 The Matrimonial Property Act is an Act of Parliament to provide for the rights and responsibilities of spouses in relation to matrimonial prope1iy and for connected purposes. The Act extinguishes the provisions and the operations of the MWP A. 71 This Act exempts persons who profess the Islamic faith from its provisions. Such persons are to be governed by the Islamic law. 72 Of keen interest is the distinction of what constitutes matrimonial prope1iy. The interest of any person in any immovable or movable property acquired or inherited before marriage shall not form part of the matrimonial property. 73 Matrimonial property includes:~ the matrimonial home or homes; 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 man·iage. 74 The Act further exempts trust property, including property held in trust under customary law, as not being pati of matrimonial property.75 Equally, parties to an intended marriage may enter into an agreement before their marriage to determine their property rights 76 and a party to such an agreement may apply to the Court to set aside the agreement and the Court may set 69 Section 23 , The Married Women 's Property Act (1882) 70 Matrimonial Property Act, (2QI3) (No. 49 of2013) 71 Section 19, Matrimonial Property Act (20 13) 72 Section 3, Matrimonial Property Act (2013) 73 Section 5, Matrimonial Property Act (2013) 74 Section 6. Matrimonial Property Act (20 13) 75 Section 6(2), Matrimonial Property Act (20 13) 76 Section 6(3), Matrimonial Property Act (20 13) 24 aside the agreement if it determines that the agreement was influenced by fraud, coercion or is manifestly unjust. 77 Acquisition of interest in property by contribution is now statutorily provided for. Where one spouse acquires property before or during the marriage and the property acquired during the marriage does not become matrimonial property, but the other spouse makes a contribution towards the improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made.78 Consideration of customary law principles is also evident in this Act. The following principles of customary law shall apply in the division of matrimonial property- The customary law relating to divorce or dissolution of marriage; the principle of protection of rights of future generations to community and ancestral land as provided for under Article 63 of the Constitution; and the principles relating to access and utilization of ancestral land and the cultural home by a wife or wives or former wife or wives. 79 Lastly, the position regarding gifts in a maniage is now settled in the following terms:-" there shall be a rebuttable presumption that the property thereafter belongs absolutely to the recipient. "80 2.5 Conclusion The enactment of the MPA 2013 was a response to a long-standing issue. Thi s came after many years of a struggle to have a new matrimonial property legislation that was aw~ke to the societal developments that have taken place. It was prudent that we have a good law that would promote the principle of equality, and help bring consistency in the courts decisions as regards the issues of distribution ofmatrimonial property.81 77 Section 6(4), Matrimonial Property Act (2013) 78 Section 9, Matrimonial Property Act (20 13) 79 Section I I, Matrimonial Property Act (20 13) 80 Section 15 , Matrimonial Property Act (20 13) . 81 For example, the courts have given out conflicting jurisprudence with regard to contribution of a spouse in the detennination of proprietary rights in matrimonial property. In the case of Kivuitu v Kivuitu [ /991} 2 KAR 241 , 25 There had been a need to have legislation addressing legal gaps and to set guidelines for the division of property. New legislation needs to include clear rules for the division of matrimonial property at separation or divorce; and, a framework requiring spousal consent f()r particular transactions involving matrimonial property. 82 Gaps in divorce law would limit women from equally sharing property at the dissolution of marriage. At separation or divorce, Kenyan women rarely take away their equal share. Further, the tradition of registering property, including matrimonial property, solely in the name of the husband becomes a serious obstacle when women sought to lay daim in the matrimonial property accrued during the subsistence of their union. Clearly, the law lacked guidance on the division of matrimonial property. 83 the court held that indirect contribution of women should be taken into account when dividing matrimonial property. Yet, in the case of Echaria v Echaria [2007} eKLR, the comt stepped away from the decision in Kivuitu v Kivuitu and held that indirec;t contributions didn't suffice. 82 Arika Oyuga A, 'An appraisal of the Matrimonial Property Act, 2013' Unpublished Research s.ubm.itted. in partial fulfillment of the requirement for the award of the Bachelor of Laws (LL.B) Degree of Mot Umverstty 2015, 10. . . . 