Reconciling Echaria v Echaria with

Article 45 of the Constitution

Joseph Ndirangu Maina

Abstract

Examination of inter-spousal or matrimonial property rights, in Courtrooms or in academia, is usually considered as

falling under two systems: one for the inherent equal entitlement to the property by the spouses, or, proportionate
entitlement as governed by the rules of property law. In emerging legal discourse, it is growing practice to draw a
timeline comparing jurisprudence as applicable before the 2010 Constitutional switch, with the jurisprudence emerging
out of the new Constitution.

Prior to the 2010 Constitution, scanty legislation on matrimonial property rights meant that case law was held with an
overriding appeal to filling this immanent gap in the law. The most recent precedent was set in the case of Peter Mburu
Echaria v Priscilla Njeri Echaria [2007] eKLR, which set the authority on the separate property system of matrimonial
property to govern inter-spousal property matters in Kenya.

The 2010 Constitution, over and above its extensive guarantee of gender equality, specifically provides for the equality
of the parties to a marriage, and for their entitlement to equal rights during the existence of marriage and even at its
dissolution. As alluded to above, this paper is such a comparative analysis: seeking to trace the evolution of
matrimonial property laws, as comprehensively captured in the prior authority in Echaria v Echaria. And ends with
consideration of the emerging jurisprudence as set with the new Constitution.

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Echaria v. Echaria and Article 45 of the Constitution: A Reconciliation Joseph Ndirangu Maina

Introduction

The Court of Appeal‟s decision in Peter Mburu Echaria v. Priscilla Njeri Echaria1 is monumental
in its comprehensive examination of rights of spouses over property that they acquire before, during and on
the breakdown of marriage, termed matrimonial property rights. The case, which was decided on a platform
of scanty, and scattered,2 legislation on the area of matrimonial property, examined in depth the two general
family law regimes in this area of property: communio bonorum and separation bonorum.

In the community property regime, communion bonorum, most property acquired during the
pendency of the marriage is owned jointly by the spouses. Considerations such as who acquired the property
and mutual intention to share the beneficial interests are irrelevant as property is presumed to be owned
jointly, generally in equal shares, between the spouses.3 In separate property regimes, or separation
bonorum, the fact of a marriage by itself has no significance to property relations between spouses and third
parties. Spouses would be treated as any other two related persons in law who order their affairs together,
such as partners in a joint venture.4

Relying on judicial precedent to analyse and interpret the relevant laws at the Court‟s disposal, the
Court of Appeal in Echaria v. Echaria, overturned the High Court‟s decision, and in effect overruled
preceding decisions on the matter, awarding equal shares to the spouses. The Court instead ruled for a
proportionate division of the property between the husband and wife, as evidenced by their contributions in
its purchase, consequently setting the precedent for the separate property regime to apply within the Kenyan
jurisdiction, in matrimonial property rights cases.5

The 2010 Constitution of Kenya, which took effect slightly less than three years after the Court of
Appeal‟s decision, provides under Article 45 for the fundamental protection of the family unit. In what
would seem, at a cursory glance, to be an entrenchment of the community property system, subsection (3) of
Article 45 provides that „parties to a marriage are entitled to equal rights at the time of the marriage, during
the marriage and at the dissolution of the marriage.‟

This paper is an analysis of matrimonial property rights in light of the, arguably, conflicting
positions presented in Echaria v. Echaria and Article 45 of the Constitution of Kenya (2010). To this effect,

1
[2007] eKLR.
2
See Nancy Baraza, ‘Family Law Reforms in Kenya: An Overview’, Presentation at Heinrich Böll Foundation’s Gender
Forum in Nairobi, 30 April 2009, p. 5
3
Charles Kanjama and Katarina Juma, Family Law Digest: Matrimonial Property (LawAfrica 2009) p. 1
4
Ibid at p. 2
5
See Melvin John Blackburn v. Katheen Blackburn [2009] eKLR
2

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Echaria v. Echaria and Article 45 of the Constitution: A Reconciliation Joseph Ndirangu Maina

the paper is divided into two broad parts. The first part is a consideration of the legal environment that set
the ground for the Echaria litigation, with regard to the family law regimes in the area of matrimonial
property rights. And the second part is consideration of the emerging jurisprudence in light of the present
Constitutional protection. It questions whether or not there has been a complete transformation within the
inter-spousal property rights system in Kenya, and whether a conciliatory ground between the two regimes
may be found in the new order.

