Reconciling Echaria v Echaria with Article 45 of the Constitution

Abstract

Examination of inter-spousal or matrimonial property rights, in Courtrooms or in academia, is usually considered as falling under two systems: one for the inherent equal entitlement to the property by the spouses, or, proportionate entitlement as governed by the rules of property law. In emerging legal discourse, it is growing practice to draw a timeline comparing jurisprudence as applicable before the 2010 Constitutional switch, with the jurisprudence emerging out of the new Constitution. Prior to the 2010 Constitution, scanty legislation on matrimonial property rights meant that case law was held with an overriding appeal to filling this immanent gap in the law. The most recent precedent was set in the case of Peter Mburu Echaria v Priscilla Njeri Echaria [2007] eKLR, which set the authority on the separate property system of matrimonial property to govern inter-spousal property matters in Kenya. The 2010 Constitution, over and above its extensive guarantee of gender equality, specifically provides for the equality of the parties to a marriage, and for their entitlement to equal rights during the existence of marriage and even at its dissolution. As alluded to above, this paper is such a comparative analysis: seeking to trace the evolution of matrimonial property laws, as comprehensively captured in the prior authority in Echaria v Echaria. And ends with consideration of the emerging jurisprudence as set with the new Constitution.