The morning of January 11 2023 found Festus Kithinji sitting in his lawyer’s office in Ruiru to close a deal with a land seller. His wife was one of the two persons acting as witnesses in the sale.
“I bought the 50*100 plot along Kangundo Road on Wednesday, January 11 at Sh. 1.95 million,” he says. His lawyer had done due diligence and given the transaction the green light. As they signed the sale agreement, Festus was asked by his lawyer if he would wish for his title deed to be processed as a joint ownership with his wife. “I first took it as a joke and laughed it off,” he says.
But when the lawyer posed the question again, he declared that the title deed should be registered and processed under his name only. This rubbed his wife the wrong way. “She was furious. I could tell she was boiling in anger by the way her facial expression changed,” he says.
On their way home, Festus was accused by his wife of distrusting her, shaming her, and perceiving her as a lesser partner in their marriage.
“I shrugged it off that I was just acting as the family custodian. I told her that it was matrimonial property and she had equal rights to it. But I knew exactly what I was doing,” he says. The 37-year-old banker says that he could sense his wife knew his end game. She has been throwing barbs at him over the last three weeks.
“She has also made attempts to cajole me into enlisting her as a joint owner. But I am not budging. I plan to build my family home on that plot. That title is my pride. It is the very essence of my manhood in this marriage; a representation of my authority and position as the leader of my family. I can’t give that away,” he says.
Richard Kyengo has vowed to never list his spouse as a joint owner in any of the properties he shall acquire in his marriage. “That is one of the biggest mistakes a modern man can make,” he claims.
He says that he has learned the hard way after watching his older brother lose properties he took loans to acquire but listed his wife as a joint owner in a messy divorce settlement.
“My father tried to warn him but my brother thought he was doing it for love,” he says. “We knew it would end badly. She blatantly cheated on him and abused him emotionally. We suspect she battered him too. She ran away multiple times, sometimes for weeks at a time, often leaving their three kids behind. Eventually, she filed for divorce and claimed half of the property he had acquired, two parcels of land and one rental building.”
Vincent Nyamwaro says that his wife has been trying to coerce him to change their family land’s title into her name if at all he truly loves, values and trusts her.
The 40-year-old father of two says that his wife reasons that this is the only way her position in the marriage will be secured. “She says this is a form of insurance for her and our children; that she wouldn’t want to get into property fights with my siblings over land ownership if something such as death were to happen to me or if I were to marry a second wife,” he says.
However, Nyamwaro says that this coercion has turned into nagging and has stirred a lot of distrust towards his wife. “Why would she insist so persistently? It’s not like I am dying tomorrow or planning to marry a second wife!”
Although he might have considered joint property ownership with his wife, Nyamwaro now says he cannot register any of the properties he owns jointly with her because of distrust.
“Every time she throws a fit of rage that she owns nothing in this marriage, my brain immediately flips to incidents of wives who rush to court for divorce or plot to have their husbands killed over matrimonial property,” he says.
Festus, Richard and Nyamwaro join a growing list of men who are shying away from joint property ownership with their wives.
This list is demonstrated by fresh data from the Kenya Demographic Health Survey 2022 that was released by the Kenya National Bureau of Statistics in January 2023.
This data shows that in 2014, only 36 percent of married men with houses owned their homes alone. However, this changed over the past eight years. As at the end of 2022, over half or 51 percent of married men owned their homes alone.
This data further shows that the number of married men who own agricultural land alone jumped from 28 percent nine years ago to the current 41.5 percent. Why is this happening?
The majority of men say that they have resulted in dropping their wives from property ownership as the last line of defense against what they see as an onslaught on manhood and patriarchy.
“We are dropping our wives from home and land ownership because of the uncertainties of the modern marriage and the assertiveness of modern women in pursuing what they have been told are their rights over us,” says Charles Kahugu whose family’s title deed to three acres of land bear his name only.
Kahugu who has been married for the past five years says that he can never be too sure if his marriage will last. “My father’s marriage has lasted for 41 years. I am not sure mine will go beyond the seventh year, leave alone mark the tenth anniversary,” says the 40-year-old.
