THE STRUGGLE OF WOMEN TOWARDS EQUALITY IN MATRIMONIAL PROPERTY IN KENYA

THE STRUGGLE OF WOMEN TOWARDS EQUALITY IN MATRIMONIAL PROPERTY IN KENYA 

By 

Valerie Mugaza

LL.B. (Hons) PGDL (2019)

ABSTRACT 

This study evaluates the jurisprudential developments in Kenya‘s matrimonial property regime as a gendered struggle by the wife for equality in property law. It argues that the requirement of non-monetary contribution in order to claim a share of marriage property as inscribed in section 7 of the Matrimonial Property Act is unconstitutional in its application, regressive and unequal for majority of Kenyan women who have culturally and socially been under constant attack due to various socio-cultural beliefs by the patriarchal society to which they belong. There is a belief that women do not deserve property hence no status in society, and it goes without saying that property is everything. In an African society such as Kenya it is not men who are said to 'gold-dig' but women. The courts, being theoretical in analysis of contribution as per Section 7 without being cognizant of the happenings in the society disregard all the unquantifiable hard work, labour and investments that married women put in their marriages, further perpetuating the oppression of women. This direct departure from the Agnes Nanjala William v Jacob Nicholas[1] decision further embeds the gold-digging‘ phenomenon in Kenyan jurisprudence. Statistics from the Human Rights Watch Fact sheet on women‘s property violations, find that women in Kenya constitute 80 percent of the agricultural labour force and provide 60 percent of farm income, yet own only 5 percent of the land.[2] Taking these statistics into account would it not be easy for women to significantly put in a lot of effort in building their homes but due to the lack of 'proof' of contribution depart with nothing? The legislators and courts are encouraging receipt- based marriages premised on 'divorce', women being required to keep account of the slightest non-financial contributions they make, a notion ignorant of factors such as love and power relations; a completely un-pragmatic and chauvinistic approach especially in African matrimonies where the man‘s word is said to be final. 

CHAPTER ONE: DISSERTATION OVERVIEW 

IT’S A MANS WORLD 

'I think that it would be surreal to suppose that the constitution somehow converts the state of coverture into some sort of laissez-passer, a passport to fifty percent wealth regardless of what one does in that marriage. I cannot think of a more pernicious doctrine designed to convert otherwise honest people into gold-digging, sponsor-seeking, pleasure-loving and divorce-hoping brides and, alas, grooms.'

Judgement of Kiage [2017] JA[3]

1.0. Introduction 

Matrimonial property is defined in Section 6 of the Matrimonial Property Act as the matrimonial home or homes; household goods and effects in the matrimonial home or homes or any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.[4] Throughout Kenya‘s history, the question of women and matrimonial property has always been contentious as women were never to be accorded land, wealth or power in a patriarchal society in the first place. 

Matrimonial property was never a subject of interest for many African women as, according to many African traditions and cultures such as the Kikuyu, Mijikenda, Kamba, Meru et al property was never from the start a ‗woman‘s show‘. Women were considered nurturers and property themselves. However, with the advent of colonialists into Kenya‘s history women began to voice their concerns in the struggle for matrimonial property equality.[5]

My argument is thus, with these property rights came even further discrimination towards women. Women were not only combatants in their homes and in society but also in the courts, The jurisprudence that exists in Matrimonial property is evidence of the matrimonial struggle of a wife trying not to be placed under the wing of her husband but grow her own wings. One would think that in our times, Judges would interpret provisions to give equal status to women but instead the argument being espoused in courts is that women accorded these matrimonial property rights equally would create a society of gold-diggers. 

The question then becomes, Should the basis of judges thus be premised on an un-proven notion of women and their love of money? It is my argument that the law is deeply gendered; this not being any different in the matrimonial property regime, and it is through the globalization of thought, that African women have embraced western philosophies such as ‗sponsor‘ or ‗sugar, mummy-daddy‘ mentalities as a coping mechanism, a survival method in the man‘s world. 

This chapter comprises the following: 

1. A summary of the historical background of the study, 

2. The statement of the problem, 

3. The research objectives, questions, and methodology, 

4. The hypothesis and assumptions of the study, 

5. The theoretical framework, 

6. Literature review and case studies and 

7. Summary and conclusion of the chapter. 

The Claim 

This Study argues that the requirement that divorcing parties should establish monetary and non-monetary contribution in order to claim a share of marriage property as inscribed in section 7 of the Matrimonial Property Act is unconstitutional in its application, regressive and unequal for majority of Kenyan women. The argument espoused throughout this study is that not only is the application of Section 7 stricto sensu unconstitutional, but it disadvantages the wife or wives who in her provision for mostly non-monetary contribution is diminished to nothing after the dissolution of the marriage sorely by her husband who denies her efforts in any shape or form and doubly by the courts that do not practically value her, by not having a system in place to ensure an appraisal of her non-monetary contribution for the family in an effort to guarantee that it is not made secondary to explicit financial contribution. The claim herein is thus, whereas courts exist to apply and interpret the constitution purposively, there is still a reluctance by Judges to transform through their judgments the deeply entrenched systemic patriarchal structures in society and negative attitudes surrounding women and property ownership in Kenya. 

1.1. Historical Background & context 

1.1.1. Pre-colonial 

Prior to the arrival of colonialists in Kenya, Matrimonial property was mainly governed by the African legal systems and methods.[6] Amongst the Kikuyu, Kamba, Meru, Kuria, Nandi and Kipsigis, Elgeyo, Marakwet, Tugen and Pokot, whether the property was acquired before or after the marriage, the wife was expected to take all her property but divide that which was acquired through joint effort.[7] In other groups, like Luhya and Kisii, a wife will not take any property obtained after marriage, including her personal effects.[8] A further discussion on this background will be given in

Chapter two. 

1.1.2. Colonial rule 

After the introduction of the 1897 East Africa Order in Council, certain Acts of Britain and India applied to the East African protectorate. Among these was the English Married Women‘s Property Act of 1882[9] that applied in a way to discourage the property ownership of women; any personal property that the wife acquired during the marriage would automatically be owned by the husband without any consideration to the woman‘s contribution in marriage.[10] Different case law such as National Provincial Bank v. Ainsworth and Pettit v. Pettit shall be illustrated in this 

Chapter as a basis of in-depth argument. 

1.1.3. Post-independence (pre 2010) 

Kenya gained independence from the British in 1963 after a struggle inspired in part by inequalities in the colonial land regime. In the decades following independence, some colonial era laws lingered and many new laws were introduced, none of which adequately protected women's property rights.11 During this time and until 2010 the status of women in marriage still remained the same. This Era put to the test many laws in the corridor of justice; one of the most notorious legislation was the English Married Women‘s Property Act. A thorough discussion of cases including Karanja v Karanja, Kivuitu v Kivuitu and Echaria v Echaria shall be discussed in chapter two. 

A discussion on different human rights revolutions in international law to bring about 

International instruments affirming the equal treatment of the woman‘s rights such as the International Covenant of Economic, Social and Cultural Rights [ICESCR], International Covenant on Civil and Political rights [ICCPR], the Convention on the Elimination of all forms of Discrimination Against Women[CEDAW], the African charter, the Universal declaration of Human rights [UDHR] shall also be discussed further in chapter two.[11]

1.1.4. Post-independence (Post 2010) 

The 2010 Constitution was the new hope for the Kenyan wife, it was not only going to right all the wrongs made but was going to put an end to her many years of unconcealed suffering. Case law on matrimonial property began to evolve and judges embraced the idea of division of matrimonial property to 50:50 settlements; cases such as Agnes Nanjala William v Jacob and Nicholas and C.M.N. v. A.W.M shall be discussed vis a vis a discussion of the Matrimonial  Property Act of 2013. 

1.1.5. Contemporary period 

It is not until the enactment of The Constitution of Kenya 2010, which was preceded by intense lobbying by women human rights groups that legislators saw the need to legislate on women and their property rights in marriage.[12] The Constitution of Kenya in its Article 45 (3) 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.[13]

It is in this regard that in 2013 the Matrimonial Property Bill was passed into law with key amendments that would have ensured an equal status to the husband and wife; getting rid of the years of historical injustices in the family unit. Whereas before the amendments ownership of matrimonial property was to be in equal shares despite contribution, the Matrimonial Property Act in section 7 today states that division of matrimonial property shall be based on the contribution each spouse made in its acquisition. This has in turn created a dilemma between the equality provisions in the Constitution and legislation.[14] The dilemma being, on one hand the Constitution states that parties shall have equal rights, before, during and after marriage. Making it clear that the burdens and benefits throughout and at the end of a marriage are to be shared equally between both parties while on the other hand, Section 7 of the MPA[15] states that for a party to gain access to Matrimonial Property upon divorce, they must show proof of contribution in the acquisition of the matrimonial property (whether monetary or non-monetary). The dilemma thus lies in the requirements of the two provisions, one being a superior law to the other. 

1.2. Statement of Problem 

There is a problem with the wording of Section 7 of the Matrimonial Property Act as read together with Article 45 (3) of the Constitution of Kenya. Article 45 (3) confers equal rights to spouses before, during and after the marriage, while Section 7 imposes an obligation for a spouse to prove contribution, whether monetary or non-monetary which is blatantly unconstitutional. It is the case that most wives cannot prove their ‗contribution‘ hence miss out on a share (that was intended to be divided equally) of their matrimonial property making them unequal and unfit competitors in the socio-economic, socio- political spectrum. The law drafters and judges in our courts advocate for patriarchal and sexist ideals due to their theoretical application of the law which is devoid of the realities that women face in society, hence it is a problem that the law is not at par with the Kenyan societal disfavor towards ‗equality for all‘ further perpetuating discrimination against women. 

1.3. Legislative framework 

The fundamental Laws in Kenya that govern matrimonial property 

are the Matrimonial Property Act of Kenya 2013, The Constitution 

of Kenya 2010, read together with other Laws such as the Law of 

Succession Act and the Marriage Act of Kenya 2014; a consolidation of different laws that were divided amongst ethnic 

and religious lines. 

1.4. Research Questions 

The questions that I hope to address with this research include the following: 

1. Why is contribution a necessary evil in the division of matrimonial property? 

2. How will the division of Matrimonial property in 50/50 encourage gold-diggers and lazy husbands? 

3. Are power relations a huge factor in determining the division on matrimonial property? 

4. How can the curbing of this problem (inequality in property and land laws) reduce the levels of world and African poverty (bearing in mind the feminization of poverty)? 

1.5. Hypothesis 

It is hypothesized that despite the provisions in the law speaking to lack of discrimination on the basis of ‗sex‘ women are discriminated against on the basis of their gender by the legislators, society and the judiciary. Secondly, the act of contribution during marriage although includes non-monetary contribution - financial contributions are still given much more value by the matrimonial property system hence more likely to favour the husbands to the detriment of the wife. 

Women experience far more discrimination than men before marriage, in marriage and after marriage. In regards to financial contributions, it is difficult to accurately equate the emotional support women invest into the family; women are the biggest contributors to the success and function of the family unit. 

