Land as Matrimonial Property in Kenya: Demystifying the Concept of Contribution to Acquisition of Land as Matrimonial Property

Mitchelle Oyuga & Nancy Ikinu

In Kenya, equality in marriage is underscored in law by the Constitution which stipulates that parties to a marriage are entitled to equal rights at the time of marriage, during marriage and at the dissolution of marriage. This paper undertakes an appraisal of the laws that govern women land and property rights in Kenya. It assesses the Matrimonial Property Act, Act No.49 of 2013 which provides for rights and responsibilities of spouses in relation to matrimonial property. Specific focus is paid to section 7 which provides that ownership of matrimonial property vests in the spouses according to contribution of each spouse towards its acquisition. This provision shifts the burden of proof to the spouse having interest in matrimonial property to prove ?contribution? to the acquisition or development of the said matrimonial property. This paper also assesses changes to the land laws through the Land Laws (Amendment) Act.2015 and highlights the provisions that will impede the enjoyment of women land and property rights in Kenya. It espouses that these highlighted sections of the Matrimonial Property Act, 2013 are unconstitutional and should be amended to accommodate equality in marriage as stipulated in Article 45 of the Constitution. It further provides that the concept of spousal consent to the disposal of land should be anchored in law to safeguard women land and property rights in Kenya.

Document type:Land as Matrimonial Property in Kenya: Demystifying the Concept of Contribution to Acquisition of Land as Matrimonial Property (418 kB - pdf)