The Court of Appeal has dismissed a case by the Federation of Women Lawyers (FIDA-Kenya) challenging the constitutionality of Section 7 of the Matrimonial Property Act, which requires spouses to prove their contribution, monetary or otherwise, before matrimonial property can be divided after divorce.

FIDA had argued that the law is discriminatory against women, as non-monetary contributions such as childcare and homemaking are harder to quantify compared to financial contributions often made by men. They urged the court to declare that property in marriage should be split equally, 50-50, regardless of contribution.

The Attorney General opposed the petition, maintaining that the law recognizes both financial and non-financial input and ensures fairness by distributing property in line with proven effort.

In its judgment, the three-judge bench of Justices Gatembu Kairu and Aggrey Muchelule, delivered following the passing of Justice Fred Ochieng, ruled that Section 7 of the Act does not contradict the constitutional guarantee of equality in marriage.

“Section 7 neither violates nor contradicts Article 45(3) of the Constitution. It dignifies both monetary and non-monetary contributions and ensures equitable sharing at dissolution of marriage,” ruled the Judges.

The judges cited earlier Supreme Court rulings that clarified that equality in marriage does not guarantee an automatic 50-50 split of property but rather a fair division based on evidence of contribution.

The Initiative for Strategic Litigation in Africa (ISLA), admitted as a friend of the court, had supported FIDA’s appeal, warning that women remain disproportionately disadvantaged when their unpaid domestic roles are undervalued.

Despite acknowledging historical injustices against women, the Court of Appeal held that the law already provides for recognition of non-monetary contributions such as domestic work, childcare, companionship, and farm work. It added that courts have the responsibility to fairly assess such contributions during disputes.