1.6. Theoretical Framework 

Theories are a philosophical rationale, explanation or justification of a problem statement by many other scholars. The theories purposely utilized in this study assist in the pursuit of answers to the research questions presented. This study was guided by The Labor Theory and Feminist Theory from writings by feminists such as Carol Smart along with Globalization of thought to discuss the emergence and impact of western philosophy such as gold- digging in the Kenyan society. 

1.7. Literature Review 

This part of my research is a brief over view of what previous researchers have to say on this topic of division of matrimonial property upon divorce and the question of unconstitutionality of Section 7 of the Matrimonial Property Act; it is a discussion on what writers think of the division of matrimonial property in 50/50 and with and without the non-monetary contribution. 

It has been established by various authors that women are mostly the victims when it comes to the division of matrimonial property upon divorce. J. D Ochieng[16] writes that the inequality of sharing of such property can be attributed to several factors ranging from economic, social, cultural, religious, political and constitutional. His study concludes that women have been on the receiving end and are mere spectators in the process of legislation and implementation of laws that govern the division of matrimonial property upon divorce. Women according to Ochieng have been marginalized from full participation in the development process alongside men. He further contends that the decision‘s in Echaria v Echaria[17] and Muthembwa v Muthembwa[18], were male dominated which lead to the oppression of women folks on account that they must show proof of their contribution in the matrimonial property.[19] The author further notes that during the process of amending the matrimonial property Bill in Parliament, 87 law makers voted to have the property shared according to the contribution made; three MP‘s abstained, and 28 MP‘s voted to back the proposal for a 50-50 sharing of the matrimonial property; but there were only 34 women MP‘s in the house; of course the amendment was not going to pass.[20] Ochieng contends that the issue of women and the division of matrimonial property is deeply gendered. He gave several recommendations in his writing as a way to evaluate this issue; including embracing different models of approaching the division of matrimonial property that are more pragmatic. Women‘s engagement in policy making, the abolishment of inhibitions such as discriminatory societal attitudes and negative customary laws were amongst the recommendations discussed by Ochieng as a way to curb this issue. 

Some authors such as Pauline Musangi have noted similar patterns; indeed that women‘s rights to own property, inherit, manage or dispose-of property have continuously been under attack from customs, laws, and individuals including government officials who believe that women cannot be trusted with or do not deserve property.[21]

In addition to these societal conceptions many widows are being disenfranchised of their property through repugnant customs. In some areas, widows are forced to engage in risky traditional practices involving unprotected sex in order to keep their property. These practices include what is known as wife inheritance. Women are therefore facing a lot of discrimination despite equality provisions in legislation. This could only point out to several factors such as biased-decision making by male legislators,; or as Pauline discussed in her paper on women land and property rights, a majority of Kenyan women have little awareness of their rights and seldom have the means to enforce them, According to the statistics in The World Bank[22] women have a 67% literacy level as compared to men with 78%. She thus recommends that there should be deliberate efforts by government to create more awareness on land and property rights especially to women as well as, like J.D Ochieng stated, ensure that women are engaged meaningfully in policy making institutions and in parliament. In both elected and appointed bodies, women are either missing or disproportionately outnumbered by men.[23]

Mitchelle Oyuga and Nancy Ikinu writing as lawyers in the Federation of Women Lawyers 

[FIDA- K][24], demonstrate the unsatisfactory nature of the Matrimonial Property Act of 2013. They show how The Constitution of Kenya recognizes equality between parties in a marriage by stating categorically under Article 45 (3) that parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of marriage; that the Constitution goes on to provide that every person is equal before the law and has the right to equal protection and equal benefit of the Law. 

Yet according to Section 7 of the Matrimonial Property Act these Constitutional guarantees of equality are reneged by the introduction of the burden of proof in determining contribution, particularly non-monetary contributions. This the authors contend, poses a challenge especially to women who contribute to the acquisition of matrimonial properties but have no tangible proof of the same which at most is usually the case. The authors transcribe that this is what used to happen prior to the adoption of Kenya‘s Constitution in 2010. Case law held that at separation or divorce, property was to be distributed in proportion to a spouse‘s monetary contribution to that property. This line of reasoning severely discriminated against women, who generally did not provide monetary contributions to the property, but provided farm labor and child care. 

In the new post 2010 regime, the authors thus argue the same concept applies. Spouses who contribute to the acquisition of matrimonial property but have no tangible evidence are left with nothing. 

Further they argue that the courts providing that parties can only seek the division of matrimonial property after divorce or separation is cumbersome because there are many instances where women are seeking division of matrimonial property but want to save their marriage. It is possible from the literature of Nancy and Mitchelle for one to therefore argue that there are many instances where women are not able to get their matrimonial property either because of the power relationship (the respect of the husbands final word as the male authority in the household), ignorance or also that women actually fight to keep their marriages as opposed to the notion of divorce to simply acquire wealth as the courts jurisprudence demonstrates. 

The critics make reference to the petition filed by FIDA-K in 2016, alleging inter alia a contravention of rights and fundamental freedoms of the constitution through sections 6 (1) ( C) and 7 of the Matrimonial Property Act 2013. In the petition the Petitioner averred that through its network of lawyers and female clients it received numerous concerns on the Constitutionality of certain provisions of the Matrimonial Property Act 2013 including section 7. 

The Petitioner submitted that section 6 (1) C precludes property which is registered in the sole name of one spouse to the detriment of the other. The Petitioner further affirmed that majority of married women in Kenya do not hold any property jointly with their husbands while they are entitled to be joint owners as they helped to acquire the same as matrimonial property. 

The Petitioner further averred that this provision will be used to deprive many married women of their fundamental rights to land and property contrary to Articles 40, 60 and 68 of the Constitution because their names are not on the ownership documents of the property, the said property is not matrimonial property. 

Regarding section 7, the petitioner averred that the provision of ―according to the contribution of either spouse towards its acquisition‖ is contrary to Article 45 (3) of the Constitution: that parties shall have equal rights at the time of marriage, during the marriage and at the dissolution of the marriage. FIDA Kenya emphasized that this provision further, infringes on the rights of married women to own property after the dissolution of a marriage as they must prove their contribution towards its acquisition and while the definition of contribution has been expanded to include non-monetary contributions if this remains the case, the bulk of the property will belong to the spouse who has made monetary contributions and has proof of the same. 

This they said is a stark contrast to Section 10(2) of the Matrimonial Property Act which states that ―any liability that was reasonably and justifiably incurred shall, if the property becomes matrimonial property be equally shared by the spouses, unless they otherwise agree.‖ Section 10(3) of the Matrimonial Property Act states that parties to a marriage shall share equally any liability incurred during the subsistence of the marriage and reasonable and justifiable expenses incurred. 

They conclude that if liabilities are to be shared equally then assets must also be shared equally at the end of a marriage. Apart from violating the Constitution the petitioner then stated that the provisions violate a number of treaties and conventions that form part of Kenyan law under Article 2 (5).These are Protocol to the African Charter on Human and Peoples' Rights on the 

Rights of Women in Africa(Maputo Protocol), the African Charter on Human and Peoples Rights(Banjul Charter), the International Covenant on Civil and Political Rights(ICCPR) and the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW)[25]

From the discussion of the petition by the author‘s one cannot help but notice the particular bias the Matrimonial Property Act seems to demonstrate. Whereas on one hand section 7 demonstrates the aspect of contribution in the division of matrimonial property, Section 10 (3) does not allow liabilities to be shared equally. If women are thus unable to give evidence of their contribution towards the matrimonial property, how then can then same act place a burden of equal liabilities on the same subjects that do not have the advantage of ownership of any of their matrimonial assets? 

The authors concluded that although the constitution of Kenya 2010 is lauded to be a progressive constitution, legislators must ensure that it‘s enabling legislation are in conformity with the letter and spirit of the constitution. They write that the Matrimonial Property act of 2013 may have ameliorated the harshness of the Married Women‘s Property Act of 1882 but the highlighted provisions have been found inconsistent with the supreme law as well as international treaties and conventions and the Kenyan petition set a stage for the re-examination of Matrimonial property. 

1.8. Case studies 

Part of my research methodology are case studies. Case studies are practical demonstrations of my problem statement in practice. The case studies below will be the anchor to this paper. 

Voices of Widows, Divorced and Separated women 

E. Owino 

Owino, a fifty-four-year-old widow from western Kenya, said that shortly after her husband died, her in-laws grabbed her farm equipment, livestock, household goods, and clothing. The in-laws insisted that she be ―cleansed‖ by having sex with a social outcast, a custom in that region, as a condition of staying in her home. They paid a herdsman to have sex with Owino, against her will and without a condom. Her in-laws later took over her farmland. She sought help from the local elder and chief, who did nothing. Her in-laws forced her out of her home, and she and her children became homeless. No longer able to afford school fees, her children dropped out of school. [26]

T. Kamuye 

T. Kamuye, a thirty-five-year-old Maasai woman, was abused by her husband for years before they divorced in 1999. ―My husband cut me on the head,‖ she said. ―He was going to kill me... He told me, ‗I‘ll cut your neck,‘ and tortured me.‖ Kamuye and her three children fled to her parents‘ home, and her father returned the dowry to her husband. At the time, her husband owned at least two hundred sheep and cattle, but she got none of them. She explained: 

When I left my husband‘s home, I didn‘t try to take property. In Maasai custom, women are not supposed to go back for property. A woman has to look for new livestock…If a woman buys property during the marriage or brings it to the marriage, she would leave that with the husband upon divorce.... When I married, my parents-in-law gave me twenty sheep and twenty cattle. These were not really mine, even though they were given to me. I had to leave them.‘[27]

M. Abudo 

A mother of eight children, M. Abudo‘s violent husband separated from her and kept all of their property in Kisumu, including vehicles, land, and furniture. She got nothing. Abudo went to live with her mother, but her relatives forced her out when her mother died because they thought a daughter should not inherit. ―I became homeless,‖ she said. ―My relatives set upon me and beat me viciously. I was afraid I‘d die.‖ 

From the above case studies it is easier to see the lack of participation and appreciation of women even after the end of a marriage; the expectation is that they leave with nothing, lucidly challenging the equality provisions in article 45 of the Constitution of Kenya and the requirement of contribution as an element to divide property. Most literature is literature that addresses the general inequalities women face in accessing property before, during and after marriage, my literature will be a gendered analysis of section 7 of the Matrimonial Property Act in particular; demonstrating the flaws and inequalities of the system.[28]

1.9. Objectives of the Study 

This study has three main objectives. The first is to demonstrate the discrepancies between the law in theory and law in practice. Whereas the law preaches equality, there are no efforts towards attaining this equality causing women fundamental disadvantages economically, socially and culturally. Secondly, is to demonstrate the glitches caused by the unconstitutional nature of Section 7 of the Matrimonial Property Act. Thirdly, is to demonstrate the gendered perspective in the Kenyan jurisprudence against women and their ownership of matrimonial property at the end of a marriage. 

