THE RECEIPT PROBLEM: WHEN INDIRECT CONTRIBUTION MEETS THE COURTROOM

THE RECEIPT PROBLEM: WHEN INDIRECT CONTRIBUTION MEETS THE COURTROOM: Rethinking Matrimonial Property after Court of Appeal decision in Resma Commercial Agencies v Ngattah

BY PATRICIA W. KAHURA
MANAGING PARTNER, WANJIRU KAHURA ADVOCATES

There is a tendency to view the development of law, particularly in areas concerning gender equality and matrimonial property, as a linear progression. Once the law recognizes an injustice, we assume that subsequent jurisprudence will build upon that recognition and progressively expand its protection.

But legal development is not always linear.

A principle may be recognized in one judgment and affirmed in another, while the evidentiary requirements surrounding that principle gradually make it more difficult to invoke in practice. The recent Court of Appeal decision in Resma Commercial Agencies v Ngattah (Suing as the Legal Representative of the Estate of Leah Wangui Ngata (Deceased)) & another, Civil Appeal No. 16 of 2019, [2025] KECA 2214 (KLR), provides an interesting basis for examining precisely that tension.

The majority did not abolish or reject indirect contribution. It recognized that indirect contribution forms part of Kenyan matrimonial property law. However, it emphasized that such contribution must be established through credible and cogent evidence and found the evidence presented insufficient to establish the claimed beneficial interest.

That raises a more fundamental question: if indirect contribution is recognized precisely because contribution within marriage does not always take the form of a financial transaction, what kind of evidence should reasonably be required to prove it?

To understand the significance of Resma, it is necessary to trace how the law arrived at its current position.

In Peter Mburu Echaria v Priscilla Njeri Echaria [2007] eKLR, the Court rejected the proposition that marriage, by itself, automatically entitled one spouse to property registered in the name of the other. A beneficial interest depended upon contribution. Importantly, contribution was not confined simply to money physically paid towards the purchase price. The jurisprudence recognised both direct and indirect financial contribution.

That principle was subsequently placed on a statutory footing through the Matrimonial Property Act, 2013. Section 2 defines contribution to include both monetary and non-monetary contribution. The latter expressly includes domestic work and management of the matrimonial home, childcare, companionship, management of family business or property and farm work. Section 7 provides that ownership of matrimonial property vests in the spouses according to their respective contribution.

This was an important legislative development because Parliament expressly recognized activities that do not ordinarily leave a conventional financial trail.

• Cooking does not produce a receipt.
• Childcare does not produce a bank statement.
• Managing a household does not produce a payslip.
• Farm work undertaken within a family arrangement may not produce an employment contract.

Yet the law expressly says that these activities constitute contribution.

The significance is that marriage may involve an economic partnership in which spouses contribute in fundamentally different ways. One spouse may generate and accumulate formal capital while the other creates the conditions that make that accumulation possible.

The Supreme Court recognized this broader understanding in JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae) [2023] KESC 4 (KLR). The Court recognized that spouses may contribute differently and that one spouse may create an environment enabling the other to have greater resources available for the acquisition of property.

This is the essence of indirect contribution.

A spouse who pays household expenses may enable the other to direct more of his or her income towards acquiring property. A spouse who assumes primary responsibility for childcare may enable the other to work longer hours or pursue income-generating opportunities. A spouse who works in a family business without formal remuneration may contribute to the generation and preservation of family wealth without ever receiving a salary.

Indirect contribution therefore requires the court to look beyond the narrow question of who physically paid for the property.

It is against this jurisprudential background that Resma becomes significant.

The dispute concerned property acquired in 1978 and occupied by Leah Wangui and her husband as their matrimonial home for many years. Leah claimed a beneficial interest in the property based on both direct and indirect contribution.

The majority of the Court of Appeal rejected the claim, finding that the alleged contribution had not been sufficiently established. The Court’s assessment placed considerable weight on the evidentiary deficiencies before it, including the absence of adequate documentary and corroborative evidence.

There is nothing controversial about requiring a party claiming a beneficial interest to prove contribution. Marriage does not automatically create a proprietary interest in every asset registered in the name of one spouse.

The difficulty lies in the nature of the evidence required to establish indirect contribution.

A direct contribution is relatively easy to identify:

“I paid KSh 500,000 towards the purchase price.”

The evidence may be a bank transfer, receipt or other financial record.

An indirect contribution may instead be cumulative and dispersed over many years:

“I paid the household expenses for fifteen years while my spouse used his income to acquire the property.”

The second contribution may not be capable of being reduced to a single transaction.

Consider a spouse who spends years raising children, running a household, undertaking small-scale farming, operating an informal business, paying school fees and household expenses, or assisting in a family enterprise while the other spouse uses formal income to purchase property.

The mortgage payments may produce a clear documentary trail:-salary → bank account → mortgage → title deed.

