Following the recent Court of Appeal decision in the matter of Resma Commercial Agencies Limited v Ngata (Estate of Leah Wangui Ngata) & Another ([2025] KECA 2214 (KLR), the question of what constitutes matrimonial property has once again taken center stage in legal and public discourse.

In the case, Francis Ngata (hereinafter “Francis”), the registered proprietor of the suit property, secretly sold it to Resma Commercial Agencies Limited (hereinafter “the Purchaser”) during the subsistence of his marriage to Leah Wangui Ngata (hereinafter “Leah”). The couple together with their children had occupied the property as their matrimonial home for seventeen years. Upon learning of the sale, Leah challenged the transaction, contending that the property constituted matrimonial property and, more specifically, a matrimonial home that required her consent prior to its disposal. She further asserted that she had acquired a beneficial interest in the property through her contributions during the marriage and that, consequently, the sale was null and void for want of her spousal consent.

The trial court affirmed her position and found that the property was matrimonial property that required Leah’s consent prior to its disposal and therefore failure to seek her consent rendered the sale void and proceeded to set aside the sale. Aggrieved by that decision, the Purchaser lodged an appeal before the Court of Appeal against the decision.

Before the Court of Appeal, the key issues for determination were whether the property constituted matrimonial property thus vesting beneficial interest on both the spouses and whether spousal consent was required before the property could lawfully be sold.

The Court acknowledged that indeed the property being a matrimonial home acquired during the subsistence of the marriage qualified as matrimonial property under section 6 of the Matrimonial Property Act, 2013. The Court however indicated that mere characterization of property as matrimonial does not confer beneficial interest, and that beneficial ownership must be determined through contribution or improvement to the property and not by mere marital status or occupation of the property as a family home.

It was therefore the Court’s finding that Leah having not adduced sufficient evidence to demonstrate either direct or indirect contribution towards the acquisition or improvement of the property, she could not claim that a beneficial interest had crystallized in her favour capable of defeating the registered proprietor’s title or the rights of a bona fide purchaser for value.

Having found that Leah did not adduce enough evidence to prove acquisition of beneficial interest in the property, the Court indicated that without beneficial interest, the Property remained the sole property of Francis and therefore, her consent to the sale of the property was irrelevant. The Court therefore concluded that the sale of the Property to the Purchaser was valid and proceeded to dismiss the trial court’s decision.

Having read the case, we are of the opinion that this Court of Appeal’s decision raises legitimate concerns and risks exacerbating inequalities in marriage rather that mitigating them.

First, the Court seems to have ignored completely the issue of indirect contribution as provided for under the Matrimonial Property Act, 2013 (the “Act”).  The Act particularly acknowledges that contribution is not limited to direct financial input and can be tangible and intangible to include domestic work, management of the matrimonial home, childcare, companionship, management of family businesses or property, and farm work. These are aspects of contribution that cannot be proved by provision of documents and therefore the Court’s insistence on documentary proof to ascertain beneficial interest imposes an impossible burden and the effect thereof is to leave economically vulnerable spouses exposed, notwithstanding the protection accorded to them in law.

The decision heightens formal evidentiary standards and ignores the lived realities of marriages where economic contributions occur in domestic spaces, small family businesses, and subsistence enterprises where no formal accounts exist. Overreliance on documentary evidence as the only proof of contribution in this case in our opinion ignores social contexts and inadvertently increases gender equality which sits uneasily with the spirit of the Act.

Secondly, on the issue of spousal consent, section 14 of the Act creates a rebuttable presumption that where a property is acquired during subsistence of a marriage and registered in the name of one spouse, then there is a rebuttable presumption that the property is to be held in trust for the other spouse. In this case it is recorded that Leah engaged in poultry and small-scale farming and that income from these activities was consistently applied in part towards household expenses and repayments of loans used to acquire and improve the home. It is our opinion that the contribution herein proved beneficial interest that subsequently created a trust.

The trust therefore constituted an overriding interest of spousal consent protected under section 28 of the Land Registration Act that therefore had to be acquired prior to disposing the property. We therefore take issue with the fact that the Court found that Leah’s spousal consent was irrelevant in the circumstances and upheld the sale.

In conclusion, in as much as the decision in this case underscores the importance of deliberate structuring of property ownership during marriage, we are of the opinion that the decision is problematic and goes against the spirit of equity in marriages as provided for in the Matrimonial Property Act. The decision risks creating a legal disadvantage for women who mostly and historically provide domestic and informal contribution in marriages, and requiring these women to document every proof in what are often informal arrangements is an overly onerous requirement. We note that an appeal against the decision has been lodged at the Supreme Court and we await guidance from the apex court on the matter with finality. In the meantime, married couples should consider joint registration of property where appropriate and documenting contributions to property acquired during marriage in order to mitigate future disputes.