As divorce cases continue to rise in Kenya, legal experts have warned that couples trapped in harsh prenups should not expect the courts to bail them out.
A recent legal advisory by boutique tax and legal advisory firm Tarra Agility Africa highlights that unless fraud, coercion, or manifest injustice is proven, Kenyan courts will enforce prenuptial agreements as binding contracts, no matter how one-sided they appear.
“Prenuptial agreements can offer clarity and protection. They are useful tools for asset management and risk reduction, especially in second marriages, high-net-worth unions, or where one party enters with significant assets or family business interests,” Tarra Agility Africa said in the legal advisory.
“However, they are not bulletproof shields nor flexible safety nets. Once signed, the courts will hold you to your word.”
According to the State of the Judiciary Annual Report 2024, there were 9,315 pending divorce cases across Kenya’s courts- 86 before the High Court and 9,229 before the Magistrates’ Courts.
A prenuptial agreement, or “prenup,” is a contract signed before marriage that sets out how assets will be handled if the union ends.
Prenups are gaining popularity in Kenya among couples seeking to protect family wealth, safeguard business interests, or avoid lengthy legal battles during divorce.
Prenups are Contracts
The legal foundation for prenups lies in Section 6 of the Matrimonial Property Act, 2013. The law permits couples to decide in advance how property will be divided during and after marriage. However, the same law makes it clear that courts can only set aside such agreements in limited circumstances- where fraud, coercion, or manifest injustice is proven. This creates a deliberately high threshold, which informs the judiciary’s reluctance to interfere with freely negotiated contracts.
Case law has consistently reinforced this stance. In DNK v GS [2023], the High Court emphasized that prenups are contractual in nature and thus governed by ordinary principles of contract law. Similarly, in DNK v KM [2021], the court upheld a settlement agreement made during marriage, reiterating that courts are not in the business of rewriting bad bargains. The principle was echoed in earlier rulings such as Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd [2017] and LTI Kisii Safari Inns Ltd v DEG [2011], which underscored that equity does not exist to rescue parties from their own poor decisions.
The courts’ approach was further illustrated in QMAO v DAW [2024], where a respondent sought to nullify a settlement agreement on grounds of coercion. Despite his claims, the court ruled against him, noting that both parties had been represented by senior advocates and had ample time to review the terms. The judgement reinforced that vague allegations of pressure or regret are insufficient, only hard evidence of fraud or duress will convince a court to intervene.
This principle aligns with the burden of proof under Section 107 of the Evidence Act, which requires the party alleging wrongdoing to provide convincing evidence. As the courts noted in the Federation of Women Lawyers (FIDA-Kenya) v Attorney General & Another [2018], prenuptial agreements remain enforceable unless the narrow exceptions of fraud, coercion, or manifest injustice are met.
A harsh or one-sided agreement is not inherently invalid. The landmark case National Bank of Kenya v Pipeplastic Samkolit (2001), made this clear- courts will not undo a bad bargain unless coercion, fraud, or undue influence is proven.
It is also worth noting that prenuptial agreements cease to have effect upon the death of a spouse. In such cases, succession law takes over, and the estate is distributed based on the deceased’s will or the rules of intestacy, regardless of any prenup.
Ultimately, while prenups remain a useful tool for asset and risk management, especially in high-net worth marriages or unions involving significant family wealth, they are far from a safety net. Once signed, they are binding.