Authored By: LYNCY TONIQUE OYUGA
Daystar University
INTODUCTION.
In the face of inadvertent injustice, the law stands as the shield and defender for the vulnerable, but where is the line drawn between justice being done and justice being seen as done. The legal conundrum on matrimonial property in Kenya has been one experiencing constant evolution with no clear certainties as the courts continue to tussle back and forth with the law and the lived experience of the citizen. The common law and customary law having played a key role in this and subsequently the Married Women Property Act,[1] the impact is evident not only in rem but also in conscience. The enactment of the Matrimonial Property Act[2] has had limited impact as the judiciary clings to repealed laws to continue making decisions in an evolved society. The recent decision of the Court of Appeal quorum sitting at Nakuru with concurring opinions from Warsame JA and Korir JA and a dissenting opinion from Ngugi JA has sparked discussions in interpretation of what entails matrimonial property.[3] There however lies a disconnect in how the law is written and how the courts have consistently applied it. Therefore, sparking a need for this timely discussion in the profession.
This research seeks to explore the definition of matrimonial property under Kenyan jurisprudence and the place of spousal consent in the sale or lease of such property. This will be done through giving a brief historical background and the developments in the area as it currently stands and the impact of the current judicial decisions on its evolution.
LEGAL FRAMEWORK AND HISTORICAL DEVELOPMENT OF MATRIMONIAL PROPERTY.
During the pre-colonial period, women were not allowed to own property under their name as they themselves in some communities were considered to form part of property. This culture left the women in a vulnerable position as they could only depend on informal mechanisms to acquire money and would not be able to advance themselves financially since they had no access to financial institutions. These circumstances left wives with no rights to their husband’s property, and upon death or divorce, they would be left with no recourse. These systemic gender disparities treated male dominance as legitimate and created a social power hierarchy that reduced women to economic marginalization and social vulnerability.[4]
The colonial era was not much different as it brought with it a fair share of issues but also, some sought of recourse was available for women. The Married Women Property Act (MWPA), allowed women to engage in financial transactions without requiring a man’s name and further to own property such as land. However, even with these incredible advancements, women faced challenges especially relating to property acquired during subsistence of marriage and its division at the point of divorce. It is no anomaly that a title deed is the clear and unequivocal evidence of land ownership. The shift of ownership, from the customary law which only allowed men to own property to women also being recognized as owners was not a reality that was mirrored with matrimonial property as men still retained title under their names solely, under the guise of “what belongs to me belongs to you”.[5] These difficulties were further advanced by the lack of opportunity for women to monetarily contribute to the acquisition of that property therefore still placing the males at an advantageus position.
The landmark case of Echaria v Echaria created a timely shift as the court of Appeal set precedent enumerating that non-monetary contribution should be considered by courts in determining the beneficial interest a spouse may have in matrimonial property. The court vehemently declared that any substantial indirect contribution is important to determine an equitable title in matrimonial property.[6]
The Constitution of Kenya 2010 further came as a beacon of hope recognizing that parties to a marriage have equal right before, during and even at the dissolution of marriage.[7] This was variedly interpreted in courts with some taking the position declaring equal division (50:50) of all property acquired during subsistence of a marriage but the long-standing decision of contribution has stood the test of time.[8] It has been argued that granting a 50:50 share on the ground of marital relation amounts to unjust enrichment as marriage should not be used as a ticket for acquiring property. The principles of equity also illustrate the same. This wave of constitutional revolution led to the landmark decision of the Supreme Court which upheld the decision of Echaria v Echaria that a spouse should get a share of matrimonial property according to their contribution either monetary or non-monetary. The particular case of JOO v MBO was filed in 2010 before the enactment of the Matrimonial Property Act. The Supreme Court in its decision clearly stated that they would apply the MWPA since the just then enacted law could not act retrospectively. Therefore, with this in mind, the decision formerly made by the Court of Appeal was upheld.[9]
The Marriage Property Act was enacted in 2014 and clearly outlaws the MWPA.[10] Eyebrows are therefore raised when the courts still insist to make case analysis and decisions based on the same outlawed legislation. This therefore begs the question, is this a matter delaying inevitable change or does the patriarchy run that deep?
