MW v. AN

Nature of the Case

The parties had been married in 1990, and their marriage was terminated in court in 2011. During the marriage, they had acquired a parcel of land together in Nakuru, which the wife (plaintiff) alleges they then applied together on a loan for construction. The house was never completed, and the wife left to live in a different place in 2003. She brought this suit asking the sole matrimonial property to be sold and the proceeds shared. The husband (defendant) alleged that the wife had provided no contribution to the home, and therefore any sale or proceeds should go solely to him as the sole registrant of the house. The court ruled that the wife had materially contributed to the purchase of land and partial construction, even if this was not in a monetary manner, and thus was owed a remedy.

Summary

The wife brought the action in the High Court seeking a decision on the distribution of finances from the requested sale of what she alleged was a joint matrimonial property. The husband opposed the sale, claiming that he alone was the sole owner of the property as his name was on the registration, alleging that the wife had not contributed financially to the loan for land or construction of the home.

The court relied on the Matrimonial Property Act (MPA) no. 49 of 2013, which defines Matrimonial Property to mean: 1) matrimonial home or homes; 2) household goods and effects in the matrimonial homes or homes; and 3) any other immovable or movable property jointly owned and acquired during the substance of the marriage. The MPA also provides for how matrimonial property should be shared upon the dissolution of a marriage, specifically that it should vest in the spouses according to the contribution of either spouse towards its question. The MPA provision itself represented a shift from traditional Kenyan legal norms, which held that women could not own any property within the marital context. In terms of property, this progressive provision meant that each party to a marriage has a right of possession of matrimonial property that is based on their contribution in its acquisition, and does not rest on whether the property is registered in one spouse’s name over the other.

The court ruled that even though the property was registered in the husband’s name, it did not belong to him alone. The court recognized the non-monetary contributions that the wife made to the home, including through home and family management, childrearing, and working outside the home. The wife had materially contributed towards the purchase of the land and the subsequent construction of the matrimonial home, regardless of whether it was completed or that it was solely in the husband’s name on the registration. Thus, the wife had a claim for remedy. The court also held that a court must look at tangible and intangible material or financial contributions in the dissolution of a marriage, which for a long time had been given little or no value.

Enforcement of the Decision and Outcomes

The High Court ruled that the parties should have the LR Nakuru Municipality Block valued, sold, and share the proceeds of the share equally; share the cost of valuation equally; and that the plaintiff should receive half (1/2) the costs associated with the lawsuit.

Significance of the Case

The High Court ruling recognized the contribution that women make to the family and ruled specifically that non-monetary contributions to a family should be put into consideration during the dissolution of a marriage. The case contributed to the field of law that works to build equality within the family context in Kenya and globally and strengthened the interpretation of Article 45 of the Constitution regarding rights of each spouse to the ownership of matrimonial property. A justice in the case stated, “that the process where a woman bears the pregnancy, gives birth, and takes care of the babies and where after divorce or separation she takes care of the children single handedly without any help from the father of the children should matter in any debate on the division of matrimonial property.”

For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.