LEGAL ALERT
Safeguarding Matrimonial Property Rights: Legal Options Available to Spouses in Kenya
At CM Advocates LLP, we understand the growing complexity surrounding property ownership within marriages and the legal disputes that can arise when matrimonial interests are not adequately secured. The Supreme Court of Kenya’s decision in Petition No. 11 of 2020 – Joseph Ombogi Ogentoto v. Martha Bosibori Ogentoto & Federation of Women Lawyers (FIDA Kenya), [2023] eKLR, emphasizes the importance of spouses taking deliberate, informed steps to protect their interests in matrimonial property.
Overview of Petition No. 11 of 2020 – Joseph Ombogi Ogentoto v. Martha Bosibori Ogentoto
This landmark case involved a dispute over property registered in the name of one spouse but allegedly acquired through joint effort. The Supreme Court upheld a 50:50 division of the property but made it clear that such division must be based on proven contribution—whether financial or non-financial—and not merely the fact of marriage. The Court held that Article 45(3) of the Constitution does not confer automatic proprietary rights. Instead, each case must be assessed based on the parties’ direct and indirect contributions, and equality means fairness, not arithmetic equivalence.
Available Legal Avenues for Protecting Matrimonial Property Rights
One of the key ways spouses can protect their rights is through joint registration of property, either as joint tenants, where both own the property equally and it passes to the surviving spouse upon death, or as tenants in common, where each owns a distinct, possibly unequal, share that can be transferred independently.
Additionally, spouses may seek a court declaration of interest under Section 17 of the Matrimonial Property Act. This enables a spouse to establish their rights over property acquired during the marriage, considering any form of contribution, including domestic work and child care.
Another powerful tool is placing a caveat or caution. Section 68 of the Land Registration Act, 2012 permits any person claiming a right to land to lodge a caution to prevent dealings on the property until the claim is resolved. Moreover, under Section 93(2) of the same Act, property acquired during marriage and registered in one spouse’s name is presumed to be held in trust for both, unless proven otherwise. Furthermore, Section 79(2) of the Land Act, 2012 stipulates that matrimonial property cannot be transferred, leased, charged, or otherwise disposed of without spousal consent, where applicable.
Using Trusts and Family-Owned Investment Vehicles for Structuring Matrimonial Property
Beyond court declarations and cautions, spouses should consider strategic ownership structures that offer better protection, privacy, and succession planning.
One such structure is a family trust, which provides a neutral and protective framework for holding matrimonial property. It is particularly useful when the couple seeks asset protection from third-party claims, seamless intergenerational transfer, ownership privacy, and flexibility to adapt to family dynamics. The trust may hold the matrimonial home and other investments, naming both spouses and their heirs as beneficiaries, thereby removing sole control and safeguarding against risks such as unilateral sale, death, or incapacity.
Another structure is the use of family-owned companies or investment vehicles, particularly for business-related matrimonial property, such as rental or commercial premises. The asset can be transferred into a family company, with shares allocated equitably between spouses and possibly held in trust or nominee structures. This not only protects legal rights but also allows for tax planning and ownership governance through formal shareholding agreements. These can include spousal veto rights, dividend arrangements, and succession provisions in line with the family’s long-term goals.
Procedure for Asserting Matrimonial Property Interests
The Matrimonial Property Rules, 2022 provide a comprehensive framework for spouses or relevant parties—such as former spouses, executors, trustees, or administrators—to file claims. Claims can be brought during marriage, during separation or divorce, or within 12 months after a final divorce decree. Jurisdiction depends on the property’s value and location, with the High Court handling high-value property cases.
Claims are filed by Originating Summons (Form MP1) and must include a sworn affidavit, a list of disputed properties, supporting documents, and a statement of contributions and reliefs sought. The courts may then issue orders for vesting or division, occupation rights, postponement of vesting, land transfers, or monetary compensation.
Why Proactive Action Matters
Failure to formally assert matrimonial property interests can lead to dire consequences, such as financial loss, eviction, or exclusion from ownership—particularly for spouses who contributed in non-monetary ways. Kenyan courts now acknowledge domestic labor, home-making, emotional support, and managing family businesses as valid forms of contribution worthy of legal protection.
Moreover, Section 12(3) of the Matrimonial Property Act prohibits the eviction of a spouse from the matrimonial home except through a court order. Section 93(3) of the Land Registration Act also requires that one spouse must obtain written consent from the other before transacting in matrimonial property. Violations can lead to cancellation of title, damages, or injunctive relief.
The Supreme Court decision in Joseph Ombogi v. Martha Ogentoto confirms that while marriage itself does not create an automatic right to half of the property, it does entitle each spouse to a fair and equitable share based on proven contribution—setting a binding precedent going forward.
CM Advocates LLP: Your Strategic Counsel for Matrimonial and Family Wealth Matters
As Kenya’s leading law firm in Private Wealth, Family Law, and Cross-Border Estate Planning, CM Advocates LLP offers a full suite of advisory and litigation services. Our expertise spans matrimonial property disputes, trust formation, family business structuring, court declarations of beneficial interest, and cross-border estate governance.
We proudly serve high-net-worth individuals, family-owned businesses, and diaspora clients seeking globally compliant, confidential, and strategic legal advice on family wealth.
Need Help Protecting Your Property Rights?
Our specialized legal team provides guidance on:
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Structuring joint ownership;
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Obtaining court declarations of beneficial interest;
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Creating and managing family trusts;
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Lodging and enforcing caveats;
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Establishing asset-holding vehicles for family businesses;
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Mediation, arbitration, and family law litigation.
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CM Advocates LLP – Your Strategic Legal Partner in Family Wealth, Estate Planning, and Matrimonial Property Dispute Resolution – in Kenya and Globally.