83 Arika Oyuga A, 'An appraisal of the Matrimonial Property Act, 2013 '. Unpublished Research s.ubm.ttted .m partial fulfillment of the requirement for the award of the Bachelor of Laws (LL.B) Degree of Mot Umverstty 2015, 10. 26 CHAPTER THREE THE LEGAL RESPONSE TO DENIAL OF ACCESS TO MATRIMONIAL PROPERTY WITH REFERENCE TO STATUTE, LEGAL PROVISIONS, AND THEIR EFFECTS ON SOCIETY 3.1 Introduction The conversation around the drafting and eventual promulgation of the Constitution of Kenya 2010 has breathed a wind of legal transformation from the old order to a new era where human rights are firmly enshrined in the Bill of Rights. The Constitution of Kenya 2010, the Matrimonial Property Act No 49 of 2013 and various international instruments attempt to comprehensively codify the rights and responsibilities of spouses in relation to matrimonial property during and at the time of dissolution of a marriage. 84 This chapter explores the responses to denial of access to matrimonial properiy with reference to legal instruments, and its effects in the society. 3.2 The Legal Responses to Denial of Matrimonial Property 3.2.1 The Constitution of Kenya 2010 The Constitution is the grundnorm in the hierarchy of laws in Kenya. 85 Any law that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid. 86 Article 10 of the Constitution of Kenya 2010 is the lens through which the Constitution js interpreted and appreciated. In particular, the article provides: The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets this Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions. 84 Onyango E.J, The Development Of Married Women 's Rights In Property In Kenya: The Matrimonial Property Act of2013 (No. 49 Of2013)' 2014,6 85 Article 2( I), Constitution of Kenya 20 I 0. ~" Article 2(4) Constitution of Kenya, 2010 27 The national values and principles of governance include; patriotism, democracy and participation of the people; human dignity, equity, social justice, inclusiveness, equality, protection of the marginalized; and sustainable development. The right to equal matrimonial property enhances human dignity of the parties to a marriage87• The right to equality of parties to a marriage from the time of, during and at the dissolution thereof is inviolable.88 Its limitation is subject to the provisions of article 24 of the Constitution. 89 The equality of parties before the law and the in the temple of justice is guaranteed under article 27(1) of the Constitution. Equality before the law includes the full and equal enjoyment of all rights and fundamental freedoms. 90 Most importantly is the right under article 27(3) to the effect that women and men have the right to equal treatment, including the right to equal oppmi unities in political , economic and social spheres91 • The right to equal share of matrimonial property is categorized under economic, cultural and social spheres. It is economic in the sense that upon the dissolution of a marriage, the patties need financial stability to continue with their daily lives without it affecting them adversely be it socially or economically92. Equally, despite the dissolution of the marriage, issues to the marriage will in most occasions be in dire need of financial support hence the need for access to the matrimonial property. 87 A Feminist Critique of the new Famiy laws in Kenya, https://www.academia.edu/8462856/A_Feminist_Critique_of_the_New_ Family_ Law_ Regime_in_ Kenya, accessed on 20th October 2017 88 A Feminist Critique of the new Famiy laws in Kenya, https://www.academia.edu/8462856/ A _Feminist_ Critique_ of_ the_ New _Family_ Law_ Regime _ in_ Kenya, accessed on 20th October 2017 89 Article 24 ( 1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law 90 Article 27(2), Constitution of Kenya. 9 1 Article 27 (3), Constitution of Kenya 2010 92 A Feminist Critique of the new Famiy laws in Kenya. https: //www.academia.edu/8462856/ A _Feminist_ Critique_ of_the _New _ Family_ Law _ Regime _ in_ Kenya, accessed on 20th October 2017 28 Fm1her, the right to matrimonial property finds another backing in the constitution,93 every person has the right to acquire and own property in any part of Kenya. Equally, the Constitution provides that the State shall not discriminate against any person on any ground, including gender, marital status, health status, ethnic origin, age, religion or gender. 3.2.2 The Matrimonial Property Act No 49 of 2013 The MPA attempts to comprehensively codify the rights and responsibilities of spouses m relation to matrimonial property. Before, the MWPA188294 provided for the rights and responsibilities of spouses in relation to matrimonial property. · The Matrimonial Property Act is meant to provide for the ri ght~ and responsibilities of spouses. This Act bridged the gaps that were in the previous legislation; the MWPA.95 The new statute has a host of concepts that borrow heavily from the spiri t of the Consti tution. For example, the Constitution of Kenya provides that parties to a marriage are entitled to equal rights at the time of, during and after marriage.96 The Act fu rther states that the ownership of matrimonial property vests in the spouse ' equal shares irrespective of the contribution of either spouse towards its acquisition, and shall be divided equally between the spouses if their union is dissolved.97This contradicts the earlier provision. The Act98 defines "contribution" to mean monetary and non-monetary contribu1ion and includes domestic management of the matrimonial home; child care; companionship; and management of family business or property.99 93 Article 40, Constitution of Kenya 20 I 0 94 A United Kingdom Statute of General Application Applied in Kenya by virtue of Section 3(1) (c) of the Judicature Act Cap. 8. 