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The morning of January 11, 2023 found Festus Kithinji sitting in his lawyer’s office in Ruiru to close a deal with a land seller. His wife was one of the two persons acting as witnesses in the sale. “I bought the 50*100 plot along Kangundo Road on Wednesday, January 11 at Sh1.95 million,” he says.
His lawyer had done due diligence and given the transaction the green light. As they signed the sale agreement, Festus was asked by his lawyer if he would wish for his title deed to be processed as joint ownership with his wife.
“I first took it as a joke and laughed it off,” he says. But when the lawyer posed the question again, he declared that the title deed should be registered and processed under his name only. This rubbed his wife the wrong way.
“She was furious. I could tell she was boiling in anger,” he says.
On their way home, Festus was accused by his wife of distrusting her, shaming her, and perceiving her as a lesser partner in their marriage.
“I explained that I was acting as the family custodian. I told her that it was matrimonial property and she had equal rights to it. But I knew exactly what I was doing,” Festus says.
The 37-year-old banker says that he could sense his wife knew his end game. She has been throwing barbs at him over the last three weeks. “She has also made attempts to cajole me into enlisting her as a joint owner. But I am not budging. I plan to build my family home on that plot. That title is my pride. It is the very essence of my manhood in this marriage; a representation of my authority and position as the leader of my family. I can’t give that away,” he declares.
Richard Kyengo has vowed to never list his spouse as a joint owner in any of the properties he shall acquire in his marriage. “That is one of the biggest mistakes a modern man can make,” he claims. He says that he has learned the hard way after watching his older brother lose properties he took loans to acquire but listed his wife as a joint owner in a messy divorce settlement. “My father tried to warn him but my brother thought he was doing it for love,” he says. “His wife cheated on him and abused him emotionally. We suspect she battered him too. She ran away multiple times, leaving their three kids behind. Eventually, she filed for divorce and claimed half of the property he had acquired, two parcels of land and one rental building,” says Kyengo.
Vincent Nyamwaro says that his wife has been trying to coerce him to change their family land’s title into her name if he truly loves, values and trusts her. “She says this is a form of insurance for her and our children; that she wouldn’t want to get into property fights with my siblings over land ownership if something such as death were to happen to me or if I were to marry a second wife,” says the 40-year-old father of two.
However, Nyamwaro says that this coercion has turned into nagging and has stirred a lot of distrust towards his wife. “Why would she insist so persistently? It’s not like I am dying tomorrow or planning to marry a second wife!”
Although he might have considered joint property ownership with his wife, Nyamwaro now says he cannot register any of his properties jointly because of distrust. “Every time she throws a fit of rage that she owns nothing in this marriage, my brain immediately flips to incidents of wives who rush to court for divorce or plot to have their husbands killed over matrimonial property,” he says.
Festus, Richard and Nyamwaro join a growing list of men who are shying away from joint property ownership with their wives. Fresh data from the Kenya Demographic Health Survey 2022 shows that over the past eight years half or 51 percent of married men owned their homes alone as compared to 2014, when only 36 percent did so.
The data released by the Kenya National Bureau of Statistics in January 2023 further shows that the number of married men who own agricultural land alone jumped from 28 percent nine years ago to the current 41.5 percent.
However, the proportion of women who own homes and land alone fell sharply, while those who said they jointly owned these properties rose.
What really has brought about this change in men?
The majority of men who spoke with Saturday Magazine say that they have resulted in dropping their wives from property ownership as the last line of defence against what they see as an onslaught on manhood and patriarchy.
“We are dropping our wives from home and land ownership because of the uncertainties of the modern marriage and the assertiveness of modern women in pursuing what they have been told are their rights,” says Charles Kahugu whose family’s title deed to three acres of land bear his name only.
Kahugu who has been married for the past five years says that he can never be too sure if his marriage will last. “My parent’s marriage has lasted for 41 years. I am not sure mine will go beyond the seventh year, leave alone mark the tenth anniversary,” says the 40-year-old. He adds that the rate at which contemporary marriages are breaking has made men jittery when it comes to having their wives co-own property with them.
