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Court of AppealPartially AllowedCivil Appeal No. 231 of 2018· [2020] KECA 188 (KLR)

EGM v BMM [2020] KECA 188 (KLR)

Court of Appeal
20 November 2020
HOHannah OkwenguPKP. O. KiageSKS. ole Kantai
2,442 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that marriage equality does not automatically mean property is split 50:50 when a marriage ends.

What this practically means

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Executive summary

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The respondent, BMM, filed an Originating Summons under Section 17 of the repealed Married Women's Property Act 1882 seeking a declaration that properties registered in the name of the appellant, EGM - land, motor vehicles, shares, a life assurance policy, cash deposits and domestic goods - be declared jointly owned and shared equally. The High Court (Musyoka, J.) granted the orders, holding that Section 7 of the Matrimonial Property Act, 2013 conflicted with Article 45(3) of the Constitution and that the constitutional equality provision must prevail, warranting equal division. The appellant appealed on 12 grounds, principally that the judge failed to apply the Matrimonial Property Act, 2013, retrospectively applied the Constitution, and disregarded each spouse's financial contributions. The Court of Appeal allowed the appeal. It held that Article 45(3) concerns equality of fundamental rights and freedoms of spouses and does not entail redistribution of property rights or an automatic 50% share; entitlement must be assessed according to respective contribution under Section 7 of the Act, which the Court found consistent with, and effectuating, the constitutional principle. The High Court judgment dated 3rd May 2017 was set aside and the suit remitted for re-hearing at the Family Division by a Judge other than Musyoka, J., with each party bearing its own costs.

Key legal issues

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01

Interpretation of Article 45(3) of the Constitution on spousal equality at dissolution of marriage

Holding

Article 45(3) deals with equality of fundamental rights and freedoms of spouses; it does not create an automatic 50% proprietary share for each spouse.

Reasoning

The Court held the High Court judge's interpretation textually and contextually untenable. Reading an automatic 50:50 division into the sub-Article imports what the text does not ordain. Equality means courts must ensure each party gets a fair share in accordance with their respective contribution, not an equal split by default. The Court adopted the reasoning in M E K v G L M and Kiage, JA's concurring dicta in P N N v Z W N.

p. 3
02

Whether the Matrimonial Property Act, 2013 is inconsistent with Article 45(3)

Holding

The Act is consistent with and effectuates Article 45(3); the judge erred in declaring the conflict and displacing the statute.

Reasoning

The Court found that the Act reflects equality before, during and at dissolution of marriage, allowing prenuptial agreements under Section 6(3) and vesting ownership according to contribution under Section 7. A blanket 50:50 formula based on Article 45(3) rendered the statutory distributive scheme of no effect and amounted to a reversible misdirection, especially as the statute was declared unconstitutional without proper basis.

p. 3

Legal principles established

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  • Equality of spouses under Article 45(3) of the Constitution does not translate into an automatic 50:50 redistribution of matrimonial property at dissolution; entitlement must be determined by each spouse's respective contribution under the Matrimonial Property Act, 2013.
  • The Matrimonial Property Act, 2013 is not inconsistent with Article 45(3); rather it effectuates the constitutional principle of equality, with Section 7 vesting ownership according to respective contribution.

Court orders

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  1. 1.Judgment of the High Court dated 3rd May 2017 set aside
  2. 2.The suit remitted to be re-heard at the Family Division by a Judge other than W. Musyoka, J.
  3. 3.Each party shall bear own costs

Authorities

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Legislation

  • Married Women's Property Act 1882 (of England)Section 17
  • Matrimonial Property ActSection 6(3)
  • Matrimonial Property ActSection 7
  • Constitution of KenyaArticle 45(3)

Cases cited (5)

  • MUTHEMBWA V. MUTHEMBWA
    [2002] 1 EA 186
  • PETER MBURU ECHARIA V PRISCILLA NJERI ECHARIA
    [2007] eKLR
  • P N N v Z W N
    [2017] eKLR
  • V W N V F N
    [2014] eKLR
  • M E K v G L M
    [2018] eKLR
On appeal from
High Court of Kenya at Nairobi
HCCC No. 79 of 2013 (O.S)
Jurisdiction invoked
First appellate jurisdiction over the High Court under the law applicable to appeals from the High Court (judgment does not cite a specific provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "EGM v BMM [2020] KECA 188 (KLR)", Case Analysis (2020). Civil Appeal No. 231 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/188/eng@2020-11-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.