Concubines and ‘Side Chicks’ Cannot Get Any Share of Matrimonial Property in Kenya. This is WHY.

Kenya’s stance on matrimonial property is clear: only legally recognized spouses—monogamous or polygamous—have rights to marital assets, not informal partners often referred to colloquially as “concubines” or “side chicks.” These relationships, while socially present, hold no legal weight in matters of matrimonial property division.

Lawyer Danstan Omari recently explained this firmly, stating: “Concubines, those who come to stay, those women kept as side chicks do not qualify to be in the division of matrimonial property.”

1. What Is Matrimonial Property?

Under the Matrimonial Property Act, 2013, matrimonial property includes:

• The matrimonial home(s)
• Household goods and effects
• Other movable or immovable property jointly owned or acquired during marriage

Notably, only those in a legally recognized marriage—monogamous or polygamous-are entitled to this property. Concubines or informal partners have no legal standing, even in customary or informal relationships.

2. The Matrimonial Property Act: Legal Framework

2.1 Ownership and Contribution

The Act vests ownership based on contributions—monetary or indirect (e.g., caregiving)—towards acquisition. Without a valid marriage, no such claim can be recognized.

2.2 Polygamous Marriages

If in a polygamous union:

• Property acquired before subsequent marriages stays between the man and the first wife.
• Property acquired after is shared among the husband and all wives, based on contributions made by each.

Prenuptial or postnuptial agreements can modify these arrangements.

3. Supreme Court Ruling: JOO v MBO (2023)

In this landmark 2023 decision, the Supreme Court reaffirmed:

• Division of property hinges on proven contributions, not just being married.
• Domestic duties or frugality alone don’t guarantee a share unless tied to property acquisition.
• A 50:50 split isn’t automatic—it must reflect fair contribution.

This ruling ensures property division remains equitable and evidence-based, and does not broadly extend rights to informal partners like concubines.

Why ‘Side Chicks’ or Concubines Are Excluded

Informal or extramarital partners:

• They are not legally married, so they lack the essential status required to claim matrimonial property.
• Cannot prove legal contribution, even if they have invested time, money, or emotional labor. Kenyan law doesn’t recognize such contributions without marriage.
• Cannot benefit from prenuptial protections—Agreements and legal presumptions apply only to spouses.

Historically, even cohabiting partners have failed to claim rights when there’s no valid marriage, as seen in POM vs MNK, where the Supreme Court refused to deem long cohabitation equivalent to marriage.

Challenges for Married Partners (Especially Women)

Even legally married spouses face hurdles:

• Proving non-monetary contributions is challenging—courts differ in recognition, especially in rural areas where receipt-based proof is rare. 
• Social stigma, high legal costs, and lack of awareness further skew outcomes.
• Despite progressive laws, enforcement gaps persist, notably in rural and customary contexts.

What Legal Spouses Must Know

1. Marriage is paramount – formalization grants the only pathway to matrimonial property rights.
2. Contributions matter – both monetary and indirect contributions must be demonstrable in court.
3. Protect yourself – employ prenuptial/postnuptial agreements, particularly in polygamous arrangements.
4. Be prepared – document contributions, whether through receipts, testimonies, or bank records.
5. Legal awareness is key – seek counsel early to understand your entitlements and how to build your case.

7. Conclusion

Kenya’s Matrimonial Property framework clearly distinguishes between legal and informal relationships. Only those who are legally married—monogamous or polygamous—can claim a share in matrimonial property, and only based on proven contributions. Concubines, “side chicks”, or cohabiting partners have no legal claim, regardless of emotional or financial investment.

As Lawyer Danstan Omari succinctly puts it, these informal partners “do not qualify to be in the division of matrimonial property.”