He adds that the rate at which contemporary marriages are breaking has made men jittery when it comes to having their wives co-own property with them.
Kahugu says that with his sole property ownership, he feels insulated in the event of a divorce.
“If I enjoin my wife in the title deed and we divorce, the courts will order me to split the land 50:50 without regard to how I toiled to acquire it. But if I own it alone, I will have a better fighting chance of remaining as the owner,” he says.
For some men though, owning property alone is simply a form of control, power and authority at home. Salim Mohamed, 36, says that by enlisting his property under his name, he feels validated as the provider of his family.
“I cannot be a provider and the man of the house if I don’t own and control the most fundamental need of the family which is land and the house,” he says.
According to sociologist Nathan Gachoka, the increasing number of men who are choosing to leave their spouses out of property ownership could be a form of reaction to the outcomes of divorce cases and settlements over the last decade.
“Traditionally, patriarchy has held the upper hand in the outcome of separations and divorces. Nowadays, judicial authorities, academic and financial awareness have leveled the playfield for the modern woman,” he says.
“Unlike the traditional woman whose fate was resigned to patriarchy, the modern woman now has capacity to show cause as to why she must get half or even more than half of matrimonial property during divorce.”
Gachoka also points out that men who hear about a divorcing man who has been compelled to share matrimonial property 50:50 will be assumed to be weak, and, or to have exposed himself to a grand set up by giving too much property rights to his spouse.
“Its deficiency notwithstanding, there’s a line of thought among modern men that a modern woman who knows she has an equal share to matrimonial property will not be as submissive and wifely,” he says.
“This raises the urgency by men to limit ownership out of fear that their marriage will start to disintegrate the moment their spouses recognize the sizable assets they might walk away with in the event of divorce.”
At the same time, Suyianka Lempaa, an advocate of the High Court, says that this emerging trend of married men opting to own properties on their own can be attributed to court decisions which have increasingly ruled in favour of equal sharing of property in case of joint ownership.
“With the new Constitution and Matrimonial Property Act, if the property is jointly owned the possibility is that you will divide it equally in case of a difference with your spouse,” Lempaa told a Nation publication recently.
For Moses Mbogo who is an architect and contractor, suspected cases of women having a hand in the death of their husbands because of property is the reason he has chosen to play safe by excluding his spouse from ownership.
“Land and houses are the priciest, secure and most cherished assets that anybody acquires in a lifetime. We have seen women who have been suspected of facilitating their husbands’ deaths so as to end up as beneficiaries,” he says.
“I own a number of assets and the only way for me to protect myself in this lifetime and after death is by excluding my spouse from all title deeds, however much I love her,” he says. Moses owns a family maisonette in Kiambu County and two rental apartments in Nakuru and Eldoret.
This has come as a shift to the old order where men had no problem listing their wives and children as beneficiaries or holding their property in their trust. Some of them attribute this shift to what they see as the commercialization of the marriage unit.
“I chose to exclude her to avoid commercialization and protect my children’s future. If push comes to shove, I will divide my estate and hold it in trust for my children,” says 38-year-old Caleb Kiptoo.
His resolution is based on the estate division plan that allows a parent who owns property to hold it in trust for their children, act as a settlor, a trustee and beneficiary.
According to this plan, Kiptoo will move the property from his name and instead declare it as Caleb Kiptoo, holding in trust for Caleb Kiptoo’s children and Caleb Kiptoo as well. Upon his death, that property will not go to his estate for redistribution, but to the children for whom he holds in trust.
Caleb says that by doing this secretly, he will not be too concerned that his wife is with him for the money or whether she might set their kids against him.
“If you are a man and have given up all your property rights to your wife, be prepared to have a very tough retirement. Your wife will turn on you and most likely your kids will side with her. But if you have control over family wealth, you will be respected and remain relevant,” he says.
According to Sheila Sabaya, an Advocate of the High Court who specializes in family law, it is not illegal for one spouse to register property in their sole name during marriage.
“The law recognizes an adult partner as being a legal person who is separate from their spouse and with separate and distinct freedoms, rights, and responsibilities. Among these rights is the right to acquire and own property,” she says.
