JOO v MBO & 2 others

The Supreme Court applied the general rule against retrospective application of statutes from Samuel Kamau Macharia & another v KCB & 2 others, noting that the Matrimonial Property Act, 2013 does not contain express words or necessary implication for retrospective effect. The Court also relied on section 23(3) of the Interpretation and General Provisions Act, which preserves rights and proceedings under repealed laws. However, the Court distinguished the Constitution, holding that Article 45(3) can be applied retrospectively because its language does not bar such application and a Constitution is not subject to the same principles against retroactivity as ordinary legislation.

The Court reasoned that Article 45(3) deals with equality of fundamental rights, not redistribution of property. It protects the right to property under Article 40. The Court approved the reasoning in Echaria that marriage alone does not entitle a spouse to a beneficial interest. It also adopted the persuasive opinions of Kiage JA in PNN v ZWN and Tuiyott J in UMM v IMM, which held that equality does not translate to automatic 50:50 division. The Court emphasized that contribution, whether direct or indirect, must be proven, and the division must be fair and equitable based on the circumstances of each case.

The Court reviewed the evidence, including loan application forms and the respondent's employment history, and agreed with the Court of Appeal that the respondent had proven contribution. The Court cited Burns v Burns for examples of indirect contribution, including contributing to family expenses and caring for the home and children. The Court held that the Court of Appeal properly analyzed the evidence and found that the respondent's contributions, including loans for school fees and construction, entitled her to a 50% share. The Court rejected the appellant's argument that only direct financial contribution counts.