In Kenya, property inheritance is a contagious issue, which is dealt with by the law. When a spouse dies, he leaves behind assets, and in most cases many families end up in court to seek for interpretation of the law regarding sharing of the property. Since there is a law that governs this process, the court gives a verdict based on the following facts.
The first section is to define key words used in this law.
“contribution” means monetary and non-monetary contribution including-
- domestic work and management of the matrimonial home;
- child care
- management of family business or property; (See definition below)
- farm work;
“family business” means a business run for the benefit of the family and which generates income or other resources for the benefit of the family;
“matrimonial home” means property owned or leased by one or both spouses and which is occupied as their family home
- extends to any property attached to the matrimonial home (would therefore cover servant quarters, gardens, extensions);
matrimonial property” means either the:
- matrimonial home
- household goods and effects in the matrimonial home
- any movable or immovable property jointly owned and acquired during the marriage
– trust property, including property held in trust under customary law, does not form part of
“spouse” means a husband or a wife
We start by looking at what Islamic law says about property inheritance and family asset distribution.
APPLICATION OF ISLAMIC LAW (Section 3)
- People who profess Islamic faith have the option of Islamic law in all matters relating to matrimonial property.
EQUAL STATUS OF SPOUSES (Section 4)
A Muslim married woman has the same rights as a married man:
- to acquire, administer, hold, control, use and dispose of property whether movable or immovable;
- to enter into a contract; and
- to sue and be sued in her own name.
RIGHTS AND LIABILITIES OF INDIVIDUALS (Section 5)
▪ property acquired or inherited before marriage is not part of matrimonial property
PRENUPTIAL AGREEMENTS (Section 6(4))
Parties to an intended marriage may enter into a prenuptial agreement to determine their property rights
Courts may set prenuptial agreement aside on the grounds of fraud, coercion or manifest injustice.
OWNERSHIP OF MATRIMONIAL PROPERTY (Section 7)
- Where there is no prenuptial agreement, matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided (not equally) between the spouses (emphasis supplied)
PROPERTY RIGHTS IN POLYGAMOUS MARRIAGES (Section 8)
If the parties in a polygamous marriage divorce or a polygamous marriage is otherwise dissolved
◦ matrimonial property acquired by the man and the first wife, before the man married another wife, shall be retained equally by the man and the first wife only;
◦ matrimonial property acquired by the man after the man marries another wife shall be regarded as owned by the man and the wives taking into account any contributions made by the parties;
◦ it is possible for a wife to hold her matrimonial property with the husband separate from that of the other wives;
◦ any wife can own matrimonial property equally with the husband without the participation of the other wife or wives.
ACQUISITION OF INTEREST BY CONTRIBUTION (Section 9)
- A spouse who makes a contribution towards the improvement of a non-matrimonial property, acquires a beneficial interest in the property equal to the contribution made.
SPOUSAL LIABILITIES ( Section 10)
- Any liability incurred by a spouse before the marriage remains the liability of the spouse who incurred it.
- Parties to a marriage share liabilities incurred during the marriage for the benefit of the marriage equally.
- if property becomes matrimonial property, any liability reasonably and justifiably incurred are shared equally by the spouses unless they otherwise agree,
- Parties to a marriage equally share liabilities or reasonable and justifiable expenses incurred for the benefit of the marriage.
CUSTOMARY LAW (Section 11)
10.1 Customary law principles, subject to the Constitution, may be considered in division of matrimonial property,
10.2 The principles of customary law applicable to division of matrimonial property include
- customary laws relating to divorce or dissolution of marriage;
- protection of rights of future generations to community and ancestral land (See Article 63 of the Constitution);
- access and utilization of ancestral land and the cultural home by a wife or former wife
Under the customer law, the couple is required to register the marriage at the office of the Registrar of Marriages.
SPECIAL PROVISIONS ON MATRIMONIAL PROPERTY (Section 12)
Matrimonial property cannot be sold, leased or mortgaged during a monogamous marriage without the consent of both spouses (See section 12(1)).
Spouses in marriages, including the man and any of the man’s wives in the case of a polygamous marriage, have an interest in matrimonial property capable of protection by caveat, caution or any law in force on registration of title deeds.
A spouse shall not, during the subsistence of the marriage, be evicted from the matrimonial home by or at the instance of the other spouse except by order of a court.
A spouse shall not be evicted from the matrimonial home by any person except-
- in execution of a decree;
- by a trustee in bankruptcy; or
- by a mortgagee or chargee in exercise of a power of sale or other remedy
The matrimonial home shall not be mortgaged or leased without the written and informed consent of both spouses.
Commentary on Section 12(1)
Section 12(1) would imply that spousal consent in disposing of matrimonial property is only required in monogamous marriages. The position as to spouses in polygamous marriages including those living in the matrimonial home or those who co-own the home seems unclear and inconsistent with the provisions of the Land Registration Act, Cap 300.
It is instructive to note that, vide section 5, the Land Registration Act (Cap 300) prevails over practices or procedure relating to land in any cases of inconsistency. Predictably, section 12(1) the Court might soon be called upon to resolve the ambiguity.
SEPARATE PROPERTY (Section 13)
Marriage does not affect the right of either spouse to own, or dispose of any property other than matrimonial property
PRESUMPTIONS AS TO PROPERTY ACQUIRED DURING MARRIAGE
Where matrimonial property is acquired during marriage—
- in the name of one spouse, there is a presumption that the property is held in trust for the other spouse; and
- in the names of the spouses jointly, there’s a presumption that their beneficial interests in the matrimonial property are equal.
GIFTS TO A SPOUSE (Section 15)
- Where a spouse gives any property to the other as a gift during the marriage, there’s a presumption the gift belongs absolutely to the receiving spouse.
LIABILITY FOR PREVIOUS DEBTS (Section 16)
- A spouse is not liable, solely by reason of marriage, for personal debts incurred before the marriage by the other spouse
COURTS ACTIONS (Section 17)
A person may apply to a court for a declaration of rights to any contested matrimonial property in accordance with prescribed procedure-
- as part of a petition in a matrimonial cause; and
- even where a petition has not been filed under any law relating to matrimonial causes.
NOTE: The Married Women Property Act, 1882 is no longer applicable to matrimonial causes Kenya
Commentary on Act
The Act which takes into account non-monetary contribution to the acquisition of matrimonial property renders the five bench Court of Appeal decision in Court of Appeal decision in Echaria v Echaria, bad law. The Court of Appeal held that non-monetary contribution in kind did not count and that a wife had to prove direct financial contribution.
The Act should bring some fairness in the acquisition, ownership and division of matrimonial property in Kenya.