Who Owns Matrimonial Property in Kenya?

By Ogova Ondego
Published 2002

As soon as our meeting ends, Dr Karago picks her handbag and folder and dashes out. She says she wants to board a Kayole-bound matatu.

I loudly wonder why she has to use a matatu public service vehicle while their family pick-up is parked outside the campus.

“The vehicle belongs to its owner,” she says, hastily clarifying that ‘the owner’ is her husband.

I am surprised because this couple has been married for close to three decades. Why, pray, would they own property separately?

The issue of property in marriage is contentious. In Africa, wives have often been treated as part of the husband’s property. But Christianity seems to have made an already bad situation worse.

In a Christian marriage, the existence of a woman is incorporated into that of the husband. They are no longer two but ‘one flesh’. Unfortunately, this single flesh is usually the husband, not the wife! As such, all property– including that jointly acquired or even that acquired by the wife alone–is registered in the name of the husband.

According to experts, the type of marriage entered into determines the kind of property rights a woman will have.

In English law (Married Women Property Act), which governs Civil and Christian marriages, allows a wife to acquire, hold and dispose of any property. But African customs and traditions usually do not allow women to own property such as land. This view is very strong in Kenya today despite the overwhelming Christian and Western influence in the country.

Prof ABC Ocholla-Ayayo, an anthropologist, argues that in most parts of Africa, property is communally-owned (read patriarchal) and that property ownership by women is forbidden. He says that he did a survey in Kisumu in the 1980s which revealed that only one man had given land to his daughter. Even then, stresses Prof Ocholla-Ayayo, this man had had to buy this land as the community could not allow him to give a woman–a foreigner–their ancestral land. This is how strong culture is against property ownership by women. Indeed lawyer Mumbi Ngugi argues that African ‘customs and social norms often seem to override legislation.’ And Prof Ocholla-Ayayo adds, “Unless lawmakers base their decisions on cultural practices, they cannot go far.”

With its diversity of peoples, values, and perceptions, can a uniform law on matrimonial property be fair to everyone? Kenya’s Law of Succession appears to follow Prof Ocholla-Ayayo’s advice. If a husband dies without having written a will, the widow is entitled ONLY to his personal and household effects–NOT ESTATE–for the rest of her life until she remarries.

Among most Kenyan ethnic groups–Luyia, Luo, Kalenjin, Maasai– tradition stipulates that men own property while women have user rights to the same. To reverse this mentality is likely to take time. To adequately address the issue of matrimonial property, experts are grappling with the definition of “matrimonial property”. For example, they are asking: Should it include every asset owned by each partner? Should it include property acquired during marriage but exclude that acquired before? Should the contribution to the acquisition of the property be a factor in co-ownership? What form should contribution take and how do you evaluate the contribution of the wage earner against that of a housewife (not known as a homemaker)?

In Kenya, tussles over ownership of property usually come up only when divorce or death has occurred. So when should the co-ownership take place and should the length of the marriage be a factor? Prof Kivutha Kibwana says that in all four kinds of marriages–Statutory (Christian and civil), Hindu, Islamic, and customary–a wife may acquire, control and own property during the subsistence of the marriage. He however notes that under the customary law wives do not enjoy substantial protection in matrimonial property questions.

“The woman’s role remains largely confined to maintaining, tending and improving the various forms of property,” he says. “The man’s unchallengeable position as head of the family militates against the woman’s freedom in property matters.” In a book he edited ” Women And Autonomy In Kenya: Policy and legal framework” Prof Kibwana recommends that Parliament enacts a uniform law of matrimonial property, and that in the new law a provision be made that household duties performed by a wife in any system of marriage in lieu of monetary contribution towards the acquisition of property entitle her to a share of the property so acquired by the husband during the existence of the marriage. He further recommends the new law should have clear guidelines on the status of property acquired by a spouse before marriage. Where a wife has contributed to the maintenance of property acquired before marriage, he argues, that contribution should transform itself into matrimonial property.

A Royal Netherlands Embassy publication–Kenya Country Gender Profile– says: “By tradition and social sanctions irrespective of the law, women in Kenya are not autonomous individuals but need a male guardian to act for them in all legal transactions to acquire and transfer property, to apply for loans and credit and sometimes even to seek employment or to open bank accounts.” But advocate Arthur Rachier differs with the position of the Royal Netherlands Embassy. “Perhaps they are referring to precolonial Kenya,” he says. “Nowadays women own property in their own names. Even the land boards do not stop women from buying land.” A property and civil lawyer, Rachier argues that there is no law in Kenya stipulating that married couples register their property jointly. “Husbands can hold matrimonial property in their names on behalf of the family,” he says. “If the two choose to register their property jointly, then the wife has a direct interest from the point of equity. Should her husband die before her, the whole property passes to her as the sole owner.”

“If the couple are professionals, for example engineers and lawyers and they choose to go to business jointly,” he says, “they will have an interest in common (not joint interest) which means that each owns half of the business or property.” Should one of the partners die or choose to leave, he or she takes half of the property. Rachier says that should the business be registered in the names of the husband, it is part of his estate and that there will be no dispute should he die having written a will on how it will be divided. However if there is no will, the property will be contested for by all interested parties (dependants) and that personal/religious/customary law will apply. He argues that women are free to either register their property jointly with their husbands or in their own names.

So if the law is as fair as Rachier says it is, why all the noise about women being discriminated against when it comes to property-ownership?

Speaking on inheritance and marital property in a workshop organised by Members of Parliament some time back, Ugandan President Yoweri Museveni said, “It would be natural injustice for a wife recently married to demand for co-ownership of the property she found with the husband. Co-acquisition should be equal to co-ownership.” Section 17 of the Married Women Property Act recognises that a wife’s contribution to matrimonial property registered in her name could be indirect. In such a situation, the contribution must exceed the normal contribution by a wife to normal household expenses, argues a Nairobi lawyer. He stresses that even then, the law insists on there being proof of direct contribution by the wife.