The Echaria Litigation and the Pre-August 2010 Legal Framework

A. The Legislative Background

It may be considered that, before the enabling provision under the Constitution of Kenya, 2010,6
there has been no single law that addresses the question of inter-spousal property rights before, during, and
upon the dissolution of a marriage. Nevertheless, the law on the subject may have been found scattered in a
number of statutory instruments which include the Matrimonial Causes Act, The Married Women‟s Property
Act, and the Law of Succession Act.7

Under the English common law, similar to most traditional African practices, the wife‟s legal
identity was subsumed into her husband‟s. This, in common law, was referred to as the doctrine of
coverture, and it is best described in the words of William Blackstone:

“By marriage, the husband and the wife are one person in law: that is, the very being or legal existence
of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of
the husband; under whose wing, protection, and cover, she performs everything; and is therefore call in
our law-French a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the
protection and influence of her husband, her baron, or lord; and her condition during her marriage is
called her coverture.”8

The injustice and inequality of this provision, within the context of the „New World,‟9 pushed for the
subsequent enactment of the Married Women‟s Property Act (MWPA) of 1870, and later 1882. The MWPA
was passed with the intention of reducing the legal inequalities between men and women. The Act therefore

6
Article 45 (3)
7
Nancy Baraza, ‘Family Law Reforms in Kenya: An Overview’, p. 5
8
William Blackstone, Commentaries on the Laws of England, Vol. 1 (1765), p. 442
9
See Claudia Zaher, ‘When a Woman’s Marital Status Determined Her Legal Status: A Research Guide on the Common
Law Doctrine of Coverture’ (2002) Vol. 94 Issue 3, Law Library Journal 459, 461
3

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Echaria v. Echaria and Article 45 of the Constitution: A Reconciliation Joseph Ndirangu Maina

enabled a married woman to retain ownership of ante-nuptial property and to keep separate ownership of
property acquired during the married.10

The 1882 Married Women‟s Property Act became, and remains, applicable in Kenya by virtue of
section 3 of the Judicature Act as a statute of general application in force in England on the 12 th August,
1897.11 The incorporation of the MWPA into Kenyan law was first tested in the case of I v I12 which
involved property acquired by the husband in England from his money and registered in the joint names of
the spouses. The property in England was sold and the proceeds used to acquire a house in Kenya, which
was transferred into the husband‟s name. On the question whether the Married Women‟s Property Act of
1882 would apply to Kenya, it was held that “The MWPA was a statute of general application in England on
12 August 1897 and would therefore apply in Kenya so far as the circumstances of Kenya and its inhabitants
permit.”13

In addition to emphasizing the point of law, the case of I v I gave precedence for the application of
the MWPA in the consideration of matrimonial property issues, in priority to customary law,14 and also
applies equally to Muslims as it does to non-Muslims in Kenya.15 And it was on this avenue that the case of
Echaria v. Echaria was filed.

B. The Echaria Litigation

The case of Peter Mburu Echaria v. Priscilla Njeri Echaria,16 which first arose in the High Court
pending divorce proceedings, involved matrimonial property comprising of a hundred and eighteen acres of
a Tigoni Farm. It was filed under section 17 of the Married Women‟s Property Act, which provides in the
relevant part:

“In any question as to between husband and wife as to the title to or possession of property, either party
… may apply by summons or otherwise in a summary way to any judge of the High Court of Justice…
and the judge … may make such order with respect to the property in dispute, and to the costs of and
consequent in the application as he thinks fit…”

10
Kanjama & Juma, Family Law Digest: Matrimonial Property, p. 13
11
The Judicature Act, s 3(1)(c)
12
[1971] EA 278
13
See Kanjama & Juma, Family Law Digest: Matrimonial Property, p. 40
14
Karanja v. Karanja [1976] KLR 307
15
Essa v. Essa Civil Appeal No. 101 of 1995 (Nairobi)
16
[2007] eKLR.
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Echaria v. Echaria and Article 45 of the Constitution: A Reconciliation Joseph Ndirangu Maina