1.10. Research Methodology 

Research methodology is the ways in which a researcher intends to collect data as a response to the assumptions or hypotheses made. This study relied heavily on secondary data than on primary data. I used textbooks, magazines, articles, commentaries, encyclopedias and other useful sources. This study heavily relied on FIDA periodic reports, annual reports, government records, judicial analysis and other relevant publications. It is generally contended that the current law is applied inconsistently by judges, who have no legislative parameters within which to assess critical issues such as the contributions, needs and resources of separating couples. To demonstrate this I shall rely primarily on pre-2010 and post-2010 case law. 

1.11. Chapter Breakdown 

This thesis is divided into five chapters. The first chapter is a general over view of the whole dissertation; the second chapter traces the historical struggle of the wife in the matrimonial property system pre-2010 and post-2010. In the third chapter, the wife‘s matrimonial property struggle will be analyzed using different scholarly theories. The fourth chapter is my jurisprudential contribution to the recent Court of Appeal[29] decision between PNN as the appellant and ZWN as the Respondent. I will strive to demonstrate the unjustifiable nature of section 7 in Kenya‘s matrimonial property system. The fifth and final chapter will comprise of the conclusions and recommendations. 

1.12. Conclusion 

This chapter has introduced the background of the study, the statement of the problem, the purpose of the study and the objectives of the study. The objectives of the study lead to the outlining of the research questions which were the guiding principles of the study. The hypothesis, theoretical framework, literature review, and research methodology were also discussed in this chapter. 

CHAPTER TWO: A HISTORICAL BACKGROUND OF 

THE MATRIMONIAL PROPERTY SYSTEM :TRACING 

HER STRUGGLE. 

'We have not come from Venus. When you marry a woman, you do so when you‘re slightly older, in that time a man has made a few coins and bought some property. The issue of 50-50 is never applicable in the African context. We want the sharing to be based on the contribution. You don‘t need someone to come here and hang around and then walk away with half of your  property when they never contributed anything,'[30]

-Asman Kamama, MP [2013]- 

2.0. Introduction 

Property rights, meaning the access to, control over and ownership of title to property is an important area of discussion in this paper regarding matrimonial property, as a person who has the power to all these functions has control and control gives rights of access to resources and therefore determines the distribution of benefits in society. Control also means economic empowerment of the owner.[31] Property rights in Kenya have evolved in four stages; the precolonial times, colonial times, post-colonial and the contemporary period. There is no doubt that historically Kenyan women have struggled to get a voice in matters of property control. 

This chapter is a critical appraisal of the Kenyan women‘s matrimonial property struggle and the evolvement of the matrimonial property regime before the interlude of Kenya‘s history by the colonialist that established multiple systems of law. This chapter argues that despite the shifts that happened throughout the years in marriage law, one thing is clear; with the contemporary jurisprudence, Judges are resorting back to the colonial outlook (which was largely advancing male ideologies) on matters to do with marriage such as the division of matrimonial property instead of advancing with international standard‘s. Most existent legal systems were designed by men to favor men, and in these struggles are the voices of women suffering to find their place in a patriarchal heaven. 

2.1. Pre- Colonial Times 

In pre-colonial times, the laws that governed matrimonial property rights were the customary laws of each particular ethnic group. Real property such as land was communally owned, managed and controlled for the benefit of the community at large. Women retained life interests in the family land but this right ceased upon remarriages in cases of a widow. The Muslims and Hindus were governed by their religions in matters pertaining personal law.[32]

During this time, it is evident that Kenyan women did not have the right to have title or ownership over any property during marriage, after or before. The question of women‘s matrimonial property rights therefore does not seem to arise, as the overriding factor were the different customary laws that were principally patriarchal. Women were married as property, without property, and left the same way. The wife may have been experiencing serious discrimination in this traditional regime such as wife inheritance and contributing ominously towards the creation of wealth for the family knowing that she was entitled to zilch. This would possibly encourage her to stick in the marriage despite the ill treatment that she may have been getting as deep inside her heart she knew that she was an architect of the family home; but because there were no diverse laws to act as an escape for her, the wife continued to persevere the burden of the cross of her family on her breaking back still hopeful for a better future. 

2.2. Colonial Times 

During this time, there was an attempt to ‗westernize‘ or ‗civilize‘ the Africans and various statutes were enacted by the Caucasians brothers to control that process.[33] Amongst the statutes that were enacted was the Married Women‘s Property Act, 1882.[34] A statute of general 

application that applied to the distribution of property upon divorce in all types of marriages in Kenya. It was considered an antiquated Act, ill-equipped in every way to deal with the realities of the lives of Kenyan women or to protect their basic human and economic rights.[35] There was therefore not only one problem in this time but two, as the courts and the laws were an extension of the western ideologies such as the doctrine of coverture that believed the wife was an extension of the husband and was to rest under his wings. 

The colonialists imposed a legal system created to supersede an already existent African system which was catered specifically to each community‘s way of life. There was therefore always a scuffle between two legal systems; the English conception that was considered formal and just and the African system that was considered informal and repugnant to morality. In most African countries formerly under British rule, marriage defined the colonial state in two important respects. Between 1850 and 1930, declarations by colonial courts that African customary marriages were invalid because they were not conceptually identical to English marriages opened the way for colonial governments to assume and exercise territorial authority.[36]

As Professor Kang‘ara writes in her article-,[37] between 1930 and 1960, important changes in international law and local resistance to colonialism influenced colonial law to recognize customary marriages as valid and customary land tenure as worthy of protection. Despite this shift, colonial governments however maintained that the English form of marriage was superior and offered incentives for conversion of customary marriages.[38]

The formal recognition of both forms of marriage therefore only ushered in an era of competitive and disharmonious coexistence, creating systemic problems and great need for state-directed marriage law reform.[39] With these continuous struggles one is able to see how the laws of matrimonial property although purported to save the Kenyan wife from the chains of her African traditions, disfavored her in the long run through the patriarchal mentalities enshrined in the statutes as well as the westernized perspectives reinforced by male Judges in courts. 

Important to the discussion of this epoch is the doctrine of coverture. Sir William Blackstone in his commentaries on the laws of England,[40] wrote that: ―by marriage a man and woman are one person in law. That the very being legal existence of the woman is suspended during the marriage or at least incorporated and consolidated into that of the husband. Under whose wing, protection, and cover, she performs everything. Upon this principle, a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant anything to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence.‖ 37

The English conception of the woman was therefore clear, that the woman was not to have status of her own and thus would be at a loss when divorcing the baron covert as she had no entitlement. When the colonialist thus purported to save the African woman, they only imposed the same laws in a way Africans did not understand to fool them into purchasing their ideology that was not much different from the patriarchal reigns. 

Reference is made to the harsh sole technical clause available for courts to regulate property distribution between spouses often depriving wives of any shares, much less equal share to matrimonial property found in Section 17. This Section of the MPA provided that in any question between the husband and the wife as to title or possession of property either party may apply for an order to the court and the judge may make such an order with respect to the property in dispute as he thinks fit.[41] The view that section 17 of the Married Women‘s Property Act put matrimonial property at the hazard of unfettered discretion of the judge led to the change in law in 1970. 

Changes were effected under the Matrimonial Property and Proceedings Act of 1970. The amendment under Section 37 provided that where a husband or a wife contributes in money or in money‘s worth to the improvement of real and personal property in which both have 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. This meant non-monetary contributions were subject to consideration by the courts.[42]

It is clear therefore, that until the amendments of 1970 as demonstrated in the Rulings of the case National Provincial Bank v.Ainsworth and in Pettit v. Pettit[43] the Married Women property Act was designed still to disfavor the wife while some Judges of the Courts upheld the English doctrinal beliefs such as coverture. The two systems grappled with the idea of according the wife her own status in law, with some Judges resorting to the English perspective in their decisions while others revolted to establish new precedent in tandem with the global changes and international law. 

2.3. Post-Colonial Times (Pre-2010) 

Even years after Kenya attained her independence and the colonialist abandonment of the colony, the Kenyan courts did not have an idea (and still don‘t to an extent) of how to shuffle between the two systems or how to balance the interests of the two systems with emerging trends in the law. This struggle is evident through the case law established between the 1960‘s and the 70‘s. The two voices being; one for keeping the status quo in the oppression of the rights of the wife, another for changing the status quo in empowering the wife by giving her a status, separate from that of her husband. The cases below are examples of this phase of the struggle. 

In Kenya, the application of section 17 first came to the fore through the case of Karanja vs. 

Karanja.45 Here the wife brought an action under section 17 of the Married Women‘s Property 

Act. She averred that she had made financial contributions towards the purchasing of matrimonial property. Her husband on the other hand maintained that even if that were the case Kikuyu Customary law did not permit women to own property. 

The couple had been married under the African Christian and Divorce Act and throughout the course of marriage the wife had made 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 ran the home. In support of her claim for financial contribution she tendered evidence that every month her salary went to her husband‘s account who would withdraw it for his personal use. 

The property in dispute was a farm in Karen where the matrimonial home was situated and the wife claimed that she was a joint owner of the said property. She claimed that her husband evicted her from the matrimonial home when he met another woman forcing her to live in the servant squatters. Although the couple had other property the wife claimed that she was entitled to remain in Karen since she is the one who developed it.[44]

In its determination the court ruled that the contribution amounted to one third of the entire value of the matrimonial property. The husband was advised to sell off the property and give 300,000 thousand Kenya shillings being a third of 900,000 to the wife. 

The case of Karanja v. Karanja is a seamless example of the struggle of the woman to claim her right in the matrimonial property regime. Whereas she left her traditional home and hurdled into the English home as her hope for fair treatment, it is evident that her incapability to prove financial contributions still put her at a loss. Mr. Karanja being entitled to Kenya Shillings 600,000 more than the courts attributed to her seems quite unjustifiable especially considering the circumstances of the case, but due to her inability to quantify her contribution she suffered a silent death. 

Later the Karanja decision was reaffirmed in Kivuitu v Kivuitu[45] by Omolo, Ag JA (as he was then), who laid down the rule that where property acquired during coverture is registered jointly, it shall be presumed to be held in equal shares. In his obiter dicta, Omolo went further to presume that every wife has some interest in property acquired and registered in her husband‘s sole name due to her indirect contribution occasioned by fulfilling the duties of a wife and mother.[46] This particular case law did not address the question whether indirect contributions alone can suffice for orders under Section 17 of the Married Women‘s Property Act. Also, it did not lay down any general principle of equality applicable to all property disputes between husband and wife as later addressed in Fatia Essa v. Mohamed Alibhai, and Tabitha Wangeci Nderitu v. Nderitu. [47]

In the case of Beatrice Wanjiru Kimani v. Evanson Kimani Njoroge[48] for instance, the High court (Kuloba J) found against the woman on the grounds that in a dispute over matrimonial property ―contribution of whatever form must be proved on evidence unless the other party admits it‖ and that in that particular case, the court could find no evidence of the contribution of the wife which enabled the husband to be relieved or saved from the family responsibilities so as to purchase the properties claimed.[49] In this particular case for instance, the Court of Appeal (Civil appeal No.79 of 1997, Gicheru, Omolo & Lakha JJA) set aside the High Court‘s judgment and ordered the case to be re-heard before another judge on the grounds that the trial judge had ‗taken off-course 

discourse on women bordering on bias against the female gender and purported to give unsolicited guidelines on the law of property‘. 

