Who Gets What After Divorce? What Kenyan Courts Are Actually Deciding
- Winnie Tsuma
- 2 days ago
- 3 min read
When marriages break down, one of the biggest questions couples ask is simple:
Who gets the property?
Many people assume that courts automatically divide property 50/50 after divorce. But Kenyan courts have clarified many times that this is not always the case.
The truth is that courts look at who contributed what during the marriage before deciding how property should be shared. Understanding this can save many people from shock, disappointment, or costly legal battles.
The Starting Point: What the Law Says
The main law governing property between spouses is the Matrimonial Property Act, 2013. Under this law, property acquired during marriage is considered matrimonial property, but it does not automatically belong equally to both spouses.
Instead, Section 7 of the Act states that property is shared according to each spouse’s contribution toward acquiring it. Therefore, contribution includes both:
Financial contribution
- Paying for land or a house
- Paying loans or mortgages
- Funding construction or business
Non-financial contribution
- Raising children
- Managing the home
- Running family farms or businesses
- Supporting the other spouse’s work
In simple terms: money is not the only thing that counts, and recent court decisions show how judges are actually applying this rule.
When a Wife Received 50% Because of Her Contribution
A good example is: LWN v JKN
Read the case:
In this case, the couple married in 1995 and acquired several parcels of land during the marriage, mostly registered in the husband’s name. The husband argued that he bought the property through his businesses and that his wife was only a housewife.
But the wife testified that she:
worked on the family tea farms
helped manage the farming activities
delivered tea to buying centres
raised the couple’s three children
managed the matrimonial home
The court examined the evidence and found that the income used to acquire the property came from tea farming that both spouses were involved in.
Justice R. Mwongo concluded that the wife made significant non-financial contributions, including farm work, childcare and managing the family property. Because the property had been acquired during the marriage and both spouses contributed in different ways, the court ordered that the matrimonial property be divided 50/50.
This case shows that non-financial work, especially in family farms or businesses, can justify an equal share of property.
When the Court Divided Property 70/30
Courts do not always divide property equally. For example: EKM v JDO https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16076/eng%402024-12-19
In this case, the couple disputed ownership of a property in Kisumu that had been acquired during the marriage.
The court agreed that the property was matrimonial property because it was acquired while the couple was married. However, the judge examined each spouse’s contribution and found that the husband had made the much larger financial contribution to purchasing and developing the property.
The wife had still contributed through:
domestic work
supporting the home
other non-financial contributions.
But because the husband had contributed significantly more money, the court ordered the property to be divided 70% to the husband and 30% to the wife. This decision shows that courts try to match the share of property to the level of contribution.
The Reality About Divorce and Property
These cases reveal an important truth: Divorce does not automatically mean 50/50.
Instead:
sometimes courts award 50/50
sometimes 70/30
sometimes other proportions depending on the evidence.
What matters most is what each spouse can prove about their contribution during the marriage.
Written by Winnie Tsuma
Advocate of the High Court
Managing Partner, Tsuma and Associates Advocates.
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