V W N v F N [2014] KECA 362 (KLR)

Article 45(3) entitles parties to a marriage to equal rights at and during marriage and at its dissolution. Sections 2, 6 and 7 of the Matrimonial Property Act, 2013 give effect to that right by defining contribution to include non-monetary contributions such as domestic work, child care, companionship, management of family business or property and farm work. Together these provisions breathe life into the constitutional rights and displace the earlier Echaria jurisprudence, so there is no uncertainty of law requiring Supreme Court settlement.

Applying the Supreme Court's principles in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, an intending appellant must show a substantial point of law, raised and determined below, whose determination transcends the case and bears on the public interest. The applicant failed this; the issue on gifts to children is settled by section 12 of the Matrimonial Property Act, and the retrospectivity issue was authoritatively determined in Agnes Nanjala William.

The Court relied on Agnes Nanjala William, which held that the Constitution must be given a broad and purposive interpretation that enhances fundamental rights, consistent with Samuel Kamau Macharia on non-importation of retrospectivity. Since the right to equality is inherent and indefeasible, it matters not that the cause of action accrued before the current constitutional dispensation. That authoritative determination removes any uncertainty of law on the question.