The struggle is evident in the cases discussed above, even after the colonialists left, Judges were still struggling to apprehend the place of women in matters of matrimonial property and some evidently still expressed the same bias as was exerted during the pre-colonial and colonial times. 

In the case of Kivuitu v. Kivuitu Masime J.A. at page 243 wrote that the most of the Kenyan African communities are patriarchal and the matrimonial home is usually settled by the husband. Consequently, upon divorce, it is usual for the wife to leave that home and in the process the wife will usually take away only her self-acquired personal property; any property which belongs to the matrimonial home and landed property invariably remain with the husband. It was therefore not a hidden fact, that women were never accorded similar status when it came to the division of matrimonial property during colonial times and even after before the promulgation of the 2010 Constitution. Evidently, on a close analysis of the jurisprudence the push and pull of the placement of women in the matrimonial property regime is evident. 

It was in very few instances where the courts applied the 50-50 provision such as in the case of Essa v Essa, where upon her proof of financial contributions, the court awarded her 50% of that property as well as the case of Tabitha v. Nderitu where the court analyzed its previous decisions and awarded 50% to a wife married under customary law and whose contribution was indirect.53 After the colonialist left, the shift from the white law back to the African law was in no way according the wife the status she deserved. Despite this inequality in the law, civil society and revolutionary feminist judges ensured that her voice was still, even though silent, heard. 

2.4. Post-Colonial times (Post-2010) 

The 2010 Constitution was the new hope for many Kenyan wives; it was not only going to right all the wrongs made but was going to put an end to her many years of unconcealed suffering. Case law on matrimonial property began to evolve and judges embraced the idea of division of matrimonial property to 50:50 settlements. In Agnes Nanjala William v Jacob Nicholas[50] the court held that Echaria[51] was not good law, court invoked Article 45(3) of the Constitution. In his judgment the learned Judge opined that, ‗the new constitution is expected to re-shape the legal landscape. A positive feature of this new constitution is that it has the principles of equality and social justice woven through it. It places an obligation on all persons to live up to the national values set out in Article 10(2) which include sharing, equity, social justice and protection of the marginalized. Having said that, there are specific articles that deal with women‘s property rights. Article 45(3) of the Constitution provides that the 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 article clearly gives both parties to a marriage equal rights before, during and after a marriage ends. It arguably extends to matrimonial property and is a constitutional statement of the principle that marital property is shared 50-50 in the event that a marriage ends. However, pursuant to Article 68 parliament is obligated to pass laws to recognize and protect matrimonial property, particularly the matrimonial home‘.[52]

From this case and many others such as C.M.N. v. A.W.M[53], it is clear that the courts began to, after years of struggle and litigation especially after the introduction of the new Constitution, interpret the law in favor of the 50-50 provision. The Constitution was intended to be the document that would transform lives and it marked an important time in the history of Kenyan women because it meant that her oppressed voice would finally be heard. However, all hope was lost again upon the endorsement of the Matrimonial Property Bill of 2013 into law as jurisprudence began to retrogress into what it used to be, purely chauvinistic and unfair to the wife. 

The coming into effect of the Constitution of Kenya 2010 triggered the enactment of the Matrimonial Property Act No.49 of 2013 to provide for the rights and responsibilities of spouses in relation to matrimonial property. The Matrimonial Property Act was assented to on 24th 

December 2013 and commenced on 16th January 2014 thereby repealing the Married Women‘s Property Act of 1882.[54] This is in conformity with Article 68 which obligated Parliament to pass laws to recognize and protect matrimonial property, particularly the matrimonial home. The Act applies to all marriage regimes and excludes persons who profess the Islamic faith who may choose to be governed by Islamic law in all matters relating to matrimonial property. The 

Matrimonial Property Act, 2013 borrows heavily from the letter and spirit of the 2010 Constitution.59 It ameliorates the harshness that was associated with the Married Women‘s 

Property Act of 1882 by recognizing that married women have the same rights as married men. 

Section 4 provides that a married woman has the same right as a married man – (a) to acquire, administer, hold, control, use and dispose of property whether moveable or immovable; (b) to enter into a contract; and (c) to sue, and to be sued in her own name.[55]

In addition, the Act marks a positive departure from the previous regime by recognizing both monetary and non-monetary contribution. Supportive roles such as child care and domestic work are now legally recognized at the dissolution of marriage and during the division of matrimonial property. These were roles that ordinarily were not considered as contribution towards acquisition of matrimonial property. Section 6 (1) of the Act defines "contribution" as monetary and non-monetary contribution and includes— domestic work and management of the matrimonial home; child care; companionship; management of family business or property and farm work. In addition the law provides that a spouse, who makes a contribution towards the improvement of a non-matrimonial property, acquires a beneficial interest in the property equal to the contribution made.61 

The Matrimonial Property Act has a general positive atmosphere, however, the unsatisfactory nature of the Act lies in Section 6 and 7, which is of paramount importance to the struggle of the wife. 

The Constitution of Kenya recognizes equality between parties in a marriage by stating categorically under Article 45 (3) that parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of marriage. The Constitution goes on to provide that every person is equal before the law and has the right to equal protection and equal benefit of the Law. 

Section 7 of the Matrimonial Property Act reneges these Constitutional guarantees of Equality by introducing the burden of proof in determining contribution particularly non-monetary contributions. This poses a challenge especially to women who contribute to the acquisition of matrimonial properties but have no tangible proof for the same.[56] This was prevalent prior to the adoption of Kenya‘s Constitution in 2010. 

Case law held that at separation or divorce, property was to be distributed in proportion to a spouse‘s monetary contribution to that property. This line of reasoning severely discriminated against women, who generally did not provide monetary contributions to the property, but provided farm labor and child care.[57]

2.5. Contemporary Period 

In the new regime, the struggle of the woman seems to have worsened. The pre 2010 and Post 2010 Jurisprudence demonstrates a struggle to reconcile the modern international demands of equality between spouses and the ancient colonial requirement of contribution. Spouses who contribute to the acquisition of matrimonial property but have no tangible evidence are still left with nothing. One would think that 50 years after independence there would be a transformation and an adjustment in the narrative of the woman‘s struggle, but that is not the case. The two systems of law still grapple which each other. 

2.6 International Instruments and Women’s Equality in Marriage 

The following is a discussion on the various International instruments which affirm the equal treatment of the woman‘s rights which was as a result of different human rights revolutions in international law. In addition to National legislation that gives effect to equality in marriage and women‘s equality in matters of property there exist a multitude of international instruments. 

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),[58] contains various articles touching specifically on marriage and equality in marriage. Article 16 of the convention provides that States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women that they have the same rights and responsibilities during marriage and at its dissolution[59] and that there should be the same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.[60] In the proceeding article, Article 15, states parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity and in particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals. 

The Solemn Declaration on Gender Equality in Africa, the African Union,[61] through paragraph 

7, agreed to actively promote the implementation of legislation to guarantee women‘s land, property and inheritance rights including their rights to housing. In addition to this legislation, 

Article 6 of the Protocol to the African Charter on Human and Peoples‘ Rights on the Rights of Women in Africa[62] (ACHPR), deals specifically with marriage and provides that States Parties shall ensure that women and men enjoy equal rights and are regarded as equal partners in marriage and to bring life to this the state parties are to enact appropriate national legislative measures to guarantee that amongst other rights that during her marriage, a woman shall have the right to acquire her own property and to administer and manage it freely.[63] Furthermore, Article 7 of the ACHPR, provides that States Parties shall enact appropriate legislation to ensure that women and men enjoy the same rights in case of separation, divorce or annulment of marriage and more specifically in Article 7(d) the ACHPR provides that, in case of separation, divorce or annulment of marriage, women and men shall have the right to an equitable sharing of the joint property deriving from the marriage. 

Article 23(4) of the International Covenant on Civil and Political Rights[64] clearly affords that States Parties to the covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. 

The Constitution of Kenya 2010 not only gives recognition to these international instruments but it also reaffirms and gives legitimacy and force of law to their application in Kenyan Courts through Articles 2(5) and (6). These articles provide for the integration of the general rules of international law as a part of the law of Kenya and further states that any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution. The Courts must uphold equality in marriages and all attending acts provided for in both domestic and 

international laws. 

2.7. Conclusion 

Despite the aforementioned provisions of international law that speak for women‘s equality during and after marriage, Kenya‘s jurisprudence is still fighting to mirror and enforce the laws found within its national legislation and international laws which provide for equality of spouses to marital property. This position has been demonstrated clearly by the recent Court of Appeal decision of PNN V ZWN [2017] eKLR, through the Judgments of Waki, JA, Azangalala and Kiage. The wife is forced to revisit the wounds acquired almost half a century ago, only this time a little salt is added to the injury; she is said to enter the institution of marriage because of her thirst for quick money, a gold-digger; hence the male judges demonstrate there is no space in the law for such calculated gains. Courts are stuck in the Married Women‘s Property Act rut of proof of non-monetary contribution even after all evidence exposing the flaw in this way of practice has been exhibited in multiple cases brought forth. The question then becomes whether it is the Constitution or the Matrimonial Property Act that should guide precedence going forward in matters of division of Matrimonial Property. The answer is unequivocal, it is the grundnorm- the Constitution- that is to be the guiding light on matters of marital equality. 

CHAPTER THREE: A THEORETICAL UNDERPINNING OF THE PROBLEM THE MAN OF LAW 

'Wives, submit yourselves to your own husbands as you do to the lord. For the husband is the head of the wife.'[65]

3.0. Introduction 

This Chapter uses three main ideas to highlight the notion that the law is male and because the law is male, it is deeply controlled and designed to suit the male subject. It is my argument therefore, that the legal system disfavors women, or appears to favour them in theory but not in practice, all due to the benefits of economic empowerment. This then leaves no space for women to acquire matrimonial property. Men realize, and this is inclusive of Judges and Legislators, that once women get empowered holistically, they risk being abandoned and the largely male dominated institutions challenged. These institutions include the family, work, government and even extends to global politics. Denying women their right to matrimonial property is one way to ensure that the status quo is upheld. In this Chapter I will rely on [1] The Man of Law and Feminist Theory, [2] The Labour Theory and [3] Globalization of thought to discuss the emergence and impact of western philosophy such as gold- digging in the Kenyan society. 

