Kenya: Court - Proof of Divorce Needed in Dividing Marital Property

8 October 2019

Married couples cannot divide their matrimonial property upon separation without a court's decree of divorce or any other proof that the marriage between them is dissolved, the High Court in Nyeri has ruled.

Justice Jairus Ngaah held that a couple's separation does not dissolve their marriage union and the properties remain indivisible until a decree is issued dissolving the marriage.

Justice Ngaah said the essence of Section 7 of the Matrimonial Property Act, 2013 on ownership and division of matrimonial property, is that it does not matter how long a duly married couple may have been separated.


While ruling on a case filed by a man seeking an order to divide property he co-owns with his estranged wife, the judge said a court cannot purport to exercise its inherent jurisdiction and order for the division.

The man, named as Mr DMW, made the application on sub-division of the matrimonial property after his efforts to obtain a divorce decree flopped.

The divorce petition filed in 2014 was dismissed by a magistrate's court with Judge Ngaah explaining that had it succeeded, the man would have had a chance in the matrimonial suit.


The couple has been separated since 2007 and is living under judicial separation since 2016 following a declaration that they were no longer bound to live together, the court heard.

They married in 1996 under Kikuyu customs but later in 2003, solemnised their union under the African Christian marriage.

The man told the court that he and his wife named Ms LMM separated in 2007 and since then, more than ten years later, they had never cohabited or lived together.


As long as the magistrate court's decision dismissing his petition is not overturned and the marriage dissolved, Justice Ngaah said Mr DMW is bound by the knot he tied with his wife.

"With the subsistence of their marriage, their matrimonial properties remain indivisible and this is the reality that both of them have to live with," stated the judge.

The mam wanted the court to invoke its inherent powers and order for division of two prime properties to severe the proprietorship in common.

The properties are situated within Nyeri town and registered in the couple's joint names.

The man had asked the court to restrain his wife from alienating, disposing or interfering in any other way whatsoever with the properties.


The man explained that the assets were purchased through their joint efforts in the course of their marriage although he made a larger contribution towards their acquisition.

But while declining to order the couple to share the property, Justice Ngaah said it is commonplace that where, either by express provision of the statute or by its necessary implication, a particular issue has been addressed, a court of law cannot ignore it under the guise of exercising its inherent jurisdiction.

The court would only intervene to meet the ends of justice where the law is lacking in some respect, he said.


"Irrespective of the period of separation, the court cannot purport to exercise its inherent jurisdiction and order for division of the property between them. Put another way, the court cannot deliberately ignore the express provisions of the Matrimonial Property Act, 2013 in the name of exercising its inherent jurisdiction," Justice Ngaah told the man.

The court noted that there was no evidence that the properties were held in any sort of trust and neither was there any agreement prior to the parties' marriage to determine their property rights.

"My understanding of the provision of the mother law is that there is nothing in it that subscribes to sharing out of the matrimonial property between married couples during their marriage. If anything, Article 45 promotes the unity of a family as a natural and fundamental unit of society necessary for social order and therefore deserving State recognition and protection," said Justice Ngaah, while terming Mr DMW's application as misconceived.

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