95 Section 19, The Matrimonial Property Act, 2013 . 96 Article 45(3), Constitution of Kenya 20 I 0. 97 Section 7, The Matrimonial Property Act, 2013. 98 The Matrimonial Property Act, 2013 99 Section 2, The Matrimonial Property Act, 2013 . 29 A matrimonial home is defined as any property that is owned or leased by one or both spouses and occupied by the spouses as their family home, and includes any other attached property 100• This extends to any property attached to the matrimonial home. 101 For the purposes of the Act, matrimonial property entails the matrimonial home or homes; household goods and effects in the home or homes; any other immovable and movable property jointly owned and acquired during the subsistence of the marriage. 102 With regard to ownership of matrimonial property, property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided (not equally) between the spouses if they divorce or their marriage is otherwise dissolved as seen in the Echaria103 case, 104 especially where there is no Prenuptial Agreement. 105 Furthermore, the Act introduces Property rights in polygamous marriages 106. It states that where a polygamous marriage is dissolved, the matrimonial property acquired by the man and the first wife shall be retained equally by the man and the first wife only, if the property was acquired before the man married another wife; and matrimonial property acquired by the man after the man marries another wife shall be regarded as owned by the man and the wives considering any contributions made by the man and each of the wives 107 . However, where there ' s agreement of the parties that a wife shall have her matrimonial properly with the husband separate from that of the other wives, then that wife shall own the respective property equally with the husband without the participation of the other wives.108 100 Section 6, The Matrimonial Property Act, 2013 101 Section 2, The Matrimonial Property Act, 2013 . 102 Section 6(1 ), The Matrimonial Property Act, 2013. 103 Echaria v Echaria [2007] eKLR Nairobi Civil Appeal No. 75 of2001 104 Section 7, The Matrimonial Property Act, 20 13. 105 A prenuptial Agreement or sometimes referred to as an ante-nuptial agree is defined as a written contTact between two people who are about to marry, setting out the terms of possession of assets, treatment of f~t~re earnings, control of the property of each, and potential divi sion if the marriage is later dissolved. DefillltJon available at accessed on 30 September, 2016. 106 Section 8 (I), The Matrimonial Property Act, 201 3 107 Section 8 (l)(b), The Matrimonial Property Act, 2013 108 Section 8, The Matrimonial Property Act, 201 3. 30 Customary law principles form an integral part of Kenyan · cultural practices and traditions. Upon division of property between spouses, the Act provides that the customary law of the communities in question sha:ll, in accordance with the Constitution, 109 be taken into account including the customary law relating to dissolution of marriage; the principle of protection of rights of future generations to community and ancestral land as provided for under Arli i.J ~ 63 of the Constitution; and the principles relating to access and utilization of ancestral land by a wife or wives or former wife or wives. 110 The Act protects both spouses in situations where one spouse sells the matrimonial property without the knowledge of their spouse. It provides that, an estate or interest in any matrimonial property shall not, during the subsistence of a monogamous matTiage and without the consent of both spouses, be alienated in any form, whether by sale, gift, lease, or mortgage. 1 1 1 This means that a sale agreement of matrimonial property by one spouse unilaterally is voidable. Further, a spouse in a monogamous marriage, or in the case of a polygamous marriage, the man and any of the man's wives, have an interest in matrimonial property capable of protection by caveat, caution/ or otherwise under any law for the time being in force relating to the registration of title to land or of deeds. 1 12 Situations whereby one spouse evicted their spouse from the matrimonial home have come to a statutory end as this has been made illegal by the Act1 13 , except by court order. 