The Court of Appeal has maintained that there would be no automatic equal division of matrimonial property, dealing a blow to a woman who had sought half of a Sh179 million estate in a bitter divorce case.
In a judgment that reinforces the legal position on matrimonial property division, appellate judges upheld a High Court decision awarding the woman only 25 percent of the marital assets while her ex-husband retained 75 percent, based on their respective contributions to the marriage.
The three-judge bench emphasised that property division must reflect proven contributions – both financial and non-financial – rather than assumptions of equal entitlement.
“It is a fatal misconception for a man or woman to think that being married is a passport to 50 percent of matrimonial wealth,” the judges ruled. “Contributions must be demonstrated, not merely claimed.”
They stated: “It is not enough for a party to say they have contributed when they have nothing to show for such contribution, be it monetary or non-monetary, beyond their say so.’
The case involved a high-flying corporate executive and his wife, whose 14-year marriage spanned seven countries before collapsing in 2012. Court records show the couple lived in Kenya, Tanzania, the United Kingdom, China, Cambodia, Indonesia, and Ethiopia during their union.
At the centre of the dispute were prime properties, including a four-bedroom house in Karen, a three-bedroom semi-detached house in the UK, beach land in Shimoni, Kwale, cash in multiple bank accounts in Kenya, the UK, and Indonesia.
Also at stake were investments accumulated during the marriage, including two luxury vehicles.
According to the court record, the couple blamed each other for the breakdown of the marriage. The man, identified in court papers as Mr JAV, accused the woman, Ms NWM, of willingly refusing to find a job despite her high academic qualifications.
Instead, she spent most of her time indoors, getting inebriated day and night, and eventually became an alcoholic. This led to her being irritable with a bad and uncontrolled temper.
Ms NWM, on her part, accused the ex-husband of being cold, distant, and secretive, and wanting to kill her and their adopted child by poisoning.
Ms NWM had sought an equal share of the property, arguing her homemaking role and support for her husband’s international career constituted a substantial non-financial contribution.
Her ex-husband countered that he was the sole financial provider, presenting bank records showing earnings exceeding Sh179 million.
He accused her of withdrawing Sh42 million from joint accounts as their marriage crumbled.
The High Court in 2018 found the husband contributed 95 percent financially, while the wife’s monetary input was just five percent. However, it recognised her non-monetary contributions, including childcare and supervising the construction of their Karen home, awarding her 25 percent of the estate.
In her appeal, Ms NWM argued the trial judge undervalued non-financial contributions and failed to apply constitutional principles of spousal equality. She insisted that jointly registered property should be presumed equally owned.
The appellate court dismissed these arguments, ruling that equality in marriage does not automatically mean equal property shares. The judges noted that the husband had provided detailed financial records proving he funded nearly all acquisitions.
‘It is not enough for a party to say they have contributed when they have nothing to show for such a contribution,’ they added.
The court also held that the presumption of equal ownership in jointly registered property can be rebutted by evidence showing unequal contribution. In this case, the judges ruled that the husband had successfully displaced that presumption.
On the Sh42 million withdrawals, the court agreed with the High Court that the money should be treated as part of Ms NWM’s share since she could not account for its use.
The judges also rejected her bid for the Karen home, noting this would push her share to nearly 80 percent, far beyond what her contributions warranted.
The court concluded that the 25:75 division was fair and consistent with the evidence presented.
It also rejected claims that the trial court ignored the current legal framework, finding that it properly applied the law on matrimonial property.