[2023] KEHC 26086 (KLR)

AIS v NM (Originating Summons E002 of 2022) [2023] KEHC 26086 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26086 (KLR)

Republic of Kenya

In the High Court at Garissa

Originating Summons E002 of 2022

JN Onyiego, J

November 17, 2023

IN THE MATTER OF THE MATRIMONIAL ACT, 2013

Between

AIS

Applicant

and

NM

Respondent

Ruling

1. The applicant herein filed an originating summons dated 10. 06. 2022 under sections 2,6,7, 9 and 17 of the Matrimonial Property Act 2013 and all enabling provisions of law seeking the following orders: -i.That this Honourable Court make a declaration that the suit property belongs to the applicant.ii.That this Honourable Court be pleased to grant permanent injunction against the respondent whether by himself, his agents and/or his servants from wasting, damaging, alienating, selling, removing or disposing of property being Plot Registration Number T.91 within Korondile Watiti Road pending hearing and determination of this application.iii.That costs of this application be provided for.iv.That the Honourable Court be pleased to make such further orders as it may deem fair, just and expedient in the circumstances of this case.

2. In response, the respondent filed a notice of preliminary objection dated 12. 07. 2022 citing the following grounds.i.That the Honourable Court lacks jurisdiction to entertain this matter, which despite being disguised as a matrimonial suit, raises issues of plot ownership with the applicant claiming to have bought Plot T91 from the respondent’s father and therefore, the issue for determination is whether the applicant purchased the Plot T91 as claimed given that the applicant does not claim the suit property as a matrimonial property.ii.That given that the applicant does not pray for this Honourable Court to declare the suit property as matrimonial property, the same brings out an indication that this matter is only disguised as a matrimonial property suit while in the real sense, the same raises issues covered under article 162(2)(b) of the constitution of Kenya.iii.That the applicant did not provide any documentation to prove ownership of the suit property save for the purported revenue receipt obtained from the County offices, whose authenticity is questionable. As a result, the ownership of the suit property ought to be entertained by a court of competent jurisdiction.iv.That this court lacks jurisdiction to hear matters relating to land ownership and use as is the case herein.

3. The applicant in response filed her replying affidavit sworn on 01. 08. 2022stating that the preliminary objection did not meet the requisite threshold as the same presents matters of fact and not pure points of law. That the property known as T.91 within Korondile Watiti Road within Wajir County is currently registered in her name and that she has owned the same since the year 2007 when she bought it from the respondent’s father. She stated that indeed, the parties herein were once married but have since divorced and therefore, the respondent’s claim could only fall under Matrimonial Property Act dealing in properties acquired during marriage and not the court under article 162 of the constitution.

4. She stated that the suit property herein falls under section 6 of the Matrimonial Property Act as the same was acquired during the subsistence of her marriage to the respondent and therefore, the issues raised by the respondent can only be dealt with comprehensively at the time of the hearing. In essence, the applicant averred that the forum proposed by the respondent is unable to determine the matter herein as the same is concerned with matrimonial property which falls squarely under the jurisdiction of this Honourable court.

5. The applicant further filed a supplementary affidavit sworn on 09. 12. 2022 wherein it was deponed that in support of her case, she was issued with a certificate of clearance of Plot No T91 in Korondile Town dated 17. 03. 2022 from Wajir County Government.

6. The court directed that the notice of preliminary objection be canvassed by way of written submissions.

7. The applicant through her Advocate Odiya & Associates Advocates filed her submissions dated 14th July 2023 thus submitting that the preliminary objection was not only mischievous but also an abuse of the court process hence meant to delay and derail justice to the applicant and her children. It was submitted that the respondent did not demonstrate that the preliminary objection raises a pure point of law. The applicant relied on the cases of Ahmed Nooram and Another v Rajendra Ratilal Saghani (2020) and Zipporah Njoki Kangara v Rock and Pure Limited & 3others [2021] eKLR to buttress the point that a preliminary objection may only be raised on a pure question of law.

