Introduction
The question of entitlement to rental income derived from a matrimonial asset jointly contributed by spouses presents a complex intersection of property rights, equitable principles, and matrimonial law. In the context of Kenya’s legal framework, determining the rightful claimant to such income requires a careful analysis of statutory provisions, judicial interpretations, and the nature of each party’s contribution, whether financial or otherwise. This article undertakes a legal review of equitable distribution as it pertains to rental proceeds from matrimonial property.
What is considered Matrimonial Property?
Section 6 of the Matrimonial Property Act (Cap 152) (“the Act”) defines matrimonial property to include, matrimonial home or homes, household goods and effects therein, and any movable or immovable assets jointly acquired during the subsistence of the marriage. However, property held in trust including that governed by customary law is expressly excluded from this definition.
The Act further permits parties contemplating marriage to enter into prenuptial agreements to regulate their property rights. Such agreements may be set aside by the court if found to have been procured through fraud, coercion, or if they are manifestly unjust. Notably, the determination of rights over matrimonial property generally arises upon the dissolution of the marriage.
How does the principle of equitable distribution apply to matrimonial assets within the context of property division?
Under the maxims of equity, ‘Equality is equity’, fairness often requires equal treatment unless circumstances dictate otherwise. This principle is enshrined under Article 45 (3) of the Constitution of Kenya of 2010, which states;
“Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage”
The above provision of the Constitution of Kenya, 2010 has attracted divergent interpretations. One school of thought contends that it guarantees equal division of matrimonial assets between spouses, implying a 50:50 entitlement. Conversely, an alternative view maintains that distribution should reflect the respective contributions of each party whether financial or otherwise, thereby rejecting the notion of automatic equality and affirming a more discretionary approach.
Evolving jurisprudence relating to division on matrimonial property.
When dividing matrimonial property, courts interpret the relevant statutory provisions while considering the specific facts of each case. In modern jurisprudence, courts assess the nature of each party’s contribution, whether direct or indirect. A direct contribution involves actions such as paying part or all of the purchase price or securing a loan for the property. An indirect contribution includes supporting household expenses to enable the other spouse to acquire the asset, as well as providing care for children or managing domestic responsibilities that allow the other spouse to earn income.
Courts now recognize these indirect contributions, marking a departure from earlier decisions that required parties to only prove direct acquisition. In the case of Pettitt v Pettitt [1970] AC 777, the Lord’s chamber ruled that enhancements, particularly concerning the matrimonial homes is insufficient in supporting the principle of equitable distribution.
Kenyan jurisprudence has clarified the legal position on spousal contributions by expressly recognizing both direct and indirect forms of contribution in the division of matrimonial property, as outlined below.
Petition No. 11 of 2020 between Joseph Ogentoto (Appellant) and Martha Ogentoto (Respondent) and FIDA Kenya (1st Amicus Curiae) and Law Society of Kenya (2nd Amicus Curiae).
The Supreme Court affirmed the Court of Appeal’s decision, emphasizing that each spouse is entitled to a fair share of matrimonial property, determined by the nature and extent of their direct or indirect contributions. Accordingly, Article 45 (3) of the Constitution of Kenya, 2010 does not confer an automatic entitlement to an equal (50:50) division of property solely by virtue of marriage.
In the recent case of GCR v COO (Matrimonial Cause E003 of 2021) [2025] KEHC 11953 (KLR) , the High Court in Eldoret delivered a ruling addressing the contested division of rental income derived from matrimonial property. The brief facts of the case are as follows
In 2014, the parties began cohabiting without formalizing their union. At the time, Mr. COO had already acquired a plot in Munyaka Phase II, a residential area in Eldoret. Pursuant to a written agreement, the parties committed to jointly developing the property in anticipation of their intended marriage. Ms. GCR subsequently contributed KES 1,042,000.00 towards the property.
Following their wedding in 2017, the couple established the property as their matrimonial home and welcomed a child. Ms. GCR later made additional contributions amounting to KES 1,011,203.00, which included improvements to the house, construction of a perimeter wall, installation of electricity, plumbing, and other enhancements.
In 2019, the parties vacated the residence and opted to lease it, thereby generating rental income. Unfortunately, the same year marked the breakdown of their marriage, leading to separation. Ms. GCR approached the High Court, citing an imminent risk of interference by Mr. COO with the tenant occupying the property. She sought injunctive relief and requested a determination of the property’s status prior to the conclusion of the divorce proceedings. Specifically, she urged the court to declare the property matrimonial and to award her a 50% share. Mr. COO opposed the claim, asserting sole ownership on the basis that he had purchased the property prior to their relationship.
Honourable Justice Reuben Nyakundi held that the property constituted matrimonial property, recognizing Ms. GCR’s indirect contributions including child care, financial input, and substantial improvements made during the marriage between 2017 and 2019. The court affirmed that non-monetary contributions are equally relevant in determining equitable distribution.
Consequently, the court restrained Mr. COO from transferring or interfering with the property and directed the parties to explore, within 60 days of the judgment, one of the following options:
- Physical partition of the property;
- A buy out arrangement whereby one party compensates the other for their share; or
- Sale of the property and distribution of proceeds according to the determined shares.
This ruling emphasized the court’s discretionary authority to apply the principle that equality is equity in matrimonial property disputes involving rental income. It also highlights the importance of factors such as the duration of the marriage, the nature and extent of contributions, and custodial responsibilities in shaping equitable outcomes.
Conclusion.
The rightful claim to rental income from a contributed matrimonial asset is rarely a straightforward matter in Kenya. It demands a nuanced evaluation of each spouse’s contributions, both financial and non-financial. Yet, even the most equitable legal principles can be tested by ambiguity and conflicting expectations from parties.
This is where nuptial agreements come in as they offer clarity, predictability, and a proactive approach to division of matrimonial property. Specifically defining ownership structures, income entitlements, and contribution recognition, can prevent disputes, as discussed in detail in one of our other articles’, “Navigating Nuptial Agreements in Kenya”.
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