The High Court in Nairobi is set to deliver judgment on the case challenging the distribution of matrimonial property in Kenya on 14 May 2018. In the petition, FIDA claims that section 7 of the Matrimonial Property Act (Act) is unconstitutional for being inconsistent with Article 45(3) of the Constitution. Section 7 of the Act allows distribution of matrimonial property at the time of dissolution of marriage based on individual contribution made by each spouse towards the acquisition of the property.
FIDA argued that section 7 of the Act is violates the Constitution on grounds that it promotes inequality contrary to the provision of Article 45(3) of the Constitution. And also that the provision was discriminatory against married women who make non-financial contribution towards the acquisition of matrimonial property, which is difficult to prove.
The Attorney General in response to the petition submitted that the petitioner had failed to demonstrate sufficiently, with concrete evidence, the manner in which section 7 violates fundamental rights and freedoms.
Carolene Kituku, representing ISLA, the amicus curiae submitted that under international and regional treaties, Kenya has a positive obligation to ensure it has a law that safeguards equality in distribution of matrimonial property at dissolution of marriage. In addition she demonstrated to the court the existing inconsistencies in judicial pronouncements in matters involving distribution of matrimonial property. In the circumstances, ISLA asked the Court to grant an appropriate relief in terms of Article 23(3) of the Constitution.
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Court documents:
For more information contact:
Carolene Kituku
Advocate for the Amicus
Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)
4th Floor, Somak Building, Mombasa Road Tel +254202515790;
Cell +254720467396;
Email: ckituku@kelinkenya.org