ANALYSIS OF THE DECISION IN RESMA COMMERCIAL AGENCIES v NGATTHA
What Constitutes Matrimonial Property?
Matrimonial property is clearly defined under the Matrimonial Property Act as property which constitutes matrimonial homes, house hold goods therein and any other movable and immovable property acquired during subsistence of the marriage.[11] In most cases, the issue of determination comes up under division of property where divorce has taken place but in the Ngattha case, the marriage was not broken. Therefore, this leads to question whether the issue of contribution really does arise as a contention in determining whether the property constitutes matrimonial property.
In the case aforementioned case, the 2nd respondent sold the house in which they had resided with the 1st respondent and the children for seventeen years without her consent. It is not in contention that the 1st and 2nd respondent were married for a period of three decades and further had children together. It is also explicitly stated that they had acquired various property together during subsistence of the marriage. The property in contention was one located in Nakuru where they had relocated to after selling their home in Laikipia.
According to the law, if the name of one spouse is not in the deed, they have to prove beneficial interest through contribution. The wife in this case stated that she consented to the selling of the home at Laikipia after mortgage payment for the home in Nakuru had become heavy on the family. The proceeds from the sale were therefore to go towards servicing of the said mortgage. However, the 2nd respondent channeled the money towards other endeavors such as building hotels. The 2nd respondent completed a sale agreement of the Nakuru Property with the appellant without the express written consent of the 1st respondent.
The appellant argues that it was a bona fide purchaser for value and further that they conducted their diligence by doing a search at the registry which illustrated the 2nd respondent as the sole owner as his name was the only one on the title. At the point of filing this suit, the appellants were seeking for evacuation of the 1st respondent. The law however clearly sates the matrimonial home shall not be mortgaged, leased or sold without the written and informed consent of both spouses.
The Place of spousal consent in disposition of matrimonial property
Spousal consent is a precaution that has been put in law in order to protect the interests of vulnerable parties in dispossession of matrimonial property which is normally women. The argument by the appellant that the 1st respondent had no interest in the land as her name did not appear in the register of lands is a blatant disregard to the conveyancing procedures and laws. Further, the fact that they were next door neighbors infers a knowledge of the 1st respondent as the wife to the 2nd respondent and a conscious decision not to inquire of her written consent. This therefore flaws the title as the buyer cannot acquire a better title than that which the seller had. The wife had sworn an affidavit exhibiting contribution towards the acquisition of the property and further testified the same in court. The husband albeit contending in the first instance, witnessed to corroborate her evidence at the trial court after the wife’s death.
The analysis of the majority decision of the court was further flawed as they only put into consideration financial contribution. The argument that only bank statements and book keeping records should be considered when making determination clearly goes against the principles established in law. To demand bank statements as the only acceptable proof of contribution is to privilege a male-coded documentary economy, as most of women’s contributions occur in domestic spaces and subsistence enterprises where no formal accounting exists.[12]
The court before coming to a conclusion of the matter should have instructed the appellant to produce the 1st respondents written consent as part of their evidentiary documents if it was truly obtained as they so alleged since it forms part of the documents to be provided to the Land registrar before conveyancing of title.
PROPERTY OWNERSHIP AS A HUMAN RIGHT.
The Constitution clearly provides for the right to own property as an individual or in association with others.[13] This right is not just marginal but also interferes with an individual’s right to dignity and the right to life. The quality of life and even health is largely affected by the environment one lives in. Therefore, the action of leaving women homeless after many years of building in their marriage is not to be taken as a trivial matter. The court is not called to really on sentimentalities but rather to take into keen consideration the realities of women whose right to dignity and life continues to be jeopardized due to inability to prove financial contributions.
Judicial officers are the architects of society but they should not work independent of the realities and experiences of the people as it is those very experiences that shape the society. Legislator’s outlaw one law and put another in place not necessarily because it is bad law but because the society has shifted and the law no longer meets their needs hence amendment. Women are therefore not granted the right to own property as a form of tokenism but as a form of equity just because they deserve dignity as any other human being. This is not a matter of women rights but one of human rights.