At the High Court, Shields J, following the decision in Kivuitu v Kivuitu,17 ruled that the property be
divided amongst the couple in equal shares. It was to this decision that the appellant moved to the Court of
appeal. A five bench court was constituted which overruled the decision of Kivuitu v Kivuitu, and overturned
the High Court‟s decision in this case, awarding the husband and the wife shares of the property based on
their monetary contribution towards its purchase. The depth of the Court‟s consideration will warrant for a
segmented analysis of the matters considered which may be condensed into the following points:

i. Considerations under community of property

ii. Considerations under separate property
iii. Equitable remedy in Trust
iv. The division of property

i. Considerations under community property

On the initial determination of the case at the High Court, the judge placed a high premium on the
indirect contribution by the respondent to the family fortune, applying the community property system to
dispose the matrimonial property dispute arising. In giving his opinion, the trial judge said in part:

“…the wife (the plaintiff) made substantial indirect contribution or contributions in kind to the family
fortune. One of these contributions was the wife taking the onerous duties of an ambassador‟s wife… In
these circumstances, it appears to me that I must apply the Court of Appeal decision in Kivuitu v.
Kivuitu [1991] 2 KAR 241, that is that I must hold that they are entitled to the property in equal
shares… The farm to be divided equally between the parties”.

Under the community property system, considerations such as who acquired the property and
mutual intention to share the beneficial interest are irrelevant considerations because in such a system,
property is presumed to be owned jointly, generally in equal shares, between the spouses.18 This was the
ratio in Kivuitu v. Kivuitu, which the High Court relied upon. In this case, the matrimonial property in
dispute was bought out of moneys obtained from the salary and business income of the husband. It was then
registered in the joint names of the spouses. After the dissolution of the marriage, the wife filed an
originating summons under section 17 of the Married Women‟s Property Act seeking the orders that the
property, being the matrimonial home of the spouses, be sold and the proceeds be shared equally between
the parties. The trial judge found that the wife had not contributed to the purchase of the property and was
only entitled to one-quarter share of the property and the husband three-quarters. The wife appealed this
decision and the husband cross-appealed seeking a revocation of the High Court‟s award to the wife on the

17
(1991) 2 KAR 241
18
Supra note 3
5

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Echaria v. Echaria and Article 45 of the Constitution: A Reconciliation Joseph Ndirangu Maina

basis of her non-contribution to its purchase. The Court of Appeal however found in favour of the appellant
(wife), that the parties were entitled to the property in equal shares.

The precedent, which was developed in the case, was upon several observations as follows: (as per
Omolo Ag. J.A.)

Where property is [acquired] and [registered] in the joint named of the husband and wife without
specifying any proportions, the courts must take it that such property being a family asset is owned in
equal shares.

Where, however, such property is registered in the name of the husband alone, then the wife would be,
in my view, perfectly entitled to apply to the court under section 17… so that the court can determine
her interest in the property an in that case the court would have to assess the value of the wife‟s non-
monetary contribution. I can find nothing…which would force me to the conclusion that only monetary
contributions must be taken into account.

The Court of Appeal in Echaria v Echaria sought to dispel doubts raised concerning reliance of
Kivuitu‟s case, citing the subsequent case of Essa v Essa,19 by stating that that case dealt with „the narrow
dispute involving the beneficial interest of spouses who are already registered as owners of property as joint
tenants without the registration declaring the beneficial interest of each spouse.‟20 And relying on several
other authorities, the Court of Appeal in effect considered that where there is an express declaration of
beneficial interest, it would be conclusive in determining those, except on the proof of fraud or mistake. On
the other hand, where no such declaration is clear but only the declaration that the property is held by them
as joint tenants, or registered in their joint names – “which presupposes equally”21 – it will be difficult for
one of them subsequently to assert that he is entitled to more than fifty per cent of the sale proceeds.22

ii. Considerations under separate property

The Court of Appeal in Echaria v Echaria relied on the establishing English cases in the
interpretation of the meaning and application of section 17 of the MWPA. Lord Denning in Hine v Hine23
construed the meaning of phrase “as he thinks fit” as granting the court absolute discretion to make such
orders as it thinks fit, and „to make such orders as appears to be fair and just in all the circumstances of the
case. The Court of Appeal, however, elevated the decisions subsequent to Hine v Hine which looked upon

