Commercial marriages

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.