Home > Family Law > Divorce & Property
Naomi Mutinda, Adv. March 15, 2025Matrimonial Property

Divorce & Property Division

How "matrimonial property" is shared under Kenyan law

Couple dividing assets

When a marriage ends, one of the most contentious issues is the division of property. Under the Matrimonial Property Act, 2013 and Article 45(3) of the Constitution, each spouse has an equal right to matrimonial property at the dissolution of marriage. However, “equal right” does not always mean a 50/50 split – the court looks at each party's direct and indirect contributions. This guide explains the legal principles applied by Kenyan courts, including the landmark Supreme Court case Echaria v Echaria.

Matrimonial property includes the family home, household goods, and any other property acquired during the marriage (except inheritances and gifts to one spouse).

Direct vs Indirect Contributions

Direct contribution is financial – paying purchase price, mortgage, or construction costs. Indirect contribution includes homemaking, childcare, farming, managing the household, or supporting the other spouse's career. The Supreme Court in Echaria clarified that indirect contributions must be proven by evidence – the court does not presume equality.

  • Married couples: both direct and indirect count.
  • Unmarried cohabiting couples: only direct financial contributions may be recognised (unless a constructive trust exists).

How the Court Apportions Property

The court:

  1. Identifies all assets acquired before marriage (separate property, remains with the owner).
  2. Identifies assets acquired during marriage (matrimonial property).
  3. Assesses each spouse's contribution percentage based on evidence (bank statements, receipts, witness statements).
  4. Orders a division or sale and distribution of proceeds.
Important: A spouse can claim a share even if the title deed is in the other spouse's sole name – registration is not conclusive of ownership under the Matrimonial Property Act.

Protection During Divorce Proceedings

To prevent one spouse from selling or transferring property, you can file a caveat at the land registry or apply for a temporary injunction from the court. The family home cannot be evicted without a court order even if owned solely by one spouse.

"Stay‑at‑home mothers and homemakers are not charity cases – their labour contributes directly to the acquisition and preservation of family wealth. The law must give that recognition." — Naomi Mutinda, Family Law Advocate

Musyoka & Mutinda Advocates represents clients in divorce and property division cases in Machakos and Kenya. We help you gather evidence of contributions and fight for a fair share.