Introduction

In many Kenyan divorces or separations, the biggest legal dispute often centres on who owns what. From family homes to shares in companies, to land inherited from parents, spouses often ask: What property is considered matrimonial? Can I claim my spouse’s inheritance? What if the property is owned by a company they control? This article by FM Muteti & Co. Advocates addresses these common Matrimonial Property in Kenya questions using Kenya’s statutory law and court decisions to guide separating or divorcing spouses.

What Is Matrimonial Property in Kenya?

The Matrimonial Property Act, 2013 (No. 49 of 2013) defines and regulates matrimonial property in Kenya. According to Section 6(1) of the Act, matrimonial property includes:

  • The matrimonial home or homes;
  • Household goods and effects within that home; and
  • Any other movable or immovable property acquired jointly by the spouses during the marriage.

The law focuses on property acquired during the subsistence of the marriage and intended for the joint benefit of the spouses. This includes land, vehicles, business premises, or other investments jointly owned.

Crucially, ownership is determined by contribution. Under Section 7, the law provides that matrimonial property shall be divided according to the contribution of each spouse. The Act recognises both monetary and non-monetary contributions. These are defined under Section 2 to include domestic work, childcare, companionship, and management of family property or business.

There is no automatic 50/50 split. Instead, each party must prove their respective input into the acquisition or development of the property.

Are Gifts and Inheritance Considered Matrimonial Property?

The Act does not expressly exclude gifts and inheritance from matrimonial property. However, Section 15 of the Matrimonial Property Act deals with gifts between spouses and provides that:

“Where a spouse gives any property to the other spouse as a gift during the subsistence of the marriage, there shall be a rebuttable presumption that the property thereafter belongs absolutely to the recipient.”

This means that gifts between spouses are presumed to be personal property unless there is evidence that they were intended for joint use.

As for gifts or inheritances from third parties, although not expressly addressed, Kenyan courts have developed clear jurisprudence:

  • Where a gift or inheritance is given personally to one spouse and not intended for joint use, it is generally treated as separate property.
  • However, where the gift or inherited asset is improved using joint resources, or used as a matrimonial home, it may be deemed to have become matrimonial property.

Key Case: JOO v MMO [2021] eKLR

The High Court held that land inherited by the husband from his late father did not constitute matrimonial property because the wife did not contribute to its improvement, nor was it used as a family asset. The court reaffirmed that inheritance and gifts become matrimonial property only upon proof of intention to share or actual contribution.

How Do Kenyan Courts Divide Matrimonial Property?

Division of matrimonial property is governed by Section 7, which requires courts to divide property based on proven contribution. The Supreme Court of Kenya clarified this principle in:

Ogentoto v Ogentoto (Supreme Court, 2023)

In this case, the court held that Article 45(3) of the Constitution—which provides for equal rights in marriage—does not mean an equal 50/50 division upon divorce. The correct interpretation is that equality refers to the opportunity to contribute, not automatic equal entitlement. A spouse must prove their financial or non-financial contribution to be entitled to a share.

Echaria v Echaria [2007] eKLR

The Court of Appeal ruled that proof of contribution is mandatory—marriage alone does not entitle a spouse to half of the property. Indirect contributions such as homemaking and child-rearing are valid, but they must be demonstrated.

Is Property Owned by a Company Matrimonial Property?

One of the most frequently disputed questions is whether property registered under a company owned by a spouse qualifies as matrimonial property.

The Matrimonial Property Act does not directly address corporate ownership. However, courts have dealt with such cases using principles of beneficial ownership and trust law.

Prest v Petrodel Resources Ltd [2013] UKSC 34

The UK Supreme Court held that where a spouse uses a company to hold property for personal benefit, courts can pierce the corporate veil and treat that property as matrimonial. The key test is whether the company is a facade used to defeat a spouse’s legal rights.

MNK v MRM [2017] eKLR

In Kenya, the High Court held that if a company is the “alter ego” of a spouse, and the property is used as a matrimonial home or purchased using marital funds, it may be subject to division under matrimonial property laws.

However, where a company is a legitimate legal entity with proper structure and operations, its property may not be available for division unless the other spouse can show beneficial interest or contribution.

Conclusion

The Matrimonial Property Act of Kenya sets out a clear legal framework for determining what constitutes matrimonial property. It includes jointly owned homes, investments, land, and other property acquired during marriage, and apportions it based on contribution.

Gifts and inheritance do not automatically qualify as matrimonial property—unless they were shared or improved by both spouses. Meanwhile, property held under a company owned by one spouse may be included in matrimonial property only if the court is satisfied that the company is a front for personal ownership or was funded or supported by the other spouse.

For any spouse going through a separation or divorce, it is crucial to gather evidence of contribution, understand the legal status of inherited property and gifts, and take early legal advice—especially where company-owned or hidden assets may be involved.

Facing a Property Dispute or Divorce?

If you are facing a divorce, marital property dispute, or have concerns about how your property will be divided, our experienced family lawyers in Kenya at F.M. Muteti & Co. Advocates are ready to assist. We advise both local and diaspora clients on:

  • Matrimonial property division
  • Claims involving company-owned assets
  • Inheritance and succession planning
  • High-value divorce settlements
  • Property rights under customary and statutory law

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📞 Call us: +254 790 008 888
📧 Email: mombasa@fmlawadvocates.co.ke
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