Supreme Court has quashed the Court of Appeal ruling that allowed couples to get an equal share of the property acquired during marriage in case of a divorce.
In the judgement delivered on Friday, January 27, the court said every partner is only entitled to what he or she contributed during the period of marriage.
"That a party must prove contribution to enable a court to determine the percentage available to it at distribution of matrimonial property and that the test to determine the extent of contribution is one of a case to case basis," the court ruled.
It added: "That the provisions of Article 45(3) on equality do not entitle any court to vary existing proprietary rights of parties but only act as a means of providing for equality at the time of dissolution of marriage with each party being entitled to their fair share of matrimonial property."
Equal distribution of property
The court further said equal distribution of property should be determined by individual case and circumstances.
"That what amounts to a fair and equitable legal formula for the reallocation of matrimonial property rights at dissolution of a marriage and whether the same can be achieved by a fixed means of apportionment at a 50:50 ratio should be done in light of the circumstances of each individual case and is best answered by the finding in Echaria v Echaria [2017] eKLR," the court added.
