A Commentary on the Judgment delivered by the Supreme Court in Petition No.11 of 2020.

“There is no blue print of fairness that fits all. Fairness depends on circumstances on each case.

A Commentary on the Judgment delivered by the Supreme Court in Petition No.11 of 2020.

JOSEPH OMBOGI OGENTOTO-VS- MARTHA BOSIBORI OGENTOTO. Two of the important matters that the Supreme Court had to decide in this matter is what interpretation should be given to Article 45 (3) of the Constitution of Kenya and what is applicable law for divorce matters filed before the enactment of the Marriage Act of 2013.

  1. Interpretation of Article 45(3).

Article 45(3) states as follows: –

“Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage”.

The two schools of thought that emerged from the interpretation of the above article were as follows: –

  1. That parties were entitled to equal division of matrimonial property, or the property acquired during the subsistence of the marriage.
  2. That parties to a marriage are seen to be equal in the eyes of the law and therefore the parties are entitled to equal rights and treatment during the marriage and at the dissolution of marriage. This therefore had no particular bearing on the issue of proprietary rights amongst parties to a marriage.

The Supreme Court cited the Court of Appeal case EGM v BMM [2020] eKLR also discussed whether Article 45(3) grants property rights upon dissolution of a marriage and found thus: “With great respect, we find the learned judge’s interpretation of Article 45 (3) to be textually and contextually untenable. He failed to appreciate that the sub-Article simply deals with equality of the fundamental rights and freedoms of spouses during and after the dissolution of marriage. There was no basis for reading into the provision what the text does not ordain. Equality of spouses does not involve the re-distribution of property rights at the dissolution of marriage.”

The Supreme Court agreed with the latter interpretation and quoted Justice Kiage of the Court of Appeal as follows: –

“Does this marital equality recognized in the Constitution mean that matrimonial property should be divided equally? I do not think so. I take this view while beginning from the premise that all things being equal, and both parties having made equal effort towards the acquisition, preservation or improvement of family property, the process of determining entitlement may lead to a distribution of 50:50 or thereabouts. That is not to say, however, that as a matter of doctrine or principle, equality of parties translates to equal proprietary entitlement. The reality remains that when the ship of marriage hits the rocks, flounders and sinks, the sad, awful business of division and distribution of matrimonial property must be proceeded with on the basis of fairness and conscience, not a romantic clutching on to the 50:50 mantra. It is not a matter of mathematics merely as in the splitting of an orange in two for, as biblical Solomon of old found, justice does not get to be served by simply cutting up a contested object of love, ambition or desire into two equal parts.

“The equality provision in Article 45(3) does not entitle any court to vary existing proprietary rights of parties and take away what belongs to one spouse and award half of it to another spouse that has contributed nothing to its acquisition merely because they were or are married to each other. To do so would mean that Article 40(1) and (2) of the Constitution which protect the right to property would have no meaning which would not have been the intention of the drafters”.

  • What is the applicable law for divorce matters filed before the enactment of the Marriage Act 2013?

The Matrimonial dispute filed before the High Court was filed before the enactment of the Marriage Act and the High Court used the principles established in the case of Echaria –vs- Echaria to issue it’s judgment in this matter however by the time the matter was being heard in the Court of Appeal the Marriage Act 2013 and the new Constitution 2010 had already been enacted into law.

The finding in the case of Echaria held that a party to a marriage must prove their contribution to the acquisition of the matrimonial property. The court should consider the circumstances of each arising case independently, in assessing contribution further noting that what amounts to contribution may either be direct and monetary and indirect and non-monetary.

Quoting the case of Burns -vs- Burns [1984] 1 All ER 244 Lord Justice Fox stated contribution may include:

  1. Paying part of the purchase price of the matrimonial property.
  2. Contributing regularly to the monthly payments in the acquisition of such property.
  3. Making a substantial financial contribution to the family expenses so as to enable the mortgage instalments to be paid.
  4. Contributing to the running of and welfare of the home and easing the burden of the spouse paying for the property.
  5. Caring for children and the family at large as the other spouse works to earn money to pay for the property.

In the current case the Supreme Court therefore had to consider what constituted matrimonial property?  whether the respondent contributed to the acquisition of the alleged matrimonial property? and if so, to what extent? And the respondent’s share in the matrimonial property?

The Supreme Court in its Judgment found that the Respondent had taken out various loans which contributed substantially to the Purchase of the matrimonial property together with the rental units that were located on the same property and therefore up-held the 50:50 division of the matrimonial property, reinforcing the decision of the Court of Appeal in the matter.

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