3.1. The Man of Law and Feminist Theory 

Susan Moller Okin, an American Political Scientist writes, criticizing Hobbes and Locke‘s basis of the social contract theory in her volume of ‗Women in Western Political Thought,‘ that the person they had in mind all along in developing their notions of citizenship and civic personhood is not an abstract, un-gendered individual, as has usually been contended, but a man acting on behalf of a family.[66]

Hobbes grounded his entire theory of politics on the notion that we are all equal, and he explicitly included women in this view. At the same time, he sought to justify the actual inequality of the sexes and in particular, the rule of families by the fathers, by maintaining that men were the founders of nations and therefore should assume a dominant position. [67]

There is clearly something lacking in Hobbe‘s reasoning, for his explanation does not answer the problematic question of how just half of a race of people, in which all of whom are equal, in their concerted efforts in establishing a commonwealth have dominion over the other half of society. Having accepted, without further justification or explanation, that the family is a patriarchal institution, Hobbes simply proceeds with his theorizing on the equal right of all.‖[68]

Locke finds himself in a similar dilemma according to Okin. When putting this case for the freedom of individuals from interference from the State, he wishes to treat the sexes as equals. Ultimately, however, he reneges on his commitment to the equal rights of women by maintaining that there is indeed ‗a Foundation in Nature‘ for the subordination of wives by husbands. When husband and wife are in conflict, ‗the Rule … naturally falls to the Man‘s share, as the abler and the stronger‘.

Again the husband-father is invoked as the holder of rights: he decides the fate of the family and represents it in the public sphere; as with ‗Hobbes, the fundamental subject of political analysis becomes the man at the head of a family in which women are clearly inferiors. 

From Okin‘s critique of Hobbe‘s and Locke‘s social contract theory, it is evident to see that women not being given a share of their matrimonial property in a 50:50 way would not be an alarming thing as the social contract was created for male subjects between male subjects. The situation was therefore unequal from the beginning, why then would the man of law allow the woman into his playing field? I see no answer to this question as he is always going to be as Okin put it, the abler, the stronger'. 

Another feminist who has commented on the sexist paradox inherent in the story of the social contract is the political theorist Carole Pateman (1988). She too observes that, at one and the same time, the foundation of theorists of the social contract sought to secure the equal rights and freedoms of all while implicitly assigning a subordinate status to women. [69] Axiomatic to the theorists of the social contract was that men should enjoy ‗the natural ―superiority of their sex‖‘ and when women married it was considered only natural that they thereby agreed to subjection to their husbands. With the formation of the social contract, this natural state of male dominance was simply carried over through the marriage contract. That is to say, both before and after the social contract, it was assumed that men would exercise sexual rights over an obedient woman.

To writers such as Okin and Pateman, the function of women in the vision of society would appear to be the enablement of the legal subject, who is implicitly assumed to be a man. Woman‘s task is to enable the legal man: she makes it possible for him to spring forth into the public sphere, fully nurtured, full-grown, emotionally nourished, and unencumbered by children, but with the means, (that is, herself) to reproduce and care for them. Woman‘s role in the story of the social contract is to make of men the free and equal beings envisaged by the 

The reality of the inequality of the sexes, both denied and yet justified by Hobbes and Locke, was reflected and countenanced by the law of the day. Indeed until well into the nineteenth century, married women were not regarded as persons in law with civil rights. William Blackstone, writing in the eighteenth century, was pithily eloquent on the legal position of the wife. He voiced that by marriage, the husband and 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 … 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 coverture. 

In this statement we are told just who the law took to be the legal person: it was the husband protector who subsumed his wife‘s being into his own for the purposes of the law. Through the doctrine of coverture he was said to cover her existence and she, in effect, disappeared. Her role was to be invisible and within the family. She was regarded as 'domestic' and 'care-giver' and not a free person. The autonomy of the individual, so central to the vision of society was explicitly reserved for the male.

There were several important consequences of the doctrine for married women. For starters, they were unable to possess property. Upon marriage, their land passed into the possession of the husband and they could deal with it only with his consent. Also under the doctrine, a married woman was prevented from seeking redress for any legal grievance without the concurrence of her husband. By contrast, the benefits of coverture to the husband could be considerable in that he personally was entitled to the full income from his wife‘s land and received the whole of her personal property, including her earnings, as an absolute gift. Virtually all that women retained in their own right was their jewellery and their beds.

The feminist‘s evaluation of the fallacy of equality in law as explained above is an explanation of what exists in law as a fundamental problem. This problem cuts across almost all sectors of the law, from land and property ownership, to representation in parliament et al. The problem is that the law is male and thus its interpretation of the reality is based on the male perspective described supra; whereas women want a 50:50 share of matrimonial property, the male participants, such as legislators and judges, are keen on ensuring control. As it goes without saying, once women are empowered economically through inclusion in policy making and land and property ownership, they will attain wings of independence from the male 'protection' something that the man of law does not want. 

3.2. The Labour Theory 

John Locke in Chapter V of the Second Treatise develops a theory termed The Labor theory of value. In this Chapter, Locke presents his famous justification for private ownership of goods and land on the basis of the effort or Labour which individuals expend to produce goods of value to human beings. In the state of nature before governments had come into existence, men all had common access to the earth and the fruits which God had provided for their use. However, although God had given all men an equal right to use the earth‘s resources, natural law also dictated that each man had a natural right to self-ownership which, when coupled with his right and duty to survive, permitted him to create private property where none previously existed.[70]

Locke defined labor to include any act of appropriation of natural resources, from the simple act of bending over and picking up acorns which have fallen to the ground, to the launching of a complicated process of production which involves owning the land itself. Any time any human effort, no matter how trivial, is expended in purposeful action, it is defined as labor.

Using Locke‘s theory of property to rationalize the problem, it would seem quite unfair to deny a wife who has ensured the children are washed every day, clothed, food is in the home, or the farm is harvested amongst other labor, the right to her property. The law puts it this way;- where a spouse cannot prove her contribution whether in a monetary or non-monetary way; they would not be entitled to their share of matrimonial property. The question then becomes, how do the courts measure non-financial contribution? Courts do not have a standard way to ascertain that a spouse has given non- financial contribution and inevitably, the husband who mostly has receipt of financial contributions through transactions such as property or land bought, would unsurprisingly be favored by the law, yet the labor inputted by one party in whatever form cannot be seen as more important than that of another and in this case, the wives labor in the home is not being given the status it deserves by the courts. 

3.3. The Impact of Globalization of Thought: The Emergence of Gold Digging in Kenya 

Important to this Chapter is the discussion of the emergence of the 'gold-digging' culture in Kenya. Time and time again Judges including Kiage[71] have alluded to the 50:50 provision of matrimonial property creating a population of ‗gold-diggers‘. Gold-digging has been defined by the Oxford dictionary[72] as a woman who forms relationships with men purely to obtain money or gifts from them. 

The term Gold-digging is usually associated to women but its history largely contradicts this. According to January Moon in her article, the very first Gold-diggers were Men. In historical times when men controlled all of their wives money and received huge dowries upon their marriage, you had groups of men targeting wealthy women in hopes to woo her and to someday cash in on that huge lump sum of money.[73]

Female Gold-digging started around 1848 during the California gold rush era. Men during this era would go out digging for gold, and once they struck it big, they would go into the nearby bars and celebrate by spreading the wealth around. When they got to these bars, beautiful women all dolled up to perfection, dressed in skimpy little outfits, would line up around the bar area, looking ever so available and waiting for the men who stuck it big to roll in. The men dug for the gold, and the women lived off the men and helped them spend it. Giving birth to the most popular term GOLD DIGGER.[74]

The events of the great depression in 1929 did not leave many choices for many unmarried women who were looked upon as burdens in their families. Most women of these times started working in Burlesque clubs to meet rich men. Back in those days‘ people didn't have much money to spare, so if a men was into Burlesque, he was very wealthy. The women would work these clubs until they found a rich man who was willing to take them and who would give them expensive gifts and money in exchange for uninhibited sexual pleasures.[75]

Gold Diggers were more common during this time because casual sex was less popular. Most Gold Diggers of the depression times would take the money that there Fat Cats gave them and would buy food and pay bills for their loved ones. During this era, gold digging was all about survival. Most gold diggers came from childhoods plagued with neglect, betrayal and hurt, so they developed materialism as a defense mechanism against future let downs. Growing up, large percentages were very poor and learned that money was the only way to solve problems.[76]

The discussion above by June Moon, on the emergence of Gold digging is relevant to this discussion of the problem statement; deplorably, the women advocating for an equal share of matrimonial property are being termed as women who have interests to marry only for money. It is clear to this point that when women actually solicit money for sex, the money goes back to support their children or families. Gold-digging is a social phenomenon brought about by bad economic times. Candidly, in our times today, others may argue that some women may marry for material gain and not necessarily because of any ‗difficult economic times‘. As defective as this perspective may be, it is my submission that no human being will opt to endure the difficulties of marriage in their marriages for material gain unless there are no other alternatives or means of survival. 

Historically, it is evident that women have been given secondary status in terms of socioeconomic, socio-political opportunities‘, as nature finds a natural way to fix itself, their suppression led these women to find alternative means of survival; The equation of gold-digging is two way, there cannot be such a culture without the participation of men, it is clear that these men or husbands because of their oppression of these women are to some extent open to their idea of finding love by using material possessions as bait. The argument that giving women an equal share of matrimonial property will give rise to gold-diggers is therefore fundamentally flawed. 

The argument is flawed since it portrays women as ‗money hungry‘ for their personal development or gains when women actually take back their earnings to the families they belong. The argument does not recognize the socio-economic/political inequalities and discrimination women have had to endure. The argument also implies that allowing women an equal share of matrimonial property would encourage women to marry for wealth not taking into consideration that some women come from already wealthy families with huge inheritances, so if anything the wife would in such a situation have much more to lose, making the argument flawed. 

The argument also ignores the recognition of the labor the so called 'gold-digging' wife would be inputting in the growth of the family; Unless the woman marries and kills the husband the next day (which is punishable under criminal law), they do give companionship in the form of conjugal rights, emotional support to the husbands and children and to the welfare of the family generally. The makers of this argument do not recognize the option of divorce and liberty of contract for both parties; if the husband would feel ‗aggrieved‘ by the actions of the money hungry wife, they could quickly seek remedial redress in courts proving cruelty inter alia, ensuring immediate action to this woman. 

The idea that the courts and legislators assert, that by giving women a 50:50 share of matrimonial property will only encourage gold-diggers, therefore does not stand as it premised on a wrong assumption disqualifying many good women and wives who are genuinely in marriages and not for personal gain as it is argued. 

3.4. Conclusion 

From the discussions above on the different theoretical perspectives, it is fair to argue that giving women an equal share of their matrimonial property is not going to encourage a culture of golddigging as is popularly argued. The foundation of this argument which is advanced by legislators and male judges is premised on sexist‘s assumptions that have been demonstrated in the foregoing. The idea is to subordinate the women so that the men can call the shots in the family, judiciary, parliament and all other powerful institutions. 