114 However, the only instances when a spouse shall be evicted from the matrimonial home by any person is on the sale of any estate or interest in the matrimonial home in execution of a decree; by a trustee in bankruptcy; or by a mortgagee or chargee in exercise of power of sale or other 109 Article 2(4), The Constitution of Kenya, 2010; Any law, including customary law. that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid. 110 Section 11, The Matrimonial Property Act, 2013 . 111 Section 12(1 ), The Matrimonial Property Act, 20 13. 11 2 Section 12(2), The Matrimonial Property Act, 2013 113 Section 12(3), The Matrimonial Property Act, 2013 11 4 Section 12(3), The Matrimonial Property Act, 2013 31 remedy given under any law. 115 Also, the matrimonial home shall not be mortgaged or leased without the written and informed consent of both spouses. 116 A person may apply to a court for a declaration of rights to any property that is contested between that person and a spouse or a former spouse of the person. This application shall be made in accordance with such procedure as may be prescrib~d; may be made as part of a· petition in a matrimonial cause; and may be made notwithstanding that a petition has not been filed under any law relating to matrimonial causes. 117 With regard to spousal liabilities, any liability incurred by a spouse before the marriage and relating to the property shall, after marriage, remain the liability of the spouse who incurred it. However, any liability that was reasonably incurred shall , if the property becomes matrimonial property be equally shared by the spouses, unless they otherwise agree. 118 Patiies to a marriage shall share equally any liability incurred during the subsistence of the maniage for the benefit of the marriage; or reasonable and justifiable expense incurred for th·-~ benefit of the marriage. 119 Marriage does not affect the right of either spouse to own, or dispose of any property other than matrimonial property. This Act provides that any agreement between the spouses before the marriage, marriage does not affect the ownership of property other than matrimonial property to which either spouse may be entitled, or affect the right of either spouse to acquire, hold or dispose of any such property. 120 The Act equally addresses presumptions regarding property acquired during marriage to the effect that where matrimonial property is acquired during marriage in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse; 115 Section 12( 4), The Matrimonial Property Act, 2013. 11 6 Section 12(5), The Matrimonial Property Act, 2013. 11 7 Section 17, The Matrimonial Property Act, 20 13. 11 8 Section 1'0( I) and (2), The Matrimonial Property Act. 2013 . 11 9 Section I 0(3), The Matrimonial Property Act, 2013 . 120 SE'otion I ;1 , Tlw Alnll'imo~tinl p,.,.,,uu•ty At:/, 2013. 32 and in the names of the spouses jointly, there shall be r buttable presumption that t.bGir interests in the matrimonial property are equal. 121 The Act attaches no liability for antecedent debts of a spouse. A spouse is not liable. solely by reason of marriage, for any personal debt contracted by the other spouse prior to their marriage. 122 What does tl~is mean for banks? It means that the banks have to pay attention to the rights of the spouse of the bon·ower. They have an indirect obliga tion c.nd/qr duty to ensure that they protect the spousal rights. 123 3.3 Jurisprudence from Courts in addressing denial of Access to Matl'imonial Property Comis have begun to interpret and give effect to the Matrimonial Property Act 2013 , which is a transformative step in the right direction for Kenya. After the new Constitution was aJopted, case law on marital property and propetiy rights upon the dissolution of Jn8rriage beslclil to evolve. 124 On May 10, 2013 , Lady Justice Mary M. Gitumbi ruled in !::--v:Jr f r· <{ 'v>OP''' ll 's equal right to martial property. In that case the husband had maue 100% of the mone1?.ry contributions to the family home and sought 100% ownership of that home, but the 1 udge ruled that "[t]he legal provisions in force now [under the new Constitution] require this court to apply the principles of equality instead. This Comi is duty bound to share the Sui t Propert:v equally between the Plaintiff and the Defendant." 125 3.4 Effects of the Matrimonial Property Act in the Society 3.4.1 The Concept of Indirect Contribution The Act126 has introduced the concept of acquisition of interest in property by contribution, whereby one spouse acquires property before or during the marriage. Tl;e property acf) tiired 12 1 Section 14, The Matrimonial Property Act, 2013 . 122 Section 63 The Matrimonial Property Act, 2013 . m Chigiti .1, .'Kenya: New Law Guides Distribution of Matrimonial Proper~v' ( !9 February, 20 14) av:'lil ahle "' accessed on 30 June 20 I~ - , . . 1 ~ ·1 MWE Team, 'Current Legal Framework: Marital assets and Property m Kenya, (8 Apnl2017) available at accessed on 30 June, 2015. 