There are two main ways that courts have used
1. Married Women’s Property Act;
2. Presuming certain equitable interests in the matrimonial property
Section 17 of the MWPA this section provides that in any question between husband and wife as to the title to or possession of property either party may apply for an order to the court and the Judge may make such order with respect to the property in dispute as he thinks fit. It was at one time thought that the power given to a judge in this section to make such orders as he thinks fit provided statutory justification for doing what was thought to be just between the parties without having regard to the technicalities of property law.
However this changed in 1965 before 1965 courts would rely on section 17 to vary property rights in matrimonial property but after 1965 in the National Provincial Bank v. Ainsworth the House of Lords was of the opinion that Section 17 only provides a method or a summary procedure for determining proprietary rights between spouses but the courts cannot vary those rights using Section 17, courts cannot confer rights which were previously not there. In this case the husband had deserted the wife and it was conceded that she had a right to be provided with housing by her husband under what was known as the deserted wife’s equity. It was also conceded that she could have obtained an injunction from the court to stop the husband from interfering with her rights to housing. However, the husband had mortgaged the house without her knowledge and he subsequently became insolvent. The House of Lords held that her right to housing was not a proprietary right within the meaning of section 17 and therefore was incapable of binding the bank to whom the house had been mortgaged. In other words the wife was relying on section 17 to fight the bank interst in the house but it was held that her rights could not qualify.
This was followed in later cases
Gissing v. Gissing
Pettit v Pettit
Falconer v. Falconer
Heseltine v. Heseltine
IN Pettit v Pettit the wife purchased the matrimonial home and it was regisgtered in her name alone. During the cause of the marriage the husband during his free time undertook to decorate the home and due to this decorations the value of the house increased. On the marriage breakdown the husband claimed an interest in that property under Section 17 of the MWPA. The court held that despite the fact that he had decorated the house which led to an increase in its value this did not confer upon him a beneficial interest in that house and this is because it had no jurisdiction to vary the title of the House under Section 17.
Lord Reid stated as follows the meaning of he Section (17) cannot have altered since it was passed in 1882. at that time the uncertainty and security of rights in property were generally regarded as of paramount importance and I find it incredible that any parliament of that era could have intended to put a spouse’s property at the hazard of he unfettered discretion of a Judge if the other spouse raised a dispute about it.
In other words he was stating the position that courts could not vary property rights under Section 17.
As a result of this the law in England was changed in 1970 under the Proceedings under the Matrimonial Property and Proceedings Act of 1970 under Section 37 it is provided that where a husband or wife contributes in money or money’s worth to the improvement of real or personal property in which either or both of them have a beneficial interest the husband or wife so contributing shall if the contribution is of a substantial nature be treated as having then acquired by virtue of his/her contribution a share or an enlarged share as the case may be in that beneficial interest. The important thing is that this section recognises indirect contributions to the property.
Kenya still relies on section 17 of the MWPA and it as upheld in the decision of National Provincial that it does not confer jurisdiction on the court to vary title but only to determine rights in matrimonial property.
Kenyan courts in response to the inequity caused by this approach is that they have been able to interpret section 17 to enable them control the way that property is used without departing from the principle that they cannot alter title. They have been able to give orders as to the way the property is to be used without necessarily altering title. In most cases they have ordered that the property be sold and directed on how the proceeds of the sales are to be divided. The court’s position has evolved over time in Kenya in response to the changing social and economic realities.
Section 17 was first substantively disccused in Karanja v. Karanja. In this case the wife brought an action under section 17 and she alleged that she had made financial contributions towards the purchasing of the matrimonial property. Her husband on the other hand maintained that even if that was the case under Kikuyu Customary law a woman was not permitted to own property and therefore his wife’s claim could not stand. The couple had married under the African Christian Marriage and Divorce Act and throughout the cause of the marriage the wife made substantial contributions to the running of the household. She also assisted her husband in paying school fees for the children and at one time when the husband was away for 5 years studying abroad she was the one who was running the home. In support of her claim of financial contribution she brought evidence to show that every month her salary went to her husband’s account who would then withdraw money for his personal use. The property in dispute was a farm in Karen where the matrimonial home was also situated and the wife claimed that she was a joint owner of this property. The husband met another woman chased away his wife who was forced to live in the servants quarter. Although the couple had other properties the wife claimed that she was entitled to remain in Karen since she is the one who had developed it.
The court then undertook to determine the amount of financial contribution that had been made by the wife towards accumulation of the entire matrimonial property and found that her contribution amounted to one third of the entire value of the matrimonial property. The matrimonial property was valued at 900,000 shillings and she was awarded 300,000 shillings because of her one third financial contribution.
The husband was advised to sell one of his other properties and give the proceeds to the wife. The court was not varying any existing title and only determined what her contribution was and then give her that contribution.
Kivuitu v. Kivuitu
The marriage in this case was a statutory marriage and the husband and wife both made financial and indirect contributions to the acquisition of the matrimonial home which was registered in their joint names. On the institution of divorce proceedings the wife applied that the matrimonial home be sold and the proceeds be shared out equally. The court held that on the basis of the wife’s contribution, the parties were entitled to the property in equal shares and ordered that the property be independently valued and the husband pays to the wife as sum equal to half of that valuation.
The court is not varying any title but determining the interests of spouses in the property.
In these two cases, two issues were not addressed
Did section 17 of MWPA apply to marriages under other systems of family law? Did it apply to marriages under Islamic or Customary Law?
It did not address the question whether indirect contributions alone can suffice for orders under Section 17. These issues have been addressed in two recent cases
Fatia Essa v. Mohamed Alibhai
Tabitha Wangeci Nderitu v. Nderitu
Fatia Essa was a Muslim marriage, the wife went to court asking for an equal share in the matrimonial property to which she had contributed. She proved her financial contribution and the court awarded her 50% of that property. This is the authority for the position that Section 17 applies to Islamic Marriage.
In Tabitha, this was a customary law marriage and the wife’s contribution was indirect, and she was awarded 50% of the Matrimonial Property.
They stand by actual valuation of ones contribution so that ones interest is proportional to the contributions that one has made. There is a presumption of equality of shares when a contribution is as such. In Nderitu it was an appeal where the court of appeal held that she was entitled to an equal share. We are at the stage where spouses are now entitled to an equal share of the property.
Muthembwa v. Muthembwa Civil Appeal No. 74 of 2001
In this case it was held that a spouse who has contributed to the increase in value to property that is inherited by or gifted to the other spouse before the marriage will be entitled to a share of the increased value under Section 17 of the MWPA. The wife claimed that one of the properties she was claiming was a property that the man had inherited from the father before they got married. Wife claimed she had increased the value of that land by improving it and it was held that she was entitled to 50% of the value of the improvement of that property.