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How Should Matrimonial Property be divided following the break up of marriage?

Following a recent decision of the High Court of Kenya in Mbugua v Mbugua, LawAfrica's Charles Kanjama take us through a myriad of cases touching on sec. 17 of the Married Women's Property Act (1882)

The decision of the High Court in Mbugua v Mbugua has refocused judicial spotlight on the interpretation of section 17 of the Married Women’s Property Act. Section 17 of the Act, which concerns division of matrimonial property, states:
“In any question between husband and wife as to the title to or possession of property, either party may apply … to any judge of the High Court … and the judge … may make such orders with respect to the property in dispute … as he thinks fit.”

In Pettit v Pettit, an English decision repeatedly cited with approval in Kenyan courts, the House of Lords affirmed that s17 MWPA does not give a judge discretion to pass title of property from the legal owner to the other spouse. A few years later in Gissing v Gissing, Lord Morris was emphatic, “The court cannot devise arrangements which the parties never made. The court cannot ascribe intentions which the parties in fact never had.” In Gissing, however, Lord Reid held that where both spouses contribute to the purchase of property which is conveyed in the name of one spouse only, in the absence of a declaration of trust, the facts may impose an implied, constructive or resulting trust.

Pettit and Gissing, although superseded by statute in the U.K., are still good law in Kenya. However, contradictory interpretations of these cases in local courts continue to cloud our jurisprudence. In Karanja v Karanja, the court held that when property is purchased jointly by both spouses and registered in the name of the husband with the wife’s approval, a resulting trust can be inferred in her favour.

The Karanja decision was reaffirmed in Kivuitu v Kivuitu by Omolo, Ag JA (as he then was), who laid down the rule that where property acquired during coverture is registered jointly, it shall be presumed to be held in equal shares. In his obiter dicta, Omolo went further to presume that every wife has some interest in property acquired and registered in her husband’s sole name due to her indirect contribution occasioned by fulfilling the duties of a wife and mother.

In Essa v Essa, the court cited Pettit and purported to approve various passages of that decision that denied the court power under s17 MWPA to pass title to property from one spouse to another. Contradictorily, the court then granted the appellant a 50% share in property registered in the sole name of the respondent. This string of reasoning reached its zenith in Nderitu v Nderitu, where Kwach, JA fully endorsed and adopted the obiter dicta of Omolo, JA in Kivuitu. Kwach, Shah and Pall, JJ.A went further, relying on a post-1970 English authority to hold that, “in the absence of a clearly declared decision [of the spouses] the court does not consider how much one party or other contributes but decides on an equality of division.”

The appeal court therefore increased the appellant’s share in the disputed property, registered in the sole name of the deceased, from 30% to 50%. Without considering the provisions of the relevant property statutes or differentiating between singly and jointly-held properties, the Nderitu case anachronistically raised Kenyan law to parity with post-1973 amended U.K. law.

While advocates continue to grapple with these conflicting authorities, the Appeal Court has already begun to reverse the tide. Gicheru, JA was unequivocal in his partial dissent in Kimani v Njoroge: the applicant’s share in property acquired during coverture would depend on the existence of a resulting trust in her favour and be proportionate to her direct and/or indirect contribution to the same. While not expressly overruling th principles enunciated by Gicheru JA , the majority bench (Omolo & Lakha JJA) allowed the appeal on the basis of the 'patent bias' against women in Kuloba's judgement. The case was remitted to the high court for retrial.

Kamore v Kamore upheld Gissing and approved Gicheru’s dictum above. Tunoi, Shah and Bosire, JJ.A restated the principle that no trust will be implied where there is no evidence of contribution save in order to give effect to the intention of the parties. In this regard, the recent High Court decision in Mbugua v Mbugua leaves us again at a crossroads. Visram has given a well-reasoned decision setting out the principles to be considered in determining a section 17 application. The court has also dealt with the question, previously adumbrated in Mungai v Mungai of whether company shares - notwithstanding section 119 Companies Act - fall under the section 17 jurisdiction. A Court of Appeal decision to analyse the various

Cases cited in this analysis: (The cases in bold are available to subscribers to LLR)

1. Mbugua v Mbugua 2000 LLR 1136 HCK
2. Pettit v Pettit 1969 2 All ER 385
3. Gissing v Gissing 1970 2 All ER 780
4. Karanja v Karanja 1976 KLR 307
5. Kivuitu v Kivuitu 1985 LLR 1411 CAK
6. Essa v Essa 1995 LLR 384 CAK
7. Nderitu v Nderitu 1998 LLR 2731 CAK
8. Kimani v Njoroge 1997 LLR 553 CAK
9. Kamore v Kamore 1998 LLR 714 CAK
10. Kimani v Njoroge 1995 LLR 1169 HCK