Kahugu says that with his sole property ownership, he feels insulated in the event of a divorce. “If I enjoin my wife in the title deed and we divorce, the courts will order me to split the land 50:50 without regard to how I toiled to acquire it. But if I own it alone, I will have a better fighting chance of remaining as the owner,” he says.
For some men though, owning property alone is simply a form of control, power and authority at home. Salim Mohamed, 36, says that by enlisting his property under his name, he feels validated as the provider of his family. “I cannot be a provider and the man of the house if I don’t own and control the most fundamental need of the family which is land and the house," he says.
According to sociologist Nathan Gachoka, the increasing number of men choosing to leave their spouses out of property ownership is an outcome of divorce cases and settlements over the last decade.
“Traditionally, patriarchy held the upper hand in divorces. Nowadays, judicial authorities, academic and financial awareness have leveled the playfield for the modern woman,” he says.
“Unlike the traditional woman whose fate was resigned to patriarchy, the modern woman now has capacity to show cause as to why she must get half or even more than half of matrimonial property during divorce,” observes Gachoka.
Gachoka also points out that men who hear about a divorcing man who has been compelled to share matrimonial property 50:50 will be assumed to be weak, and, or to have exposed himself to the set-up.
“There’s a line of thought among men that a modern woman who knows she has an equal share to matrimonial property will not be as submissive and wifely,” he says.
“This raises the urgency by men to limit ownership out of fear that their marriage will start to disintegrate the moment their spouses know they will get sizable assets in the event of divorce,” says Gachoka.
At the same time, Suyianka Lempaa, an advocate of the High Court, says that this emerging trend of married men opting to own properties on their own can be attributed to court decisions which have increasingly ruled in favour of equal sharing of property in case of joint ownership. “With the new Constitution and Matrimonial Property Act, if the property is jointly owned the possibility is that you will divide it equally in case of a difference with your spouse,”
For Moses Mbogo who is an architect and contractor, suspected cases of women having a hand in the death of their husbands because of property is the reason he has chosen to play safe. “Land and houses are the priciest, secure and most cherished assets in Kenya. We have seen women who have been suspected of facilitating their husbands’ deaths so as to end up as beneficiaries,” he says. “I own a number of assets and the only way for me to protect myself in this lifetime and after death is by excluding my spouse from all title deeds, however much I love her,” he says. Moses owns a family maisonette in Kiambu County and two rental flats in Nakuru and Eldoret.
This has come as a shift to the old order where men had no problem listing their wives and children as beneficiaries or holding their property in their trust. Some of them attribute this shift to what they see as the commercialisation of the marriage unit. “If push comes to shove, I will divide my estate and hold it in trust for my children,” says 38-year-old Caleb Kiptoo. His resolution is based on the estate division plan that allows a parent who owns property to hold it in trust for their children and act as a settlor, trustee and beneficiary.
Caleb says that by doing this secretly, he will not be too concerned that his wife is with him for the money or whether she might set their children against him. “If you are a man and have given up all your property rights to your wife, be prepared to have a very tough retirement. Your wife will turn on you and most likely your kids will side with her. But if you have control over family wealth, you will be respected and remain relevant,” he muses.
According to Sheila Sabaya, an Advocate of the High Court who specialises in family law, it is not illegal for one spouse to register property in their sole name during marriage. “The law recognises an adult partner as being a legal person who is separate from their spouse and with separate and distinct freedoms, rights, and responsibilities. Among these rights is the right to acquire and own property,” she says.
Sheila explains that this means that even within the institution of marriage, one is at liberty to acquire property and have it registered in their sole name. There is, however, a catch! This property must not be matrimonial property.
Sheila explains that matrimonial property includes 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 or developed during the subsistence of the marriage. “Ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition or development, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved,” she says.