19
Civil Appeal No. 101 of 1995
20
Echaria v Echaria [2007] eKLR
21
Ibid
22 th
Ibid, quoting from S.M. Cretney, Principles of Family Law (4 Ed. 1984)
23
[1962] 1 WLR 1124
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Echaria v. Echaria and Article 45 of the Constitution: A Reconciliation Joseph Ndirangu Maina

section 17 of the MWPA as a procedural provision in contrast to Lord Denning who proposed it to be a
source of law.

In the case of Pettitt v Pettitt24 the wife had purchased a house during the marriage which she
resided in with the husband until the dissolution of their marriage. The husband claimed that he had carried
out a considerable number of improvements to the house and the garden, and by virtue of his efforts the
husband sought a beneficial interest in the proceeds of in the proceeds of sale of the property. The Court
held that the husband was not entitled to an interest in his wife‟s property merely because he had performed
jobs in his line of duties. The Court therefore disregarded idea of a non-financial, indirect contribution. The
Court also recognized that the 1882 Married Women‟s Property Act gave married women full property
rights. It emphasized that the status of marriage did not result in any common ownership or co-ownership of
the property. Moreover, the court stated that disputes over property between husband and wife could be
resolved as an ordinary dispute in property, though the court would make “full allowances in view of that
relationship.”25

In Gissing v Gissing,26 during the course of the marriage, the husband purchased the matrimonial
home and had it conveyed in his sole name. There was no express agreement as to how the beneficial
interest in the house should be shared. The wife however, provided some furniture and equipment. The
Court considered whether the wife was entitled to a beneficial interest in the house. The House of Lords in
reversing a decision of the Court of Appeal – which had allowed a fifty percent/ equal property division to
the wife – held that on the facts it was not possible to draw an inference that there was a common intention
that the wife should have a beneficial interest in the matrimonial house.

The Echaria case, was determined on the platform of these precedents. In overturning the decision
of the High Court, to award equal shares in the property, the court stated that the judge had misdirected
himself in several respects, among which were: taking account of the status of being an ambassadors wife as
indirect contribution towards the acquisition of the property. Citing Burns v Burns,27 the court stated the
nature of the contributions referable to acquisition of a house as follows:

“If there is a substantial contribution by the woman to the family expenses, and the house was
purchased on a mortgage, her contribution is, indirectly referable to the acquisition of the house since in
one way or another, it enables the family to pay the mortgage instalments.

24
[1970] AC 777
25
Ibid as per Lord Upjohn at p. 989
26
[1970] 2 All ER 780
27
[1984] 1 All ER 244
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Echaria v. Echaria and Article 45 of the Constitution: A Reconciliation Joseph Ndirangu Maina

Thus a payment could be said to be referable to the acquisition of the house if, for example, the payer
either:
(a) Pays part of the purchase price, or
(b) Contributes regularly to the mortgage instalments, or
(c) Pays off part of the mortgage, or
(d) Makes a substantial financial contribution to the family expenses so as to enable the mortgage
instalments to be paid”...
„That list is not exhaustive.‟28

The Court of Appeal also pointed out the trial judge misapprehended the decision of Kivuitu v
Kivuitu and erroneously applied it, as the property in dispute was not registered in the joint names of the
appellant and the respondent.

iii. Availability of an equitable remedy in the Law of Trust

The doctrines of equity developed to mitigate the stringent effects in the application of the rigid
rules of common law. Consequently, to pacify the decision under separate property regime, which is
considered to severely disadvantage the losing party, often women,29 courts resort to curve out entitlement to
parties based on the doctrine of Trust (resulting, implied or constructive trusts).

