Court says spouses do not hold equal rights in matrimonial property

The High Court ruled that spouses do not automatically hold equal rights or beneficial interests in matrimonial property, even when such property is jointly registered.

Instead, ownership depends on each spouse’s monetary or non-monetary contribution to the acquisition or improvement of the asset.

This was the finding in a judgment delivered, where Henry Nditika Mwaura sought a declaration of fair distribution of a property registered in both his and his former wife’s name in accordance to contribution.

The court found that Mwaura had solely financed the purchase and development of the property known as Title Number 19928/4 (Original No. 19928/18/2), located in Bustani Gardens, Nairobi.
He provided evidence including RTGS payment slips, loan statements, and construction expenditure records.

Despite the property being jointly registered, his former wife, Elizabeth Itumbi Kaindi, made no financial contribution and did not contest the claim in court.

In its ruling, the court held that joint ownership does not override the requirement under Section 7 of the Matrimonial Property Act, which ties ownership to contribution.

“Section 7 of the Matrimonial Property Act, states as follows:-“Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved,” ruled the court.

Lady Justice Patricia Mandem Nyaundi further relied on Section 14(b) of the Act, which creates only a rebuttable presumption of equal beneficial ownership in jointly registered properties, a presumption the applicant successfully overturned.

“The applicant has shown that he solely financed the acquisition and construction of the matrimonial home,” the court ruled

“Accordingly, he is entitled to 100% ownership.”

The court also declined to classify a second parcel of land—Kajiado/Lorngusua/9353, registered in the name of the respondent and two of her sisters-in-law—as matrimonial property.

It found that the applicant had not demonstrated contribution or intention that it be treated as such.

Kaindi, who did not file any reply or submissions in the case, was ordered to execute all transfer documents to facilitate the change of ownership within 21 days, failing which the Deputy Registrar would act in her place.

“The defendant will execute documents to facilitate the change of ownership within 21 days of presentation to her. In default the same will be executed by the Deputy Registrar, As the respondent did not participate there shall be no order as to costs,” ruled the court.