125 C. M.N v A.W. M[2013] eKLR. 126 The Matrimonial Property Act 2013 33 during the marriage does not become matrimonial property. However, if the other spouse makes a contribution towards the improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made.127 In as much as this concept had already been developed in case law, 12R it is advancement in the sense that the drafters of this legislation saw it fi t to have it clearly stipuiated m statute. 3.4.2 Prenuptial Agreements Pre-nuptial agreements were not legal in Kenya prior to the Matrimonial Property Act 2013 . It is now possible for spouses to enter into pre-nuptial agreements to determine their property rights before marriage-thanks to the Act. The introduction of pre-nupti al agreements is ·. 'vay of safeguarding properties from the possibility of being embroiled in any future divorce proceedings of a family member. Parties to an intended marriage may enter into an agreement before their mamage to determine their property rights. 129• A party to a prenuptial agreement may appeal to the Court to set aside the agreement and the Court may set aside the agreement if it determines that the . fl d b (.': d . . . 130 agreement was m uence y 1rau , coerciOn or IS unJust. 3.4.3 The Matrimonial Property Act and Islam The application of Islamic law to persons who profess the faith in matters relating to personal status, marriage, divorce and inheritance is recognized under the Constitution. 13 1 Here, the MPA provides that Muslims can opt to either, be bound by the MPA; 132 or have matrimonial property governed by Muslim law. There are exceptions to the general applicat ion of Jsi ~i mic 127 Section 9, The Matrimonial Property Act, 201 3. 128 KivuituvKivuitu . (1991)eKLR 241 129 Section 6(3), The Matrimonial Properties Act 2013 . 130 Section 6(4), The Matrimonial Properties Act 201 3 . . 131 Article 170 (5), The Constitution of Kenya, 20 I 0 ; The jurisdiction of a Kad~i s' cm~rt sha ll be hmtt~d to t~e determination of questions of Muslim law relating _to pe:s~nal status,· t~ arnage, _ d1~0r_ce_ or u~hent~_nce - ~n proceedings in which all the parties profess the Muslim reltgwn and subm :t to the .Jimsd wtw n o .. l he 1\.ildlu s courts . 132 Section 3, The Matrimonial Properties Act 2013 . 34 law133 . The Matrimonial Property Act provides that notwithstanding Muslim law, customary law or any other law to the contrary, a married woman has the same rights as a married man: to acquire, administer, hold, control, use, and dispose of movable or immovable property; tO enter into a contract; and to sue and be sued in her own name 134. 3.5 International Instruments Kenya has ratified many international and regional human rights instruments. To this end , it is a party to six of the seven core UN human rights treaties, with the exception being the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. 135 Consequently this research paper deliberately focuses on specific treaties that give provision against discrimination of women. These are the International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR) and Convention on the Elimination of all forms of Discrimination against Women (1979) (CEDA W). 136 Under international human rights law, women have a right to own and administer propetty without discrimination (UDHR). 137 Everyone is entitled to rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status 138 . Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to 133 Section 6, The Matrimonial Properties Act 2013 134 Section 6, The Matrimonial Properties Act 20 13 135 See Kenya Human Rights Commission, 'Towards equality and anti-discrimination, An Overview of International and Domestic Law on Anti-Discrimination in Kenya.' (20 I 0) at 2. 136 Convention on the Elimination of All Forms of Discrimination Against women, G.A. Res. 34/ 180, 34 UN GOAR, Supp. (No. 46), UN Doc. A/34/46, at 193 (1979), entered into force 3 Sept. 1981 , G.A. Supp. (No. 46), (hereinafter CEDAW) 137 Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly on I 0 December 1948 at the Palais de Chaillot, Paris. 138 Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly on I 0 December 1948 at the Palais de Chaillot, Paris. 35 which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. 139 The implication of such provisions is that women are free from discrimination as access to the rights and freedoms in the Declaration is for all , regardless even of gender. Further article 17 (1) states that 'Everyone has the right to own property alone as well as in association with others. ' whereas miicle 17(2) No one shall be arbitrarily deprived of his property. Further article 17 (1) states that 'Everyone has the right to own property alone as well as in association with others. ' while article 17(2) provides that No one shall be arbitrarily deprived of his property. CEDA W Convention IS a landmark international agreement that affim1s principles of fundamental human rights and equality for women around the world. It is a blueprint for each country to achieve progress for women and girls. Article 13 gives provision