CHAPTER FOUR: AN EVALUATIVE DISCUSSION OF PNN V ZWN & CASE STUDIES 

FIGHTING THE BATTALION 

The state of the law, as developed by the Kenyan judiciary thus far, projects an image of women as unproductive dependents, rather than equal partners in a marriage relationship. Regardless of the duration of a marriage, a wife must strictly prove her contribution to the assets acquired during the marriage. The attitude is that a wife is an unproductive dependant unless there is strict proof to the contrary.[77]

-Celestine Nyamu - 

4.0. Introduction 

This Chapter is the back bone of this research paper. In this Chapter I will evaluate the recent Court of Appeal decision between PNN as the Appellant and ZWN as the Respondent. Furthermore, it will be an evaluation of Case studies as mentioned in Chapter one Supra and their relevance or contribution to the recent decision on matrimonial property. I hope to demonstrate the discrepancy between the Judges opinion of society and marriage and the reality on the ground. 

4.1. An Evaluative Discussion on the Case of PNN V ZWN [2017] eKLR 

Case review 

4.1.1. Facts & Procedural History 

The matter was filed in the High Court (Nambuye, J) on 22nd April, 2004, long before the promulgation of the Constitution 2010 and the Matrimonial Property Act, 2013. It was not concluded until September 2012 when Judgment was delivered. Aggrieved by the decision finally arrived at, PNN decided to Appeal the case to the Court of Appeal giving rise to the case mentioned Supra decided and judgment given in 2017 

P and Z were married under the African Christian Marriage and Divorce Act, (Cap 151, now repealed) in 1961. At the time of their marriage they were both gainfully employed; P with the Ministry, earning sh. 350 per month, Z earning sh. 270. Subsequently they respectively earned promotions and salary increments until their retirement in 1990 when they continued to earn pensions. The couple was blessed with seven children whom they all educated and brought up to adulthood. They also made sizeable investments in real and moveable property. But all that was before 1987 when the marriage hit the rocks and P left the matrimonial home for several years, returning briefly in 1999 only to leave again in 2001 to cohabit with another woman.[78]

Z asserts that the woman was his mistress with whom they have a son, while P insists she is merely a business partner who had taken care of his mother and should be treated well. For all intents and purpose, the marriage had come to an end and was only valid on paper. 

Z approached the court and sought an order that the properties be apportioned between them as the court deems fit. It was Z‘s case that those properties were acquired jointly during coverture and she had contributed directly and indirectly towards its acquisition and development. P resisted those claims on the basis that he was the registered proprietor of the properties which he solely acquired and developed. He denied voluntarily leaving the home instead blaming Z for harassment and cruelty towards him and his old parents who later died. [79]

No oral evidence was tendered in the suit before the High Court, the parties choosing to file affidavits in support of their respective cases. Z filed ten lengthy affidavits and submissions through her learned counsel and P also filed lengthy affidavits of his own and written submissions. In a lengthy but analytical judgment Nambuye J evaluated the evidence on the acquisition of each of the disputed properties, considered and applied the constitution and other relevant international instruments ratified by Kenya and made findings of the fact before issuing the final declarations and orders which may be summarized as :- 

1. The property listed as “Bahati/ Kabatini LR.NO. and with shop developments therein is not matrimonial property. 

2. Property number Nyandarua/GilgilWest/ (tumaini farm) approximately 20 ha is matrimonial property and is shared equally between ZWN and PNN.

3. Z who has been residing on this property will retain the portion where the matrimonial house is whereas P is to retain all other developments on the portion adjudged to be his half share 

4. Property known as LR.NO. Naironi/Block (Donholm property) is matrimonial property. It is to be valued and then sold, and the proceeds be shared out equally between Z and P. In the alternative, either Z or P is at liberty to buy out the share entitlement of the other should they deem fit to do so. 

5. No orders were made with regard to distribution of the income generated by the Donholm property as there are no audited accounts to prove the same. In the alternative, Z is at liberty to establish the income by way of rental proceeds by way of audited accounts and then seek appropriate orders for half of the said income. 

6. Land parcels number Bahati/Kabatini Block and Bahati/Kabatini Block which are currently registered in the join names of P and one MGN qualify to be adjudged as matrimonial property and Z is entitled to half share beneficial interest in the plot. 

7. Kabatini shall be valued and sold and the proceeds be shared equally between Z and P. In the alternative, P to be at liberty to buy out the beneficial interest of Z in the said property in monetary terms. 

Aggrieved by these orders, P appealed on seven grounds to challenge those findings as follows: 

The judge erred in law and fact by: 

1. Finding and holding that Z had made direct and indirect contribution towards the acquisition of any of the properties in question 

2. Failing to hold and find that Z had not proved her case to the required standard 

3. Shifting the burden of proof from Z to P 

4. Not giving due weight and consideration to P‘s documentary and affidavit evidence and explanation as to how he exclusively acquired each of the properties in question. 

5. Not following or being guided by the Court of Appeal decision in Echaria vs. Echaria [2007] 2 EA 139, especially where it was held that indirect contributions cannot be taken to account for the purpose of considering a spouses contribution in matrimonial property disputes 

6. Holding that Z was entitled to 50 % of the properties registered in P‘s name without firstly determining how much Z had contributed towards the acquisition of the properties, whether directly or indirectly 

7. Relying on the provisions of Article 45 (3) of the Constitution of Kenya, 2010 and other international conventions which were not relevant to the dispute between the parties. 

4.1.2. Issues and Questions 

1. Whether the learned Judge erred in law and fact by giving the above orders as she did? 

4.1.3. Holding and Conclusions 

The case was decided before three judges, Waki, JA, Azangalala, JA and Kiage, JA. Waki dismissed the Appeal save for the claim relating to Kabatini and Kabatini with reasons discussed in the analysis below; Azangalala and Kiage, JA although with a different judgment agreed with Waki‘s ratio decidendi in his judgment. 

4.2. Case Analysis and Evaluation 

Waki, JA discussed several issues dismissing all of them except the one mentioned Supra. He wrote in his judgment that there were no merits to the complaints as there was ample evidence to prove on a balance of probabilities that Tumaini farm was the first property bought by the couple in 1965 and it became the ‗incubator‘, from where the couple‘s subsequent purchases were nurtured. 

The Appellants main argument is that he is the sole registered proprietor of the properties in dispute and that there was no direct financial contribution from Z towards the purchases or any legal or beneficial interest. Waki, JA in his opinion wrote to the contrary, that Z had proved both direct and indirect contribution towards the purchase and the High Court was right in making that finding. 

It is clear to see the kind of arguments spouses, especially husbands, make upon disputes of such nature. In this case, the husband who is also the Appellant was certain that after all those years living with Z, that she had not made any direct financial contributions towards the purchases and solely because the property was registered in his name then the wife should not have any legal or beneficial interests from the properties. This is the all too familiar situation many Kenyan wives face upon divorce, and many who succumb to their traditional practices or the patriarchal society do not bother putting up a legal battle in the courts, as exemplified through the case of T. Kamuye

Imperative to this discussion is the Judgment of Kiage. In his judgment he writes that he takes cognizance of the marital equality ethos in Article 45 (3) of the constitution but is unpersuaded that the provision commands a 50:50 partitioning of matrimonial property upon the dissolution of a marriage. Kiage states that this provision means that marriage is a partnership of equals and that no spouse would be superior to the other. 

He writes that all forms of gender superiority – whether taking the form of open or subtle chauvinism, misogyny, violence or exploitation have no place. The Constitution meant to recognize that one party is not to ride shod over the rights of the other, one is not to be a mere appendage cowered into silence by the sheer might flowing only from that other‘s gender.[80] Most importantly, Kiage writes that the provision is to give equal voice and is meant to actualize the voluntariness of marriage, so that in decision making the parties are equal in the eyes of the law. 

It is my contention that Kiage‘s, JA words are idealistic and not realistic. Kiage interprets Article 45 (3) of the Constitution in a manner that cannot apply in practice. Stating that Article 45(3)‘s role is to only cure the mischief of inequality of voice in decision making for both spouses is a misconception. This is made clear by M. Abudo‘s story, a story of a similar sequence for many Kenyan wives. 

A mother of eight children, M. Abudo‘s violent husband separated from her and kept all of their property in Kisumu, including vehicles, land, and furniture. She got nothing. Abudo went to live with her mother, but her relatives forced her out when her mother died because they thought a daughter should not inherit. ―I became homeless,‖ she said. ―My relatives set upon me and beat me viciously. I was afraid I‘d die.‖[81] Whereas Kiage believes that it would be unrealistic to presume that marriage per se always engenders a blissful, convivial and idyllic existence of mutual support, true as this may be it would also be impractical to presume that because the law speaks of ‗equality of spouses‘ then both parties in a marriage are equal. Many case studies demonstrate a blatant inequality of spouses either because of the power relationship in a patriarchal society or traditional barriers. 

From a close analysis of Kiage‘s, Judgment, it is clear there exists a disconnect between the law in theory and the law in practice. Equality in books simply does not equate to equality in society. 

The male judges seem to be, by far, separated from the socio-cultural experiences many of these women such as M. Abudo (Supra) have to withstand; instead choosing to focus on how ‗so wasteful, so distant, so-all over the place‘ these women are to provide any warmth in a companionship to say they made a non-monetary contribution to matrimonial property. The practical discrimination these women face is far more important than how ‗useless‘ they may be in a marriage not to deserve a share of their matrimonial property. 

Celestine Nyambu argues that even though courts have gradually looked beyond monetary contribution in assessing a non-title holding spouse‘s beneficial interest, there is still a bias in favour of monetary contribution. From a gender equality perspective, marital property cases in Kenya portray wives as unproductive dependents unless the contrary is proved, which contradicts the reality of women‘s central roles in managing families.[82] Central to the critique of the Judges opinion in this recent judgment, is the proceeding argument that has been put forth. 

The bias against the wife by the judges is not a recent occurrence as the same matter was discussed in the Nderitu case where Kuloba, J stated that '[A wife must prove] that she contributed directly or indirectly to the acquisition of the assets. It is not enough for her [to] simply show that during the period under review she was sitting on the husband's back with her hands in his pockets.’ On Appeal however, the case was remitted for retrial before a different court on the basis of bias against the female gender.[83]

4.6. Conclusion 

Courts must indulge in further research on these family matters rather than giving blanket opinions on very sensitive issues. Specifically, courts must be forward looking in deciding matters of matrimonial property, so that they look at the individual lives of the parties upon divorce and ensure that they are both taken care of than simply arguing ‗gold-digging or wasteful spouse‘ as a reason to deny a wife, especially one who bore children in the marriage, any share of the cake. In this case, the Appellant argues unsurprisingly that his wife should not get a share of any of ‗his‘ properties because none were registered in her name. Celestine Nyamu in response to this notes in her article that this is an injustice that is in fact made sharper by prevailing social norms that tacitly and subtly dictate that the husband is the one who has the socially legitimate authority to exercise family resources, therefore it is a common practice for land to be registered only in the husbands name. This is the case with even land that is purchased through joint efforts for example. The oppression of women to this point is evident. I am not sure however, that courts and Judges have the answer to this problem, because Judges also have wives that they are likely sitting on at home.[84]

.CHAPTER FIVE: CONCLUSIONS AND RECOMMENDATIONS ALL HOPE IS NOT LOST, FOR HER. 

