Dissecting The Impact Of “Ogentoto” : Equality In Marriage Vs. Proving Contribution In Matrimonial Property

Introduction

Kenyan jurisprudence on matrimonial property rights recently got a landmark authority when the Supreme Court of Kenya issued its judgement in Joseph Ogentoto Vs. Martha Ogentoto & 2 Others SC Petition No. 11 of 2020 (“Ogentoto”). The apex court took up the appeal as a matter of general public importance pursuant to Article 163 (4) (b) of the Constitution of Kenya, 2010. 

The country is still implementing provisions of the 2010 constitution and legislation enacted in the new constitutional dispensation. This implementation occasionally calls for the Supreme Court’s interpretation on various contentious provisions. Some of the landmark judgements and advisory opinions include; Advisory Opinion No. 2 of 2012 on the Two-thirds Gender Rule in Article 81(b) of the Constitution, the Mitu-Bell Welfare Society judgment on structural interdicts in the enforcement of socio-economic rights in Article 43 and the three presidential election petition judgements on the conduct of our general elections. 

Ogentoto was similarly consequential to the interpretation of Article 45(3) of the Kenyan Constitution. Article 45 (3) states that “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 meaning of Matrimonial Property 

Section 6 of the Matrimonial Property Act, No. 49 of 2013 (the “Act”), defines matrimonial property to include: 

1. the matrimonial home;
2. household goods and effects in the matrimonial home (s); and 
3. movable or immovable property jointly owned or acquired during the subsistence of marriage. 

Indeed, matrimonial interest over property is recognized by our various laws. Section 79 (3) of the Land Act, no. 6 of 2012, requires spousal consent in creating a charge over the matrimonial property. Similarly, Section 12 of the Matrimonial Property Act mandates spousal consent for any alienation with respect to matrimonial property in Kenya – be it by way of sale, lease, gift or otherwise.

Notably, the Matrimonial Property Act in Section 13 (a) provides that marriage does not affect the ability of spouses to own property separately. Section 14 of the Act, however, provides that there is a rebuttable presumption that property acquired during marriage and registered in the name of one spouse is held in trust for the other spouse. Therefore, any determination as to matrimonial interest in property held in the name of one spouse requires a careful examination of the unique circumstances to ascertain the extent of spousal interest. 

The Matrimonial Property Act was enacted in 2013, three years after the promulgation of the Constitution of Kenya, 2010. Previously, the UK’s Married Women’s Property Act of 1882 was the applicable legislation to matrimonial property causes in Kenya. 

The Supreme Court noted in Ogentoto that the originating summons for division of the matrimonial property were filed before the Matrimonial Property Act was enacted and would, therefore, be determined under the Married Women’s Property Act. The same was guided by the court’s ruling that the Matrimonial Property Act could not be applied retrospectively. However, Married Women’s Property Act. was procedural and did not provide substantial guidance on the determination of contribution. 

Before the Act came into force, Kenyan courts had laid down precedents on the division of matrimonial property. The most notable was Peter Mburu Echaria Vs Priscilla Njeri Echaria [2007] eKLR (“Echaria”), which dwelt on contribution, especially tangible financial contribution. 

Monetary and Non-Monetary Contribution

The bone of contention any time courts distribute matrimonial property is the extent of each party’s contribution to the acquisition or improvement of matrimonial property. Ogentoto reiterated the centrality of ascertaining contribution in the division of matrimonial property.

What does contribution mean? Section 2 of the Matrimonial Property Act provides a functional definition, stating that it means both monetary and non-monetary contributions. Non- Monetary contribution includes domestic work and management of the matrimonial home, child care, companionship, management of the family business and farmwork.

Upon dissolution of marriage, Section 7 of the Act provides that ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition. The exception to this provision is if there is an agreement on property rights before marriage under section 6(3) of the Act. Further, section 9 of the Matrimonial Property Act provides that a spouse can acquire beneficial interest to property that is not matrimonial property by virtue of their contribution.

The obvious challenge from these provisions is how to quantify non-monetary contribution. For monetary contribution, there is paperwork and values attached to the contribution. How do you calculate companionship or the value of child care? These are not as straightforward as Section 2 of the Matrimonial Property Act would make them seem. Indeed, Mativo J. (as he was then) in Federation of Women Lawyers Kenya (FIDA) Vs. Attorney General & Another [2018] eKLR, stated that courts ultimately determine the extent of contribution on a “case by case basis.”

Contribution under the lens of Article 45 (3) of the Constitution 

In, FIDA Vs AG (supra), the petitioner sought to challenge the constitutionality of Section 7 of the Matrimonial Property Act on the grounds that it offends Article 45 (3) of the Constitution. The precise meaning of equality was a core issue in Ogentoto as well. FIDA argued that this section disadvantages a spouse who makes non-monetary contributions, essentially bringing into question the actual equality of spouses in a marriage. 

The Court of Appeal in PNN Vs ZWN [2017] eKLR also examined this issue. Kiage J.A., in his concurring opinion stated that in his view, Article 45 (3) declares marriage to be a “partnership of equals” and protects either spouse against any forms of gender superiority, violence and exploitation. He reiterated the role of fairness and conscience in dividing matrimonial property rather than making it a “matter of mathematics merely as in splitting of an orange in two.” Justice Kiage cautioned poetically against turning marriage into a passport to fifty percent wealth regardless of what one does in that marriage. 

The Supreme Court in Ogentoto agreed with this line of thought and stated that no party should either be “unfairly denied what they deserve or unfairly given more than what he or she contributed” towards the matrimonial property. The learned Justices also cited the English case of Pettitt Vs Pettitt where Lord Morris stated as follows, “in a question as to who has the title to property, the question for the court was; ‘whose is this?’ and not ‘to whom shall this be given?’”

Therefore, the superior courts in Kenya take the position that the equality in marriage in Article 45 (3) concerns the status of parties to a marriage rather than providing a yardstick for the determination of their proprietary rights. The Supreme Court in Ogentoto found that there is no automatic 50:50 split of matrimonial property upon dissolution of marriage and that each court determination is on the basis of monetary and non-monetary contribution by the spouses and that each case will turn on its own facts.

Conclusion 

Twelve years after the promulgation of the Constitution of Kenya, 2010, the Supreme Court continues to provide vital guidance on the interpretation of constitutional provisions. Ogentoto is notable for shedding further clarity on Article 45 (3) of the Constitution. The equal rights during and after dissolution of marriage, as enshrined by this provision, were held to refer to general fundamental rights and freedoms and not a basis for allocating proprietary rights upon dissolution of marriage. 

Understandably, there will be those who view this decision as a rollback of the progressive intentions of the Constitution of Kenya, 2010, particularly for women who may find it difficult to prove their non-monetary contribution. The Supreme Court was equally yoked with these considerations in its lengthy judgement. 

Ultimately, Ogentoto should be digested as a nuanced decision and not for its positions on specific issues taken as conveniently worded headlines. The judgment’s rejection of automatic 50:50 sharing of matrimonial property does not preclude a spouse who can prove equal contribution, whether direct or indirect, to matrimonial property from proceeding to prove their legal entitlement, including a 50% share. Similarly, this decision should not be taken as an absolute endorsement of Echaria, whose perceived harshness is ameliorated by the provisions on the Matrimonial Property Act on non-monetary contribution.