In Gissing v. Gissing30 the House of Lords made it clear that where both spouses contribute towards
the purchase of a matrimonial home, but the house is registered in the name of one spouse alone, the
question whether the contributing spouse is entitled to a beneficial interest in the matrimonial home is a
matter dependent on the law of trust.31 As per Lord Diplock in that case: “The legal principles applicable to
the claim are those of the English law of trusts and in particular, in the kind of dispute between spouses that
comes before the courts the law relating to the creation and operation of ‘resulting, implied or constructive
trusts’...”

And in Pettitt v Pettitt32 upon illustrating that the beneficial ownership of the property in question
must depend upon the agreement of parties at the time of acquisition, stated:

28
Ibid
29
The International Women’s Human Rights Clinic, ‘Women’s Land and Property Rights in Kenya – Moving Forward
into a New Era of Equality: A Human Rights Report and Proposed Legislation’, Georgetown Journal of International
Law, Vol. 40 (2009)
30
[1970] 2 All ER 780
31
Echaria v Echaria [2007] eKLR, p 13
32
[1969] 2 WLR 966
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Echaria v. Echaria and Article 45 of the Constitution: A Reconciliation Joseph Ndirangu Maina

But where both spouses contributed to the acquisition of property, then my view (of course in the
absence of evidence) is that they intended to be joint beneficial owners, that is so whether the purchase
be in the joint names or in the name of one. This is a result of an application of a resulting trust.

iv. The division of property

The Court of Appeal in the Echaria Case clarified its previous decisions in often awarding an equal
33
share. The Court stated that this was not as a result of the application of any general principle of equality of
division. Rather, in each case, the court appreciated that for the wife to be entitled to a share of the property
registered in the name of the husband, she had to prove acquisition of the property.34

The court in Echaria v Echaria however was quick to echo the lamentation in several decisions over
the lack of legislative or policy enactment over this matter of considerable importance, concerning the
meditative disposal of inter-spousal property claims.35 The court considered that short of a legislative
enactment, it would be a stretch of its powers to alter the property rights of individuals solely on the Court‟s
interpretive function.

In Burns v Burns,36 where a woman who had lived with a man as husband and wife for seventeen
years and begot two children claimed beneficial interest in the house bought by the man by reason of her
contributions to the household over the seventeen years they had lived together. Fox L.J. when discussing
whether performing domestic duties in the house and looking after the children should be taken into account
said:37

“The court has no jurisdiction to make such orders as it might think fair... The house was bought by the
defendant in his own name and, prima facie, he is the absolute beneficial owner. If the plaintiff or
anybody else claims to take it from him, it must be proved that the claimant has, by some process of the
law, acquired interest in the house. [A] Common intention [to create a trust] may be inferred where
there has been a financial contribution, direct or indirect to the acquisition of the house. But the mere
fact that parties live together and do the ordinary domestic tasks is, in my view, no indication at all that
they thereby intended to alter the existing property rights for either of them.”

33
See Essa v Essa; Nderitu v Nderitu, Civil Appeal No. 203 of 1997; Kamore v Kamore; Muthembwa v Muthembwa,
Civil Appeal No. 74 of 2001 and Mereka v Mereka, Civil Appeal No. 236 of 2001
34
Echaria v Echaria [2007] eKLR, p 20
35
Echaria v Echaria [2007] eKLR, p 26, 27
36
[1984] 1 All ER 244
37
See Echaria v Echaria
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Echaria v. Echaria and Article 45 of the Constitution: A Reconciliation Joseph Ndirangu Maina

The Court of Appeal in Echaria, adopting this position criticized the respective Court‟s decisions in
Kivuitu v. Kivuitu and Nderitu v Nderitu, as moving ahead of parliament when they said that the wife‟s non-
monetary contributions have to be taken into account and value put to them.

In conclusion, the Court of Appeal awarded the wife a share of the property (25%) based on the
most likely presumption of her financial contribution.

Does the 2010 Constitution Create a New Order?

As discussed above, the Echaria case proceeded over a background of scanty and scattered
legislation on the area of matrimonial property to the extent of the Court criticizing the country‟s Law
Reform agenda as keeping “the country shackled to a 125 year-old legislation which the mother country
found wanting more than 30 years ago!”

