The International Federation of Female Lawyers (FIDA) Kenya has condemned the recent judgment of court refusing a plea for a change to the laws on how property should be split in divorce cases.
In a suit filed by FIDA Kenya against the Attorney General of Kenya, FIDA Kenya’s contention is that section 7 of the Kenya’s Matrimonial Property Act contravenes the Constitutional provision under Article 45 (30 that stipulates for equal rights in marriage for all parties.
Expressing its displeasure over the ruling of Hon Justice Mativo on the petition, FIDA Kenya in a press statement signed by its Chairperson, Mrs. Josephine Mong’are stated:
“Today is another sad day for Kenyan following a judgment by Hon. Justice Mativo on the petition No. 164B of 2016, FIDA Kenya Vs. Attorney General. The judge has dismissed the case which FIDA Kenya had sought determination on the Constitutionality of Section 7 of the Matrimonial Property Act that provides that parties should show their contribution to matrimonial property acquired. FIDA Kenya’s contention is that the section contravenes the Constitutional provision under Article 45 (30 that stipulates for equal rights in marriage for all parties.”
“Justice Mativo ruled that Section 7 of the Matrimonial Property Act was not unconstitutional since Section 2 of the same Act acknowledges non-monetary contributions in marriage.”
“Further that Article 45 (3) of the constitution did not propound for equal sharing of matrimonial assets upon divorce. Justice Mativo echoed the obiter dictum (by the way) of Justice Kiag’s in (pun Vs Zwu Civil Appeal No. 128 of 2014) where Justice Kiag’s stated that the equality of spouses provided under Article 45 (3) of the Constitution does not apply to equality in matrimonial property.”
“This has been a great fear for FIDA Kenya that the country is being plunged back to the olden days when women were still treated unfairly as regards matrimonial property. Such obiter dictums cannot and should not be allowed to form precedents in Kenya.”
FIDA Kenya is querying why the judge found that liabilities could be shared equally under Section 10 of the Matrimonial Property Act if property cannot be shared equally.
“It is ironical that Justice Mativo however finds that section 10 of the Matrimonial Property Act was proper in that liabilities could be shared equality. He found no discrimination in the said provision.”
“The Matrimonial Property Act as it is, has its limitations, and every year millions of women in Kenya still find themselves fighting to hold onto their property after a divorce or the death of their husbands.”
According to the Chairperson, FIDA Kenya’s legal team is reviewing the judgment with the intention of an appeal.