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Court of AppealPartially AllowedCivil Appeal 87 of 2017· [2022] KECA 777 (KLR)

PGM v AWM

Court of Appeal
10 June 2022
4,604 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that divorcing spouses share property based on proven contribution, not an automatic 50:50 split.

What this practically means

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Executive summary

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This appeal arose from a matrimonial property dispute between former spouses married in 1980 under Kikuyu customary law and later solemnized under the African Christian Marriage and Divorce Act. After their divorce was finalized, the respondent sought severance of title over two properties - a Langata house registered in joint names and a Kitengela plot registered in the appellant's name. The trial court declared both properties jointly owned and ordered equal (50:50) sharing upon valuation, leaving the company shareholding to a commercial forum, with each party bearing their own costs. The appellant appealed on 19 grounds condensed into six, arguing inter alia that the trial court lacked jurisdiction, applied the wrong law, and that he solely paid for the properties. The Court of Appeal framed four issues: jurisdiction, applicable law, evaluation of evidence, and apportionment. It declined to determine the jurisdictional challenge because it was raised for the first time in written submissions and was never pleaded, holding that submissions are no replacement for pleadings. On the applicable law, it held the marriage was still subsisting when the Constitution 2010 was promulgated (the decree absolute issuing only in January 2011), so the trial court did not err in resorting to the Constitution and the Married Women Property Act 1882; the Matrimonial Property Act 2013 did not apply. The court endorsed the Echaria line of authority that under Section 17 MWPA there is no general principle of equal division and a spouse must prove contribution, and agreed with EGM vs BMM that Article 45(3) equality does not involve re-distribution of property rights. Finding the 50:50 split unwarranted, the court partially allowed the appeal, setting aside the equal-sharing order and substituting a 60/40 division of the Langata property in favour of the appellant and equal sharing of the Kitengela property, with each party bearing their own costs of the appeal.

Key legal issues

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01

Whether the trial court had jurisdiction to entertain the dispute

Holding

The jurisdictional issue was not determined because it was raised for the first time in the appellant's written submissions and was never pleaded or canvassed at trial

Reasoning

The court agreed with the respondent that parties are bound by their pleadings and that raising the issue only in submissions denied her the opportunity to respond. It held it would be unfair and unjust to determine an unpleaded issue on appeal, since submissions are no replacement for pleadings.

p. 5
02

The applicable law to the dispute

Holding

The trial court correctly applied the Constitution 2010 and the Married Women Property Act 1882; the Matrimonial Property Act 2013 did not apply

Reasoning

The decree absolute was issued on 14th January 2011, long after the promulgation of the Constitution, so the marriage was still subsisting when the Constitution came into force. The trial court was therefore not applying the Constitution retrospectively, and it was emphatic that the MWPA was the applicable law.

p. 6
03

Whether the trial court properly evaluated the evidence

Holding

The trial court properly evaluated the evidence tendered by the parties

Reasoning

The trial court considered the marriage, the acquisition of the properties during its subsistence, the mortgage obtained and repaid by the appellant from his salary, the joint registration of the Langata title, the respondent's improvements and household expenses, and her employment and salary from the company.

p. 7
04

Whether the trial court rightly apportioned the suit properties

Holding

The 50:50 apportionment was disturbed: the Langata property is shared 60/40 in favour of the appellant and the Kitengela property 50/50

Reasoning

Although the Langata property was registered in joint names, there was no equal contribution as the appellant solely repaid the mortgage; the respondent nonetheless made non-monetary contribution. The Kitengela property was purchased from company funds belonging to both parties and was available for equal sharing.

p. 7

Legal principles established

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  • A party is bound by their pleadings; submissions are no replacement for pleadings, and an issue not pleaded or canvassed at trial cannot be determined on appeal
  • A court of law must be moved under the correct provision of the law
  • Until a decree absolute is issued, the marriage is deemed to be still subsisting; the Constitution may apply to a dispute where the marriage subsisted at promulgation without retrospective application
  • Under Section 17 of the MWPA there is no general principle of equal division; a spouse claiming a share of property registered in the other's name must prove contribution, assessed on the peculiar circumstances of each case
  • Equality of spouses under Article 45(3) does not involve re-distribution of property rights at dissolution of marriage; equality in marriage is not applied blindly but takes into account each party's contribution
  • The role of a first appellate court is to subject the whole of the evidence to fresh and exhaustive scrutiny and reach its own conclusions, bearing in mind it did not see or hear the witnesses first hand

Court orders

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  1. 1.Set aside that part of the judgment of the High Court ordering that the suit properties be shared on the basis of 50:50
  2. 2.Substituted an order that the respondent is entitled to 40% of the Langata property
  3. 3.The Kitengela property shall be shared equally (50/50)
  4. 4.Any party may proceed to pay to the other the monetary value of the said share upon valuation of the suit properties
  5. 5.Each party to bear their own costs of the appeal
On appeal from
High Court of Kenya at Nairobi
Civil Case No. 71 of 2011 (Formerly ELC No. 204 of 2011)
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act; appeal from High Court in a matrimonial property dispute under Section 17 of the Married Women Property Act 1882 and Article 45(3) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "PGM v AWM", Case Analysis (2022). Civil Appeal 87 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/777/eng@2022-06-10

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