for economic and social life. It affirms that women have equal rights to family benefits, financial credit and pmiicipation in recreational activities. Article 14(2) (g) gives effect to outlawing discrimination of rural women by affirming "equal treatment in land and agrari an reform ." Article 15 also provides for equality before the law. Women and men are equal before the law. Women now have the legal right to enter contracts, own property, and choose their place of residence. Article 16 stipulates that within the family, both spouses have equal rights in the "ownership, acquisition, management, administration, enjoyment and disposition of property." Soft-law instruments have also been adopted by the United Nations. For instance, Resolution 15(1998) of the Sub-Commission on the Promotion and Protection of Human Rights stated that discrimination against women with respect to acquiring and securing land constitutes a violation of human rights law, and urged governments to amend and/or repeal 139 Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly on I 0 December 1948 at the Palais de Chaillot, Paris. 36 discriminatory laws and policies and to encourage the transformation of discriminatory customs and traditions. 140 3.6 Conclusion Spouses to a matrimonial union are now protected under Kenyan law. The promulgation of the Constitution 2010, the enactment of the Matrimonial Property Act 2013 and the ratification of various instruments has ushered in transformation in the area of matrimonial property. This chapter has explored the presupposition that the Matrimonial Property Act is an Act sufficiently providing for the rights and responsibi lities of spouses in rela tion to matrimonial property especially the division or allocation of matrimonial property upon dissolution of such unions. The effect of these laws is that spouses in a dissolved umon, especially women, are the biggest beneficiaries of the Act in a predominantly patriarchal society. 140 UN Resolution 15 (1998) ofthe Sub-Commission on the Promotion and Protection of Human Rights, ' Women and the Right to Land, Property and Adequate Housing' (1998), at paragraphs ( I and 3). 37 CHAPTER FOUR A COMPARATIVE ANALYSIS OF TRANSFORMATION IN MATRIMONI AL ASSET DIVISION WITH REGARD TO SPECIFIC CASE LAW, AND A CRITIQUE ON THE IMPLICATIONS ON WOMEN'S RIGHTS IN MORE RECENT KENYAN CASES 4.1 Introduction For the duration of the period of colonialism, and in subsequent years after independence, Kenyan comts were heavily reliant on precedent set out by British courts, owing to common. law141 . These decisions have played a key role in development of jurisprudence on the division of matrimonial property 142• This chapter seeks to analyse, on a case by case basis, the way in which matrimonial propet1y has been handled over the years. It is a look into the evidence of transformation by way of precede ts or case law that paved a way for favourable conditions with regard to women's rights to access matrimonial property, both in Kenya and the English courts that Kenya has derived much of its common law influence from. Furthermore, an evaluation of r~cent cases will reveal whether or not the law and precedent has grown favourable to women in Kenya. 4.2 Influential Common Law Provisions and Precedent There are cases which set the precedent for the use of the Engl ish Married Women Property Act of 1882 in Kenya. For instance, in the case of Jv 1143, discussed in chapter two of this dissertation, the com1 held that the Married Women's Property Act was applicable in Kenya as a statute of general application, as ordained by section 3 of the Judicature Act. 144 The Act also affirmed that a married woman had the capacity to own property separately from 141 Onyango E.J , The Development Of Married Women 's Rights In Property In Kenya: The Matrimonial Property Act of2013 (No. 49 0/2013)' 2014,6 . 142 K. Freyda, The Division of Matrimonial Property in Kenya: A Feminist Approach (I )20 17 avatlable at https: //su-plus.strathmore.edu/bitstream/handle/11 071 /5226/ accessed on 28 November 2017 143 1v I (1971) EA 27 144 Section 3, Judicature Act, Cap 8 Laws of Kenya 38 her husband. 145 It also granted power to the court to consider the respective shares of the parties to the property in the event of dissolution of marriage. 146 In terms of precedent, the landmark case of Gissing v Gissing147 aforementioned in chapter two of this dissertation, plays an influential role. In the ruling, the court held that where there was no agreement between the spouses regarding the matrimonial home, as to the beneficial interest of the other spouse, the question of whether that spmise had a beneficia l. interest would be dependent on the law of trust148• It was also held that there was no distinction to be drawn in law between the position where a spouse makes direct contribution to the purchase of the property and where either the husband or the wife makes indirect contribution 149. In this context, the share of the contributing spouse would be prop01iionate to the contributions, either of the direct payments for the property or a fair estimate of their inri irect contribution determined by the courts 150• The English Courts ' Interpretation of Section 17 of the Man·ied Women ' s Property Act of 1882 was also reflected in the Pettitt case discussed prior, 151 as it was evidence of a transformation in the legislation which favoured women. 