Incorporation of International Law into the Family Law System

Article 2 of the 2010 Constitution of Kenya incorporates international law into the sources of law in
38
Kenya. Consequently, provisions relating to family law within the realm of international law could, by
virtue of this Article, be invoked to fill in the purported gap in the domain of matrimonial property rights in
Kenya. And the Courts have not been hesitant in applying these considerations.

In harmony with the clarified position of international law as source of law in Kenya, courts have
more openly dipped into this source for guidance on matters of inter-spousal property rights. In J.A.O. v
N.A.39 the Court, turning its eyes to international law, while reiterating the provisions of articles 2(5) and 2
(6), invoked some of the guiding instruments on matrimonial property as follows:

Article 6(1) (h) of the International Convention on the Elimination of All Forms of Discrimination
against Women enjoins state parties:“To ensure on the basis of equality the same rights for both
spouses in respect of ownership, acquisition, management, administration, enjoyment and disposing of
property whether free of charge or for valuable consideration”;

Article 16(1) of the Universal Declaration of Human Rights provides as follows: “Married women of
full age without limitation due to race, nationality or religion have the right to marry and found a
family. They are entitled to equal rights as to marriage, during marriage and at its dissolution”;

38
See Article 2(5) as read with Article 2(6) of the Constitution of Kenya, 2010
39
Infra note 46
10

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Echaria v. Echaria and Article 45 of the Constitution: A Reconciliation Joseph Ndirangu Maina

Article 7(d) of the Protocol to the African Charter on Human and People's Rights on the Rights of
Women in Africa provides as follows: “In cases of separation, divorce or annulment of marriage,
women and men shall have the right to an equitable sharing of the property deriving from the
marriage”

The court in J.A.O. applied these rules of international law, as well as the relevant provisions in the
Constitution in holding for an equal entitlement in the distribution of the matrimonial property in dispute.

It is therefore established40 that International law, as incorporated into the laws of Kenya, and virtue
of ratification of treaties, will by dint of the new Constitution apply to bridge whatever gaps in the law
governing matrimonial property in Kenya.

The Constitutional Guarantee & Protection of Family Rights

The 2010 Constitution of Kenya extends its protection of rights and freedoms (specifically) to the
family, as “the natural and fundamental unit of society.”41 Under this protection, the Constitution provides
and protects the right of consenting adults to marry (a person of the opposite sex).42

Article 45 (3) of the Constitution provides that parties to a marriage are entitled to equal rights at the
time of the marriage, during the marriage and at the dissolution of the marriage. This provision is broadly
considered to entrench gender equality rights, even within the institution of marriage. By extension, it is
considered to solve the disparities presented by separate property regimes especially as regards the strict
application of the consideration in Echaria that locks out non-financial contribution as laid out in the cited
case of Burns v Burns, that domestic duties including the taking care of children should not be considered as
warranting equal distribution of property.

The Echaria case itself is also a good example to consider against the remedial role considered in
Article 45 (3). In this case the wife, while the husband performed diplomatic duties, was unable to work but
instead took on the role of a house wife. The court held that, this cannot be a ground for equal division of
property. This has been considered as a ground for discrimination or inequality in ownership of matrimonial
property.43 Caselaw coming for consideration under this Article seems to be in concurrence with the view
that the principles set out in Echaria v Echaria are overturned.

40
See C.M.N v A.W.M. [2013] eKLR
41
The Constitution of Kenya, Article 45 (1)
42
Article 45 (2)
43 th th th
See FIDA Kenya’s Statement to the CEDAW Committee on the 5 and 6 Country Report by Kenya during the 39
rd th
CEDAW Session, 23 July – 10 August 2007
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Echaria v. Echaria and Article 45 of the Constitution: A Reconciliation Joseph Ndirangu Maina

It is also important to note that whatever position considered by the Constitution becomes binding
and overrides any contrary provision that may be in existence. This is by virtue of the doctrine of supremacy
as provided in Article 2 of the Constitution. In Z.W.N. v. P.N.N,44 the court observer that:

“This court notes and appreciates that the principle of law set by the Court in Echaria v. Echaria stems
from provisions of the legislation subordinate to constitutional provisions, meaning that the
constitutional provisions enshrining the principle of equality when it comes to distribution of
matrimonial property have primacy over the principle of law enunciated by the decision in Echaria v.
Echaria which stems from and ordinary legislation.”