The other spouse’s contribution may produce no equivalent trail. That does not necessarily mean that no contribution occurred. Indeed, it is precisely this type of economic arrangement that the concept of indirect contribution is intended to recognize.

This is where Resma raises an important jurisprudential tension. The majority did not establish an absolute rule that indirect contribution must always be documented. Rather, it required cogent evidence and found the evidence before it insufficient.

Nevertheless, an evidentiary approach that places significant emphasis on documentary and corroborative evidence creates an important practical question: how does a spouse prove an economic contribution whose very nature is unlikely to generate formal documentation? This concern becomes particularly important when one considers the dissent of Ngugi JA. Ngugi JA took a different view of the evidence and considered that Leah’s economic activities, including poultry and farming, household support and other contributions, were sufficient to establish her beneficial interest. Of particular significance was evidence from the husband himself acknowledging that Leah had undertaken economic activities, including poultry and small-scale farming, and that proceeds from those activities supported the family and loan repayments.

The dissent therefore illustrates a different way of understanding the evidence.

The question was not simply whether Leah had produced a receipt showing that she had paid a particular amount towards the acquisition of the property. It was whether the evidence, viewed in its totality, demonstrated that she had participated in the economic life of the marriage in a manner capable of supporting a beneficial interest.

This difference is important because it demonstrates that matrimonial property cases are not decided in an evidentiary vacuum.

Judges necessarily assess evidence against their understanding of how marriages operate in the real world.

A judge who views economic contribution primarily through the lens of formal transactions may naturally attach greater significance to bank statements, receipts, employment records and other documentary material. A judge who gives greater weight to the economic interdependence of spouses may place more emphasis on the duration of the marriage, household arrangements, childcare, informal economic activity, family businesses, admissions by the parties and the practical circumstances in which property was acquired and maintained.

This does not mean that judges decide cases according to personal preference. The law remains the framework within which the decision must be made. But the application of legal principles to evidence inevitably requires an assessment of human conduct and social reality.

And that reality matters.

The economic circumstances in which many Kenyan marriages take place do not necessarily produce the kind of evidence associated with formal commercial transactions.

Women continue to experience significant disparities in income and participation in formal employment. UN data has estimated that women globally earn approximately 20 per cent less than men on average, with the gap increasing when monthly earnings are considered because of differences in working hours and participation in paid employment. In Kenya, women also remain disproportionately represented in informal employment and unpaid care work.

The statistics are relevant not because they establish that every woman contributes to matrimonial property, but because they illustrate the structural context in which matrimonial contribution occurs.

Where women are more likely to undertake unpaid care work, work informally or earn less than their spouses, the economic arrangement within a marriage may involve one spouse accumulating assets through formally remunerated employment while the other contributes through activities that sustain the household and enable that accumulation.

The disparity is not merely theoretical. The United Nations has reported a substantial gender earnings gap globally, while data on Kenya demonstrates the continuing concentration of women in informal and lower-paid forms of work. Women also carry a disproportionate share of unpaid domestic and care responsibilities.

These realities do not determine the outcome of a matrimonial property dispute. But they are relevant to understanding why indirect contribution may not look like direct financial contribution.

A legal system that expressly recognizes domestic work, childcare, companionship, farm work and management of the matrimonial home as contribution must necessarily confront the fact that such contribution is often economically real but evidentially invisible.

That is perhaps the most important question emerging from Resma.

The law has moved considerably from the position in which matrimonial property rights were approached almost entirely through formal ownership and direct financial contribution. Echaria placed contribution at the centre of the inquiry. The Matrimonial Property Act expressly recognized monetary and non-monetary contribution. JOO further articulated the concept of indirect contribution and the economic interdependence between spouses.

Resma does not erase those developments.

But it demonstrates that recognition in principle and accessibility in practice are not necessarily the same thing.

The challenge for matrimonial property jurisprudence is therefore to maintain the requirement that contribution be proved without inadvertently requiring indirect contribution to resemble direct financial contribution.

The answer cannot be that every act of domestic work automatically creates a proprietary interest. Nor can it be that a spouse must produce a receipt for every act of contribution.

The proper inquiry remains whether, on the evidence as a whole, contribution has been established on a balance of probabilities.

But the evidence must be assessed with an appreciation of what contribution actually looks like within marriage.

A salary leaves a record.

A mortgage leaves a record.

A purchase leaves a record.

But years of childcare, household management, informal economic activity, farm work or support that enables a spouse to acquire and preserve property may not.

Absence of documentary evidence is therefore not necessarily absence of contribution.

The deeper question raised by Resma is whether the evidentiary approach to indirect contribution can remain faithful to the reason the law recognised indirect contribution in the first place.

If the law says that non-monetary contribution counts, the courtroom must be capable of recognising its evidence even where that evidence does not resemble a commercial transaction.

That, perhaps, is where the next stage of matrimonial property jurisprudence lies: not in deciding whether indirect contribution exists, but in developing an evidentiary approach that can realistically identify it.