'We are born male and female. Society makes us men and women. All too often, to be a woman is to accept violation and to be a man is to violate—but we have the power to redirect and  change. Any cause, however small, needs a champion.'[85]

-Judy Thongori – 

5.0. Introduction 

This Chapter is the conclusive chapter to this dissertation, and it evaluates the findings of the research questions using the theoretical justifications and cited literature and thereafter assesses the extent to which the study has been successful in demonstrating legitimacy in the hypothesis and objectives posed. Proceeding the short discussion, a conclusion and recommendations are advanced. 

5.1. Interrogation Problem, Questions and Hypothesis 

5.1.1. The problem 

This study identified a problem in matrimonial property;- that the wording of Section 7 of the 

Matrimonial Property Act as read together with Article 45 (3) of the constitution of Kenya 

(Article 45 (3) confers equal rights to spouses before, during and after the marriage, while Section 7 imposes an obligation for a spouse to prove contribution, whether monetary or nonmonetary) renders the latter unconstitutional. It is the case that most wives cannot prove their 'contribution' hence miss out on a share (that was intended to be divided equally) of their matrimonial property making them unequal and unfit competitors in the socio-economic, socio- political spectrum. The law drafters and judges in our courts Advocate for patriarchal and sexist ideals by enabling a status quo that women only marry men 'without anything' themselves and thus should not be entitled to any 50% share of their wealth let alone any share at all. It is a problem that the legislators and implementers of the law are not at par with the law themselves, using it to advance their own policies and bias. 

5.1.2. The Research Questions 

1. Why is contribution a necessary evil in the division of matrimonial property? 

2. How will the division of Matrimonial property in 50/50 encourage gold-diggers and lazy husbands? 

3. Are power relations a huge factor in determining the division on matrimonial property? 

4. How can the curbing of this problem (inequality in property and land laws) reduce the levels of world and African poverty (bearing in mind the feminization of poverty)? 

5.1.3. Hypothesis 

It is hypothesized that despite the provisions in the law speaking to lack of discrimination on the basis of ‗sex‘ women are discriminated against on the basis of their gender by the legislators, society and the judiciary. Secondly, the act of contribution during marriage although including non-monetary contribution - financial contributions are still given much more value by the matrimonial property system hence more likely to favour the husbands to the detriment of the wife. Women experience more discriminations than men before marriage, in marriage and after marriage. Particularly, in regards to contributions, it is difficult to place financial value which accurately equates the emotional support women invest into the family; women are the biggest contributors to the success and function of the family unit. 

5.2. Dissertation Evaluation 

The existing problem is clear, that Article 45(3) the Constitution has given provisions for equality and Section 7 of the Matrimonial Property Act provides for matters of contribution. This may seem 'fair' in a very general way, however when it comes to contribution, it is proved that women are not able to account for their share of contribution, and even at times when they do, because the property is registered in the husbands name, the judges put up their defence for him. The result being a very despondent wife who spent both her time and efforts in the institution of marriage only to receive such little rewards of her labor at the end of the marriage journey. It is the researchers submission that this is not only unconstitutional, as it goes against the core values of the constitution and Article 27 of the constitution, but it is a discriminatory conspiracy targeting the female sex, reinforcing sexist‘s ideals in a heavily patriarchal society. 

The researcher‘s hypotheses‘ were heavily affirmed; that indeed women are still discriminated against on the basis of their sex by society and the drivers of society. This has been noted in Chapter One and the analysis of the PNN v ZWN case, explicitly in Justice Kiage‘s opinion, found in Page 17, Paragraph 6, where he stated that the 50:50 doctrine would convert 'honest people into gold-digging, sponsor-seeking, pleasure-loving, and divorce-hoping brides'. The researcher has shown in Chapter 3 of this paper that these terms such as gold-digging and sponsors are largely directed to women in any given society than men. In essence what Kiage was saying is that women would marry just for money or just to divorce, and in as much as this generalization may have some truth, questions still arise when we consider other wives who do not marry for money but love or those that have built wealth by themselves before a marriage. There is an automatic presumption by the Judge that women are lazy and non-earners thus cannot be given what they are rightfully entitled to through the labor exerted in a marriage. The courts are being run by this presumption which is certainly not a presumption true to all wives as seen in the PNN case; this presenting the heavily patriarchal and unfair nature of men, more so legislators in the Kenyan society. 

The PNN case through the Appellant submission‘s (the husband) was also able to show how women experience far more discrimination than men in the marriage when the husband, though not denying his absence in the home and the wife‘s presence in support of the business, was still adamant when submitting to the court that because the wife‘s name was not on the title documents, she was not entitled to property. This argument is true to many Kenyan wives as shown in the case studies; that because the husband is to control how the home is run then they do not question his authority even when they are chased and have nowhere to go, the husband still wins. 

This research has demonstrated how power relations matter in marriage, answering the third research question in the affirmative. Philip Blumstein and Pepper Schwartz (1983) conducted a study in the United States and found that when men made substantially more income than their wives, they were more likely to exert greater power in financial decision-making when compared with husbands that made about the same income as their wives. [86] In Sub-Saharan Africa, between 36 and 71 percent of women have experienced physical or sexual violence at the hands of a husband or intimate partner.99 

A study conducted in Mexico by R. S. Oropesa (1997) found that wives with higher education were equal to their husbands in family power, felt more satisfaction with their influence in the family, and were less likely to be a victim of domestic violence. The same opinion was expressed by the Member of Parliament in Chapter 2, that it is the men who marry once they have acquired property as if to say that they marry downward to women who do not have any 'wealth' or an equal source of income to exert their male power on them. 

In Africa today, according to the United Nations Development Programme statistics in 2010, six out of ten of the world's poorest people are women. In Mali, Burkina Faso, Benin and Niger in West Africa, between 48 and 65 percent of women live in poverty. Very often, its women who serve as the primary family caretakers and producers of food, and who must shoulder the burden of tilling land, grinding grain, carrying water, and cooking.[87] Seven years later, the statistics have gotten worse. The solution in the researcher‘s opinion is fixing such societal imbalances starting with the family which is the most basic unit of any given society. Women must be given more support and, status and involvement in a society and once that happens, it is without any doubt that World poverty, that is deeply gendered, will reduce. This imbalance is rectified, in the researcher‘s opinion, through the existence of a positive socio-economic and political environment for women which will enable them not only to thrive but will go a long way in bridging existing gaps. 

The answer to the 3rd and 4th research questions is simple according to the researcher, yet it is key to note that different scholars have dissimilar perspectives. The Judgments of Waki and Kiage, JA state that contribution is important to ensure that it is clear that the effort the parties have put into their marriages enable the division of the matrimonial property according to the contributions made throughout the marriage. This is why contribution is said to be a ‗necessary evil‘ by the courts. Theories such as the labor theory could support this reasoning by stating that each spouse should only be entitled to what they have worked for. The problem with the above rational is that the courts do not have a way to accurately measure non-monetary contribution, thus gives it less regard in matrimonial disputes, consequently depriving many women of their share of their matrimonial property. It seems as if the wife‘s ability to work in formal employment and earn is a preferred way of measuring contribution by the court, presumably because it is an easier way of showing contribution than trying to equate child labor, house hold duties etc. 

The feminist theories demonstrate that the law is designed to suit the middle class man, so that whether it‘s the judge or the husband, the woman (wife) must always be in the position of loss or oppression. The law de jure represents equality but de facto will never represent equality unless such ideologies reflected in our jurisprudence is gotten rid of. 

It is the researcher‘s submission from the analysis undertaken that the division of matrimonial property does not and will not at any point encourage gold-diggers. Even at this point, with some of Kenya‘s jurisprudence reflecting chauvinistic ideals, some women are still lazy in their marriages and others are in marriages for capital gain, the overarching question then becomes why the courts believe that the division of wealth equally would be the beginning of golddigging and sponsor-seeking. This mentality, according to the researcher is misguided and is made far worse when it makes its way into the courts. 

5.3. Conclusion and Recommendations 

Women have the capacity to create their own wealth and it is evidenced in the fact that they are in charge of 80% of food production in Kenya and due to this building individual wealth should not prove to be difficult. It is the socio- political and socio-cultural barriers such as inequality in property law that has led women to be categorized as the most poor in the world; second class citizens. It is not without any doubt, that there is certainly a gender problem in matrimonial property. The answer to the question as to whether division of matrimonial property should be 50:50 is still to the researcher, even after this tiresome journey in the pursuit of knowledge scrutiny, and may other authors as discussed in the Chapters above, to the affirmative; as there is no denial that the women are largely disfavored by the drivers of the system. 

As a recommendation, the researcher advances that the judges must ensure to look at the future of both spouses after divorce in the event that Section 7 remains standing. One cannot blindly give a spouse all or a majority of the wealth because of the inability of the other to prove contribution while failing to tackle the question of wealth fare of the children blessed in the marriage and the welfare of the other spouse. It is essential that Judges do not only focus on the past history of the parties but that they also consider each parties future. Legislators and Judges must also ensure to conduct a comparative analysis of different matrimonial property systems possibly in Africa and globally to ensure a robust legislative framework. 

Furthermore, the researcher advocates for parties to resort to the use of Alternative Dispute resolutions to solve some of these issues such as arbitrators or mediators. The belief that many African women carry, especially a majority who are illiterate and in the villages, is that the courts are not a place to take ‗family matters‘. Women should then be introduced and encouraged to resort to other forms of justice. The problem with African customs however, is that it heavily affirms the patriarchal status quo and even in its application is should be sought to be made progressive to keep up with the changing times to ensure true equality. 

This study in its entirety has been able to positively prove the assumptions of the researcher with all evidence pointing against the system and the ideals it preaches; those that are unjust, unequal and discriminatory towards the wife. The legal situation might seem grim for the wife right now, but as the Portuguese once said it, 'ALUTA CONTINUA! 

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41. Alphonce shiundu, ‗MP‘s reject 50-50 share clause in Matrimonial Property Bill‘, the standard (13 November 2014) available at https://www.standardmedia.co.ke/?articleID=2000097517&story_title=mps-passmatrimonial-property-bill-amend-property-sharing-clause&pageNo=3 last accessed July 2017. 