It is time for a pragmatic shift not just in words but in actions. The judiciary should therefore take a front seat to ensure that personal beliefs do not interfere with the administration of justice because, a judicial decision is not just a file closed, but may also be hope and dignity restored. It moves beyond the court room and impacts the next steps in someone’s life to either destruction or reconstruction. Therefore, what impact does the court seek to pursue?
CONCLUSION
The question on whether equity will prevail over patriarchy ultimately concerns what kind of society we wish to build not only as a nation. Will we be a society that values the right to property, life and dignity? Or will we sacrifice these values to facilitate the patriarchal beliefs that have long shackled our society.
The law provides clear answers. Constitutionally, Article 40 protects the right of every individual to own property. Article 45(3) protects the interest of every party in a marriage as they both have equal rights even at the point of dissolution of such union. Statutorily, the Matrimonial Property Act protects the interest of spouses by requiring a written informed consent before sale of any matrimonial property. The Land Registration Act creates a presumption of joint tenancy in matrimonial property and even when only one name is on the title deed the other party has an overriding beneficial interest therefore, spousal consent is required before a conveyancing of title is authorized.
The law has clearly outlined the rights and the principles to be followed. Therefore, the ball lies not on the coat of legislators but on that of the interpreters. In defending these principles, we defend not merely legal doctrine but human dignity itself. We affirm that women are also part of humanity, and that their contribution though not monetary goes a long way towards enabling the building of a home. This is the foundation upon which a just and humane legal system must be built.
REFERENCE(S):
Cases.
Echaria v Echaria [2007] KECA 504 (KLR)
JOO v MBO [2023] KESC 4 (KLR)
Resma Commercial Agencies v Ngattha [2025] KECA 2214 (KLR)
Resma Commercial Agencies v Ngattha [2025] KECA 2214 (KLR), Ngugi J dissenting opinion, para 3
Legislation.
Constitution of Kenya 2010
Married Women Property Act 1882
Matrimonial Property Act 2014
Secondary sources.
Athena D. Mutua ‘Gender Equality and Women’s solidarity Across Religious, Ethnic and Class Difference in the Kenyan Constitutional Review Process’, 13Wm. & Mary J. Women & L. 1 (2006) https://digitalcommons.law.buffalo.edu/journal_ /articles/431 accessed 10 February 2026
Christine Maina ‘What’s Yours is Mine or What is Mine is Mine- Status of Matrimonial Property in Kenya’ https://mman.co.ke accessed 11 February 2026;
Pamela Ager and Blenda Nyahoro ‘Splitting the Difference: Supreme Court Hands Down a Landmark Decision on Matrimonial Property in Kenya’ (2023)
Vivian Mwende, ‘My Husband Wants to Sell our City Home Without my Consent’ Daily Nation (Nairobi, 22 July 2023)
[1] Married Women Property Act 1882
[2] Matrimonial Property Act 2014
[3] Resma Commercial Agencies v Ngattha [2025] KECA 2214 (KLR)
[4] Athena D. Mutua ‘Gender Equality and Women’s solidarity Across Religious, Ethnic and Class Difference in the Kenyan Constitutional Review Process’, 13Wm. & Mary J. Women & L. 1 (2006) https://digitalcommons.law.buffalo.edu/journal_ /articles/431 accessed 10 February 2026
[5] Christine Maina ‘What’s Yours is Mine or What is Mine is Mine- Status of Matrimonial Property in Kenya’ https://mman.co.ke accessed 11 February 2026; Vivian Mwende, ‘My Husband Wants to Sell our City Home Without my Consent’ Daily Nation (Nairobi, 22 July 2023)
[6] Echaria v Echaria [2007] KECA 504 (KLR)
[7] Constitution of Kenya 2010, Art 45(3)
[8] Pamela Ager and Blenda Nyahoro ‘Splitting the Difference: Supreme Court Hands Down a Landmark Decision on Matrimonial Property in Kenya’ (2023)
[9] JOO v MBO [2023] KESC 4 (KLR)
[10] n2, s 19
[11] ibid, s 6
[12] Resma Commercial Agencies v Ngattha [2025] KECA 2214 (KLR), Ngugi J dissenting opinion, para 3
[13] Constitution of Kenya 2010, Art 40