152 Upon dissolution of the marriage, there was an issue presented by the former spouses; the question arose, of whether the decorations would entitle the husband to a beneficial interest in the property 153• It was held that a husband was not entitled to an interest in his wife's prope11y merely because he had 145 Section 3, Judicature Act, Cap 8 Laws of Kenya 146 K. Freyda, The Division of Matrimonial Property in Kenya: A Feminist Approach ( I )20 17 available at https: //su-plus.strathmore.edu/bitstream/handle/ 11 071 /5226/ accessed on 28 November 201 7 147 Gissing v Gissing (1971) AC 886 148 Gissing v Gissing (19 71) AC 886 149 v. J. Sirma, Lending on the Security of Matrimonial Property in Kenya: The issue ofSpousal Consent, LL.M Thesis, University ofNairobi, 2014. 150 Gissing v Gissing (1971) AC 886 151 Pettit v Pettit (1969) 2 AllER 385. . 152 K. Freyda, The Division of Matrimonial Property in Kenya: A Feminist Approach (I )20 17 avatlable at httpli:llli*l*'"·,;"·othmor..,.ctlu/bltsu..,um/hnndle/11 071152261 accessed on 6 January 2018 153 K. Freyda, The Division of Matrimonial Property in Kenya: A Feminist Approach (I )20 17 ·available at https: //su-plus.strathmore.edu/bitstream/handle/ 11 071 /5226/ accessed on 6 January 2018 39 done in his free time jobs which husbands are usually expected to do 154 . The House of Lords also stated that section 17 of the Married Women's Property Act was a purely procedural provision which did not entitle the court to vary the existing proprietary rights of the parties. Fmiher, the status of the marriage did not result in any common ownership of co-ownership of the property and usage of the term, family property, was devoid of any legal meaning unless it referred to assets separately owned by one of the spouses 155 . 4.2.1 Kenyan interpretation of the Married Women's Property Act today There are numerous cases in Kenya whereby access to matrimonial property, for both men and women has been put in question. However the scope of this chapter is limited to a few key cases within Kenyan jurisdiction, and over the years, there have been ameliorations in both legislature and case law that sometimes provide a safety net for women upon dissolution of marriage. Whereas customary traditions would be highly unfavourable for women in Kenya, evidenced in cases such as Hortensiah Wanjiku Yawe v Public Truste/56, where it was established that the status of a married woman may enable her to qualify for maintenance or share in the estate of the deceased husband 157, common law has contributed to more favorable conditions for women in Kenya upon dissolution of a marriage in circumstances such as death or divorce. 158 In Peter Mburu Echaria vs Priscillah Njeri Echaria m the decision was that one has to prove contribution in order to get a share of the matrimonial property to enable the court to determine the level of contribution of the alleging party, so as to be able to divide the property equitably. It is very difficult for one to prove indirect contribution, and the extent to which 154 Pettit v Pettit (1969) 2 AllER 385. 155 Pettit v Pettit (196.9) 2 AllER JSJ, " 6 Hortensiah Wanjiku Yawe v Public Trustee Civil Appeal No. 13 of 1976 157 Hortensiah Wanjiku Yawe v Public Trustee Ovil Appeal No. 13 of 1976 158 Hortensiah Wanjiku Yawe v Public Trustee Civil Appeal No. 13 of 1976 159 Echaria v Echaria [2007] eKLR Nairobi Civil Appeal No. 75 of200 1 40 one contributed to the acquisition and the improvement or development of matrimonial property. 160 At that time, Kenya was still relying on section 1 7 of the Married Women Property Act before the enactment of the Matrimonial Property Act of 2013 as upheld in the decision of National Provincial Bank v Ainsworth161 that it does not confer jurisdiction on the court to vary title but only to determine rights in matrimonial property.162 Using an example of an older case, the Kenyan case of Karanja v Karanja 163 is one that applied the principles which the aforementioned case of Gissing set out. As per the facts of this case, Mr. and Mrs. Karanja acquired several properties during the marriage that were registered in the name of the husband. One property was acquired using Mrs. Karanja ' s money, while the others with her direct and indirect contribution. The issue that was brought the before court was whether customary law would operate to disqualify any imputation of trust in favour of a married woman, especially one in a salaried employment. 