42. Chelanga M, ‗Forget 50/50: Your contribution is Key to sharing property after divorce in Kenya‘ found at,http://ilaw.co.ke/blawg/forget-50-50-your-contribution-is-key-to-sharing-property-after-divorce-inkenya/#.WWtx04iGPIU, accessed July 2017 

43. Sir William‘s Black stones Commentaries on The Laws of England, 1765 – 1769, Book 1 Chapter 15, found at http://lonang.com/library/reference/blackstone-commentaries-law-england/bla-115/#fn36d last accessed July 2017 

44. Women & Poverty in Africa, women Thrive worldwide, http://womenthrive.org/sites/default/files/docs/resources/women_poverty_in_africa_a_look_at_the_numbers_1.

pdf, Last accesed August 2017 

45. Prenuptial agreements: Blessings or a curse?, http://salclaw.co.ke/prenuptial-agreements-blessing-or-curse/ accessed June 23, 2017 

46. Supreme court on the distribution of Property during and at the time of Divorce, 

http://kampalalawmonthly.com/supreme-court-on-the-distribution-of-property-during-and-at-the-time-ofdivorce/ accessed June 12, 2017 

47. Hoareau v Hoareu judegment, http://www.seylii.org/sc/judgment/court-appeal/2013/5, accessed 19 June, 2017 

48. The World Bank IBRD-IDA wdi.worldbank.org/table/2.13 

49. Karen I. Vaughn, Journal of libertarian studies, Vol.2, No 4, pp 311- 326, 

http://austrianeconomics.org/sites/default/files/2_4_3_0.pdf accessed August 2017

50. January Moon, https://hubpages.com/entertainment/History-Of-The-Gold-Digger, accessed August 2017 

51. https://www.inclusivesecurity.org/experts/judy-thongori/ , Last Accessed August 2017 

52. Power - Family relationships, Marital relationships Single Parent, Gender, Stereotypes, Theory, and Definition - 

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53. M. W Githinji, Nyegenye j, Kanyi W, P. Ngunjiri, Gender perspectives on property and inheritance rights – 

Kenya (2002), Tenesi priniting services, Nairobi Kenya 

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54. Kenya Human Rights commission, report on international and domestic law on anti-discrimination in Kenya,http://www.khrc.or.ke/publications/64-an-overview-of-international-and-domestic-law-ondiscrimination-in-kenya-1/file.html accessed September 19, 2016 

[1] Court of Appeal in Civil Appeal No. 127 of 2011 

[2] Musangi P, ‗Women land and property rights in Kenya‘, paper presented at the 2017 World Bank Conference on 

Land and poverty, file:///C:/Users/Hannah/Downloads/05-05-Musangi-453_paper%20(2).pdf, accessed July 2017 

[3] PNN v ZWN [2017] eKLR at Page 17 Para. 6 

[4] Section 6, Matrimonial Property Act NO. 49 of 2013 

[5] Malik Abdul, Customary Law in A Modern Kenya, http://www.theplatform.co.ke/?p=385 last accessed July 2017 

[6] Malik Abdul, Customary Law in A Modern Kenya, http://www.theplatform.co.ke/?p=385 last accessed July 2017 

[7] Ibid 

[8] Malik Abdul, Customary Law in A Modern Kenya, http://www.theplatform.co.ke/?p=385 last accessed July 2017 

[9] MWPA 

[10] Vanessa Mwangi, ‗ How The Matrimonial Property Act can Affect In Case You Get Divorced- HapaKenya‘ (HapaKenya, 2017) http://www.hapakenya.com/2017/03/21/how-the-matrimonial-property-act-can-affect-you-incase-you-get-divorced/ accessed 15 December 2016 11 Ibid 

[11] Ibid 

[12] Kameri-Mbote, Patricia, (2008) ‗Separating the Baby from the Bath Water: Women‘s Rights and the Politics of 

Constitution-Making in Kenya‘, 14(1) East African Journal of Peace and Human Rights, pp.1-45.zx 

[13] Ibid, (N 10) 

[14] Ibid (N 10) 

[15] Matrimonial Property Act of 2013 

[16] Ochineg. J.D, ‗The legal framework governing the division of matrimonial property in Kenya,‘ https://www.academia.edu/11935870/the_legal_framework_governing_division_of_matrimonial_property_in_keny a?auto=download Last accessed June 2016 

[17] [2007] eKLR 

[18] [2002] EA L.R 1EA 

[19] Ibid 

[20] Ibid 

[21] Musangi P, ‗Women land and property rights in Kenya‘, paper presented at the 2017 World Bank Conference on 

Land and poverty, file:///C:/Users/Hannah/Downloads/05-05-Musangi-453_paper%20(2).pdf, accessed July 2017 

[22] The World Bank IBRD-IDA wdi.worldbank.org/table/2.13 

[23] Oyuga M, Ikinu N , ‗Land as matrimonial property in Kenya Demystifying the concept of contribution to acquisition of land as matrimonial property‘ https://www.conftool.com/.../index.../01-10-Oyuga-299_paper.pdf accessed May 5, 2017 

[24] Ibid 

[25] Federation of women lawyers Kenya (FIDA-K) v. The Hon. Attorney General constitutional petition N.O of 2016 

[26] Illustrative cases Kenyan women tell of property rights 

https://www.hrw.org/legacy/campaigns/women/property/cases.htm, Last accessed 14th November 2016 

[27] Ibid 

[28] Ibid 

[29] An appeal [Civil Appeal NO. 128 OF 2014] from the judgment of the High Court of Kenya at Nairobi [Nambuye,J. [as she then was] dated 28th day of September, 2012 

[30] Asman Kamama (Tiaty) during the voting of the amendment in the Matrimonial Property Bill in 2013, Para.11, 

Alphonce Shiundu, ‗MP‘s reject 50-50 clause in the Matrimonial Property 

Bill‘,https://www.standardmedia.co.ke/?articleID=2000097517&story_title=mps-pass-matrimonial-property-billamend-property-sharing-clause&pageNo=3 Last accessed July 2017 

[31] M. W Githinji, Nyegenye j, Kanyi W, P. Ngunjiri, Gender perspectives on property and inheritance rights – Kenya (2002), Chapter one, P.1 

[32] ibid 

[33] Ibid 

[34] A Statute of General application applied in Kenya by virtue of section 3 (1) of the Judicature Act (Cap.8) 

[35] Dividing Matrimonial Property on Divorce: Colonialism, Chauvinism and Modernism in Kenya, Andrew Commins, at 167 

[36] Kang‘ara S, ‗Beyond Bed and Bread: Making the African state through marriage law reform – constitutive and transformative influences of Anglo – American Legal thought‘, at page 2. 

[37] Professor of law Riara Law school, in her article [n 31] supra 

[38] Ibid 

[39] ibid 

[40] Sir William‘s Black stones Commentaries on The Laws of England, 1765 – 1769, Book 1 Chapter 15, found at http://lonang.com/library/reference/blackstone-commentaries-law-england/bla-115/#fn36d last accessed July 2017 

[41] Oyuga M, Ikinu N , ‗Land as matrimonial property in Kenya Demystifying the concept of contribution to acquisition of land as matrimonial property‘ https://www.conftool.com/.../index.../01-10-Oyuga-299_paper.pdf accessed May 5, 2017 

[42] Ibid ( n 31 above) 

[43] National Provincial Bank Vs. Ainsworth (1965)3 WLRI House of Lords 45 [KLR 306] 

[44] Ibid [n 33 above] 

[45] (1991)eKLR 241(C.A)Kenya 

[46] Ibid [n 35 above] 

[47] As cited by Patricia Kameri-Mbote, Progress report on removing discrimination against women in respect of property and inheritance rights, Tools on Improving Women‘s Secure Tenure‟ Series 1,Number 2 (August2006)30 

[48] HCCC No. 1610 of 1995 unreported 

[49] M. W Githinji, Nyegenye j, Kanyi W, P. Ngunjiri, Gender perspectives on property and inheritance rights – Kenya (2002) at page 27 

[50] Ibid 

[51] Ibid 

[52] Ibid [N.O 42 above] 

[53] C.M.N. v. A.W.M., High Court at Nairobi, Environmental & Land Case No. 208 of 2012, in 2013 Lady Justice M. Gitumbi ruled in favour of women‘s equal right to marital property. The husband had made 100% of the monetary contributions to the family home and sought 100% ownership of that home but the judge ruled that the legal provisions in force under the new constitution required the court to apply the principles of equality instead. 

[54] A United Kingdom statute of general application 59 Ibid [n 45 above] 

[55] Matrimonial Property Act, 2013. 61 Ibid [n 48 above] 

[56] Ibid [n 50 Supra] 

[57] Ibid 

[58] The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly 

[59] Article 16(1)(c) The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

[60] Article 16(1)(h) The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

[61] The Third Ordinary Session of the Assembly in Addis Ababa, Ethiopia, from 6-8 July 2004 

[62] Adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, 11 July 2003 

[63] Article 6(j) of the Protocol to the African Charter on Human and Peoples‘ Rights on the Rights of Women in 

Africa 

[64] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171 

[65] Holy Bible of Christ, Ephesians 5:22-23 

[66] Ngaire, N. ‗The Man of Law‘, in Law and the sexes: Explorations in feminist jurisprudence, Sydney; London: Allen & Unwin (1990) pp. 10 – 123 at 100 

[67] Ibid 

[68] Ibid 

[69] Ibid 

[70] Karen I. Vaughn, Journal of libertarian studies, Vol.2, No 4, pp 311- 326, http://austrianeconomics.org/sites/default/files/2_4_3_0.pdf accessed August 2017 

[71] See Chapter one Supra 

[72] https://en.oxforddictionaries.com/definition/gold-digger, last accessed August 2017 

[73] January Moon, https://hubpages.com/entertainment/History-Of-The-Gold-Digger, accessed August 2017 

[74] Ibid 

[75] Ibid 

[76] Ibid 

[77] Celestine –Nyamu Musembi , ‗sitting on her husband‘s back, her hands in his pockets‘. Commentary on Judiciary in marital property cases in Kenya, (2002), University of Washington Law library, HeinOnline. 

[78] PNN v ZWN [2017]eKLR 

[79] Ibid 

[80] PNN V ZWN [2017] eKLR at page 16 

[81] Ibid 

[82] Ibid N.88 

[83] Ibid N. 88 

[84] Celestine –Nyamu Musembi , ‗sitting on her husband‘s back, her hands in his pockets‘. Commentary on Judiciary in marital property cases in Kenya, (2002) Pg. 239 

[85] https://www.inclusivesecurity.org/experts/judy-thongori/ , Last Accessed August 2017 

[86] Power - Family relationships, Marital relationships Single Parent, Gender, Stereotypes, Theory, and Definition - JRank Articles http://family.jrank.org/pages/1316/Power.html#ixzz4rHLn50XM , Last accessed August 2017 99 8 Garcia-Moreno C., et al., WHO Multi-country study on women's health and domestic violence against women: Initial results on prevalence, health outcomes, and women's responses, Geneva: World Health Organization, 2005. 

[87] Respectively: United Nations Development Programme, ―Gender and Poverty Reduction,‖ http://www.undp.org/content/undp/en/home/ourwork/povertyreduction/focus_areas/focus_gender_and_poverty/ ; United Nations Department of Economic and Social Affairs, ―The World‘s Women 2010: Trends and Statistics‖, pg. 160