In this case where the husband and wife separated on the ground that the husband had left the
matrimonial home to live with a mistress, the wife claimed for an equal (half) share of the matrimonial
property. The case which started in the year 2004 came to conclusion in 2012. The court noted that the
vacuum in the area of matrimonial property rights had now been filled stating that: “this court is however
alive to the fact that as the time of drafting this judgement there are operative constitutional provisions on
matrimonial property contained in the current constitution 2010. The Court cited Rono v Rono and
Another45, which dealt with international rights and issues and drew from international law applicable to
Kenya as a member of the international community. The court upheld the need to accord equal treatment to
women following the principles of international law, as incorporated into law under Article 2 (5), and
considering also the provision of Article 45 (3), and considered this position as presented in the Constitution
supreme over the precedent and the relevant laws considered in Echaria v Echaria.

In J.A.O. v N.A.46 the plaintiff and the defendant who had been married under the African Christian
Marriage and Divorce Act, filed for and upon hearing were granted orders for judicial separation. The
plaintiff in this case, through an originating summons under section 17 of the MWPA, sought among other
orders that a declaration be issued that properties which were listed in the originating summons and were in
the name of the Defendant, and which were acquired during the subsistence of the marriage are owned
equally and that the same should be sold and the proceeds shared equally or as the Court may deem fit. The
court took the position that:

“When it comes to distribution of matrimonial property, there are a number of decisions which have laid
down principles which are used to determine contribution of a spouse towards matrimonial property. It
has been held that a spouse's contribution need not only be financial. It can even be in form of giving

44
.[2012] eKLR
45
(2008) 1 KLR (G&F) 803
46
[2013] eKLR
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Echaria v. Echaria and Article 45 of the Constitution: A Reconciliation Joseph Ndirangu Maina

the other peaceful time as he acquires the property e.g. by taking care of the children of the marriage,
taking care of the home or even improvement of the property.”

In addition, the Court in commenting on the decision in Echaria v. Echaria stated that:

“There is no doubt that the way to go is towards the principle that matrimonial property should be
shared on 50:50 basis. This will be in furtherance of the principles of the Kenyan Constitution and the
International treaties and conventions which have been ratified in Kenya. We do not have to wait until
the matrimonial property bill is enacted into law to start applying what is contained therein. The
constitution, international conventions and treaties which have been ratified by Kenya have shown the
way.”

And the court in this case stated that the plaintiff had demonstrated that she had contributed towards
the acquisition of properties, which contribution did not have to be financial. On this consideration the court
held that the plaintiff was entitled to half share in all the properties which were found to be matrimonial
property.

Conclusion

Article 45 of the Constitution of Kenya effectively overhauls the position in Echaria v Echaria, and
creates a de jure regime of communio bonorum. The courts, however, seem to go into great detail in
determining which property falls into the category of matrimonial property for the purposes of equal
distribution. A clear definition of what constitutes such property, or for a criteria (that is standard) for
determining such property is needed. This in turn calls for the implementation of Article 45 (4) which
effectively provides that Parliament enact laws to further protect the institution of marriage, in extension to
the provisions in the Constitution.

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Electronic copy available at: https://ssrn.com/abstract=2516683

Echaria v. Echaria and Article 45 of the Constitution: A Reconciliation Joseph Ndirangu Maina

Bibliography

Baraza, N., 2009. Family Law Reforms in Kenya: An Overview. Nairobi, s.n.

Kanjama, C. & Juma, K., 2009. Family Law Digest: Matrimonial Property. Nairobi: LawAfrica
Publishing (K) Ltd.

The International Women's Human Rights Clinic, 2009. Women‟s Land and Property Rights in Kenya –
Moving Forward into a New Era of Equality: A Human Rights Report and Proposed Legislation.
Georgetown Journal of International Law, Volume XL.

Zaher, C., 2002. When a Woman's Marital Status Determined Her Legal Status: A Research Guide on
the Common Law Doctrine of Coverture. Law Library Journal, XCIV(3), pp. 459-486.

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Electronic copy available at: https://ssrn.com/abstract=2516683