She adds that spousal rights over matrimonial property are so critical that Section 28 of the Land Registration Act recognises it as an overriding interest even though it is not noted on the register of titles. “This overriding interest makes it mandatory to obtain spousal consent at the time of mortgaging, charging or transferring property,” she says.
If a man registers matrimonial property in their name, he should know that sole ownership is not cast in stone. For instance, to protect matrimonial property, Section 93 (2) of the Land Registration Act is aligned with the Matrimonial Property Act. Sheila says that this Act provides that: if land is held in the name of one spouse only but the other spouse or spouses contribute by their labour or other means to the productivity, upkeep and improvement of the land, that spouse or those spouses shall be deemed to have acquired an interest in that land.
50:50 supreme court ruling
There are men who feel that the Supreme Court has vindicated their decision to exclude their spouses from joint property ownership. This follows claims that the Supreme Court had ruled that matrimonial property would no longer be divided on a 50:50 basis.
However, according to Sheila, spousal contribution, as rightly put in the Matrimonial Property Act and buttressed by the Supreme Court of Kenya decision in Petition No. 11 of 2020 (JOO VS MBO) can be direct or indirect.
“Direct contribution can be made through paying part of the purchase price of the matrimonial property or for its development or by contributing regularly to the monthly payments in the acquisition of such property,” she says. “Indirect contribution includes domestic work and management of the matrimonial home; companionship; management of family business or property; farm work, caring for children among other things.”
Even where the man has registered his property in his name and left out his spouse, Sheila says that the wife can still block his exclusive rights to disposing of the property as he might wish. “In instances where one spouse deliberately seeks to leave out his partner while registering property, the disenfranchised spouse can register a Licensee’s interests in the title by way of caveat,” she says.
Sheila adds that if the spouse is apprehensive that the property may be disposed of, she can lodge a Caution, attach the Marriage Certificate and outline her apprehension. “The spouse may also make an application under section 87 of the Land Registration Act so that the land cannot be dealt with without her being given an opportunity to be heard,” she says.
Takeaway Stats
According to the Kenya Demographic Health Survey 2022:
In 2022:
51 per cent of married men owned their homes alone.
18.4 per cent of married men owned their homes jointly with their spouses.
29.9 per cent of married men did not own a home.
41.5 per cent of married men owned their land alone.
7.6 per cent of married men owned their land jointly with their spouses.
46.7 per cent of married men did not own land.
Divorce cases where women have won in the battle for matrimonial property
In January 2023, the Supreme Court of Kenya ordered that Joseph Ombogi Ogentoto and his ex-wife Martha Bosibori divide their matrimonial property on a 50:50 basis. This property included their matrimonial home at Tassia Estate within Embakasi in Nairobi and constructed rental units on the property. In an earlier ruling by the High Court, Ms Bosibori had been awarded a share of 30 percent of the house and a share of 20 percent of the rental units. The Supreme Court ruled that Ms Bosibori took out loans and contributed substantially to the purchase of the matrimonial property and the rental units.
In April 2020, the Court of Appeal allowed an elderly woman to be the sole owner of matrimonial property that was valued at Sh6 million. This ruling was made 17 years after the dissolution of her marriage in 2003. The couple got married in 1956 under Gusii customary law. During divorce proceedings at the High Court, the ex-husband had lost with the court ruling that the 30 acres matrimonial property should be solely owned by the ex-wife. The court ruled that the husband had retained or sold, without the concurrence of his wife, two properties in Langas and Ndalat both of which were registered in her name. This ruling by the High Court was upheld by the Court of Appeal.
In May 2022, the High Court ordered a divorced couple to share their matrimonial property equally. In the case, the woman, identified as CRW, laid a claim to several matrimonial properties in the custody of her ex-husband, those registered in her name and those jointly held with her former husband who was identified as MIO. This property included their matrimonial home, rental houses in Kimumu Estate, Eldoret, land parcels, shops, motor vehicles and household items acquired during their marriage.
