A commentary on the matrimonial property conundrum in Kenya in JOO v MBO

Marvis Ndubi

Abstract

Since the promulgation of the Constitution of Kenya 2010, Kenyan
jurisprudence has tussled with the question of division of matrimonial
property in the instance of divorce. This is due to the conundrum posed
by the meaning of Article 45(3) of the Constitution on equality of spouses
in the realm of matrimonial property. Arguably, the courts, including the
Supreme Court, have failed to put to resolve this conundrum. This is by
dint of the inexistence of any strict formula for the sharing of matrimonial
property during divorce despite the question finding its way to the
Supreme Court of the Republic of Kenya (SCORK). As chance would
have it, SCORK got another grand opportunity to put this question to
rest in the JOO v MBO case. However, this commentary opines that
history repeated itself and the jurisprudential ambiguity in the sharing of
matrimonial property is still with us, alive and well. This paper evaluates
the question of matrimonial property sharing in Kenya in the lens of the
SCORK’s JOO v MBO decision.