High Court Rule on Division of Property after Divorce

High Court Rule on Division of Property after Divorce


High Court of Kenya has ruled that spouses will share property after divorce based on the percentage of contribution during marriage.

FIDA has gone to court to contest a clause on the constitution that required spouses to share property based on percentage contribution, but the court dismissed the case, arguing that the constitution is clear and self-explanatory. However, FIDA was told to appeal if they wish to.

Here are the contested clauses:

7. Ownership of matrimonial property

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.

8. Property rights in polygamous marriages

(1) If the parties in a polygamous marriage divorce or a polygamous marriage is otherwise dissolved, the—

(a) matrimonial property acquired by the man and the first wife shall be retained equally by the man and the first wife only, if the property was acquired before the man married another wife; and
(b) 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 man and each of the wives.
(2) Despite subsection (1)(b), where it is clear by agreement of the parties that a wife shall have her matrimonial property with the husband separate from that of the other wives, then any such wife shall own that matrimonial property equally with the husband without the participation of the other wife or wives.


9. Acquisition of interest in property by contribution

Where one spouse acquires property before or during the marriage and the property acquired during the marriage does not become matrimonial property, but the other spouse makes a contribution towards the improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made.


It is bad news for women who had hoped their cries would be heard. From now henceforth, each partner in a marriage should make their contributions for them to claim a portion in case of divorce.