Kenya’s Supreme Court has reaffirmed that marriage does not automatically entitle spouses to an equal share of property upon separation — a principle first laid down in a landmark 2023 decision that continues to shape family law today. The Court’s reaffirmation, delivered by a five-judge bench led by Deputy Chief Justice Philomena Mwilu, means that spouses must still prove their contribution — financial or otherwise — before claiming a share of matrimonial property.
The position traces back to the case Joseph Ombogi Ogentoto v Martha Bosibori Ogentoto (Petition No. 11 of 2020), in which a husband challenged a Court of Appeal order that had granted his estranged wife an equal (50:50) share of their home and rental units. The dispute began in 2010 and wound its way through the High Court and Court of Appeal before reaching the Supreme Court, which rendered its final judgment on January 27, 2023. That ruling now serves as the touchstone for all matrimonial property disputes in Kenya.
In her opinion, DCJ Mwilu stated that Article 45(3) of the Constitution — which guarantees equal rights in marriage — does not translate into equal ownership of property. “Equality at dissolution means equitable sharing based on proven contribution, not an automatic mathematical half,” she wrote.
The Court explained that contribution — whether monetary (such as direct payments, loans, or investments) or non-monetary (childcare, domestic work, emotional and managerial support) — remains the key test for division. This interpretation aligns with the Matrimonial Property Act, 2013, which defines what counts as matrimonial property and sets out the rules for ownership and division. The Act recognises both monetary and non-monetary contributions, but it requires proof that such input helped in acquiring, improving, or maintaining the property.
The justices cautioned that a spouse who cannot demonstrate contribution risks walking away with little or nothing, even after years of marriage. However, they also recognised that unpaid domestic labour and care work, often performed by women, are valid forms of contribution deserving legal weight.
Legal experts say the reaffirmation underscores fairness but highlights the practical difficulty of proving non-financial work. “This decision is a reminder that love is not an investment — evidence is,” said Nairobi-based family lawyer Angela Mutua. “It protects property owners from automatic loss but could disadvantage spouses, usually women, who never kept records of their contributions.”
Women’s rights groups, including FIDA-Kenya, have called for clearer legislative guidelines. In a statement following the reaffirmation, FIDA urged Parliament to amend the Matrimonial Property Act to make non-monetary contributions easier to quantify. “Homemakers are partners in every sense. Their invisible labour must not be treated as valueless simply because it cannot be banked,” the group said.
For ordinary Kenyans, the message remains clear: marriage does not equal joint ownership. Couples are now encouraged to keep financial records, maintain evidence of shared responsibilities, or even draft pre- or post-nuptial agreements to safeguard fairness.
As the dust settles, the Supreme Court’s message cuts across boardrooms and kitchens alike — equality in marriage is about justice, not arithmetic. And in today’s Kenya, that means every spouse must show, not just say, how they built their life together.