164 It was held that in cases where the property was acquired as a joint venture, it will be regarded as belonging to the spouses jointly no matter in whose name the property stands. Therefore, the husband in this case held the properties in dispute in trust fo r himself and hi~ wife in proportions of two to one respectively. In the subsequent case of Kivuitu v Kivuitu, 165 the question arose of whether the non-monetary contribution of a housewife would equate to indirect financial contribution of a wife in salaried employment. 166 This case involved a husband who went abroad and left his wife in charge of obtaining an alternative matrimonial home. Mrs. Kivuitu paid a deposit for the new 1600nyango E.J , The Development Of Married Women's Rights In Property In Kenya: The Matrimonial Property Act of20!3 (No. 49 Of2013) ' 2014, 6. 16 1 National Provincial Bank v Ainsworth [1965] AC 1175 . . 162 v. Sirma, Lending on the Security of Matrimonial Property in Kenya: The Issue of Spousal Consent, LL.M Thesis, University of Nairobi , 20 I 163 Karanja v Kara'!ja[1976] KLR 307) 164 Maina, W.M. , Marriage and Succession: A Co~?flict Precipitated by the Inclusion of Section 3(5) Into the Law of Succession Act Cap. I 60. Laws of Kenya. LLB . Dissertation University ofNairobi , 1992 165 Kivuitu v Kivuitu Civil Appeal 26 of 1985, ( 1991) eKLR 166 Kivuitu v Kivuitu Civil Appeal 26 of 1985, (1991) eKLR 41 property using moneys obtained from a business owned Mr. Kivuitu. The husband paid the balance from his salary and the property was register~d in their joint names. 167 When divorce proceedings begun between the two, the wife applied [or the matrimonial home to be sold and the proceeds to be shared between them. The court of Appeal held that the fact that the property was registered in the joint names of the husband and wife meant that each party owned undivided equal shares therein. 168 Further, section 17 of the Act did not give the right of a sale but a determination and declaration of the wife's share in the property. 169 4.2.2 Confusion in the Kenyan interpretation of the Married Women 's Pr·operty Act Despite promulgation of change from customary laws that would often render it difficult for a woman to own or inherit her husband's property upon death or divorce, there have been disadvantageous instances due to a lack of clarity. In the much more recent case of Milcah Municah Munoko v Lawrence Ochokolo Oduma170, Mrs. Munoko, under Certificate of Urgency, filed a Notice of Motion Application together with an Originating Summons Application both dated 261h February; 2016, seeking to cease sale of property that had been acquired during her marriage to Mr. Oduma. This property entailed a motor vehicle, four apartments and a parcel of land. 171 It was the respondent's contention that although Section 17 of the MP A states that an Applicant is to make such Applications to Court in accordance with the procedures as prescribed, 172 the Act has not expressly given any procedure to that effect. Judge M. W. Muigai noted that indeed, the Matrimonial Property Act does not give the procedure or the mode of institution of any such proceedings under the Act and the same has thus been le ft to 167 Kivuitu v Kivuitu Civil Appeal 26 of 1985, ( 1991) eKLR 168 K. Freyda, The Division of Matrimonial Property in Kenya: A Feminist Approach (I )20 17 available at https: //su-plus.strathmore.edu/bitstream/handle/ 11 071 /5226/ accessed on 6 January 2018 169 Kivuitu v Kivuitu Civil Appeal 26 of 1985, (1991) eKLR 170 MilcahMunicahMunoko v Lawrence Ochokolo0duma[20 16] eK LR 171 MilcahMunicahMunoko v Lawrence Ochokolo0duma[20 16] eKLR 172 MilcahMunicahMunoko v Lawrence Ochokolo0duma[20 16] eKLR 42 the parties and the Courts. It followed therefore that there was no explicitly outlined procedure to be followed in instituting proceedings under the Act and hence, the Court could not dismiss a litigant on the basis that he or she ought to have instituted such proceedings using a particular mode as opposed to another. 173 This case illustrates the lack of clarity in a year as recent as 2016, when one ought to assume that interpretation of the Act would be clear and favorable to not just women, but both parties by determining each party's contribution. Furthennore, interpretation of this piece of common law legislation has been questioned in the Kenyan context. In the case of PNN v ZWN, 174 Justice Patrick Kiage contended that al though equal sharing of property would be unfair to the spouse who is deemed to have contributed more, there are also parties who do not fulfill their obligations when it comes to non-monetary contributions.175 It was stated that the dispensation is no safe haven for spouses who will not pull their weight. Also, the judge sated that legislation regarding division of matrimonial propetiy should not be "an avenue to early riches by men who would rather reap fro1 ~1 rich women, or women who see in wealthy men an adieu to povetiy" 176. This presents the issue of women taking advantage of the aforementioned legislation, as it is no secret th