“It would, therefore, be against the text, structure and spirit of the Constitution for the institution of marriage to strip a person of (among other rights) this fundamental right to sole ownership of property.”
Sheila explains that this means that even within the institution of marriage, one spouse (for example the man) is at liberty to acquire property and have it registered in their sole name. There is however a catch! This property must not be a matrimonial property.
Sheila explains that matrimonial property includes matrimonial home or homes; household goods and effects in the matrimonial home or homes; or any other immovable and movable property jointly owned and acquired or developed during the subsistence of the marriage.
“Ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition or development, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved,” she says.
She adds that spousal rights over matrimonial property are so critical that Section 28 of the Land Registration Act recognizes it as an overriding interest even though it is not noted on the register of titles.
“This overriding interest makes it mandatory to obtain spousal consent at the time of mortgaging, charging or transferring property,” she says.
Sheila says that if the man registers matrimonial property in their name, he should know that sole ownership is not cast in stone.
For instance, to protect matrimonial property, Section 93 (2) of the Land Registration Act is aligned with the Matrimonial Property Act. Sheila says that this Act provides that: if land is held in the name of one spouse only but the other spouse or spouses contribute by their labour or other means to the productivity, upkeep and improvement of the land, that spouse or those spouses shall be deemed by virtue of that labour to have acquired an interest in that land in the nature of an ownership in common of that land with the spouse in whose name the certificate of ownership or customary certificate of ownership has been registered and the rights gained by contribution of the spouse or spouses shall be recognized in all cases as if they were registered.
There are men who feel that the Supreme Court has vindicated their decision to exclude their spouses from joint property ownership.
This follows claims that the Supreme Court had ruled that matrimonial property would no longer be divided on a 50:50 basis. “It’s a big win for the boy child,” says Tony Ntoyai.
Tony owns a wheat plantation of 14 acres in Narok County. He says that men no longer have to fear losing their property to conniving women who get into marriage for commercial purposes instead of love and a desire for family.
“Days when a wife would drag you through a messy divorce and walk out with half of your property are gone. It’s no longer 50:50,” he says, referencing reports on the Supreme Court ruling delivered in the last week of January 2023 on matrimonial property division.
However, according to Sheila, spousal contribution, as rightly put in the Matrimonial Property Act and buttressed by the Supreme Court of Kenya decision in Petition No. 11 of 2020 (JOO VS MBO) can be direct or indirect.
“Direct contribution can be made through paying part of the purchase price of the matrimonial property or for its development or by Contributing regularly to the monthly payments in the acquisition of such property,” she says.
“Indirect contribution includes domestic work and management of the matrimonial home; companionship; management of family business or property; farm work; Making a substantial financial contribution to the family expenses so as to enable the mortgage installments to be paid, Contributing to the running of and welfare of the home and easing the burden of the spouse paying for the property, and Caring for children and the family at large as the other spouse works to earn money to pay for the property. “
Even where the man has registered his property in his name and left out his spouse, Sheila says that the wife can still block his exclusive rights to disposing of the property as he might wish.
“In instances where one spouse deliberately seeks to leave out his partner while registering property, the disenfranchised spouse has recourse in law. They can do this by registering a Licensee’s interests in the title by way of caveat,” she says.
Sheila adds that if the spouse is apprehensive that the property may be disposed of, she can lodge a Caution, attach the Marriage Certificate and outline her apprehension.
“The spouse may also make an application under section 87 of the Land Registration Act so that the land cannot be dealt with without her being given an opportunity to be heard,” she says.
According to the Kenya Demographic Health Survey 2022:
- 36.1 per cent of married men owned their homes alone.
- 10.6 per cent of married men owned their homes jointly with their spouses.
- 50.8 per cent of married men did not own a home.
- 28.3 per cent of married men owned their land alone.
- 12.2 per cent of married men owned their land jointly with their spouses.
- 55.8 per cent of married men did not own land.
- 51 per cent of married men owned their homes alone.
- 18.4 per cent of married men owned their homes jointly with their spouses.
- 29.9 per cent of married men did not own a home.
- 41.5 per cent of married men owned their land alone.
- 7.6 per cent of married men owned their land jointly with their spouses.
- 46.7 per cent of married men did not own land