8. It was contended that the respondent relied on facts that must be proved as he made reference to his father as the purported owner of the suit property. It was urged that the respondent did not provide any proof of ownership so as to convince the court that indeed the suit property belonged to his father. In the end, the applicant urged this Honorable Court that the preliminary objection by the respondent did not meet the threshold as is expected and therefore the same ought to be dismissed with costs.

9. The respondent in his submissions conceded that indeed he was previously married to the applicant but the said marriage has since been dissolved. That as a matter of practice, section 6,7 and 13 of the Matrimonial Property Act defines what constitutes a matrimonial property. It was his contention that given that the applicant moved this Honourable Court under section 17(1) of the Matrimonial Act seeking for a declaration of right in reference to the suit property, the same therefore points to the fact that, the contest herein is not between the parties but between the applicant and her father in law, the respondent’s father. He argued that his father did not sell the suit property to the applicant and if the applicant opposed the same, then the same should inform the fact that this court lacks jurisdiction to entertain the matter.

10. He was categorical that should this court proceed to hear this suit on the assumption that the applicant is the owner of the suit land, then the same shall prejudice the respondent together with his siblings. He stated that he was not opposed to subjection of matrimonial law for purposes of distributing what was rightfully acquired and owned during the marriage, but he was opposed to the suit land herein being treated as part of the property owned by the parties during the subsistence of their marriage. In conclusion, he urged this court to allow the preliminary objection.

11. I have considered the application herein, the response and the preliminary objection thereof. The only issue for determination is whether this court has jurisdiction to entertain the suit herein.

12. According to the Black Law Dictionary, a Preliminary Objection is defined as being:“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…”

13. The above legal preposition has been made graphically clear in the now famous case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd. [1969] E.A. 696. Where Lord Charles Newbold P. held that a proper preliminary objection constitutes a pure points of law. The Learned Judge then held that: -“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary objection. A preliminary Objection is in the nature of what used to be a demurer it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought in the exercise of judicial discretion. The improper raising of points by way of Preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”

14. Similarly, in the case of Attorney General & Another v Andrew Mwaura Githinji & another [2016] eKLR it was explicitly extrapolated in a more concise and surgical precision regarding what amounts to the scope, nature and meaning of a Preliminary Objection as follows: -(i)A Preliminary Objection raises a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.(ii)A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and(iii)The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.

15. It is trite law that a preliminary objection can be brought at any time at least before the final conclusion of the case. Ideally, all facts remaining constant, it should be filed at the earliest opportunity of the subsistence of a case, in order to pave way for the smooth management and determination of the main dispute in a matter. See the Supreme Court case in Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3others, Application No. 50 of 2014, [2015] eKLR, where the court held that;“…Thus a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”

16. In the instant case, the respondent contested the jurisdiction of this court claiming that despite being disguised as a matrimonial suit, the suit filed by the applicant raised issues of plot ownership hence a matter for the ELC and not a claim founded on matrimonial property.

17. Courts have time and again held consistently that in litigation, Jurisdiction is everything and without it a court is deemed to be a legless stool hence no valid order can be founded on such proceedings. In the celebrated case of “Owners of Motor Vessel “Lilian S” v- Caltex Oil (Kenya) Limited (1989) IKLR the court underscored the significance of jurisdiction as follows;“Jurisdiction is everything. Without it, a court has no powers to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of the proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion it is without jurisdiction…where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before Judgement is given”.

18. Additionally, still on the same point, in the case of “County Government of Migori v I N B Management IT Consultant Limited (2019) eKLR” whereby court being faced with an objection regarding jurisdiction, analyzed the law and observed as follows: -“10. The jurisdiction point raised by the Respondent herein clearly meets the foregone criteria being a pure point of law. That jurisdiction is everything is a well settled principle in law. My Lordship Ibrahim, JSC in Supreme court of Kenya Civil application No 11 of 2016- “Hon (Lady ) Justice Kalpana H Rawal v Judicial Service Commission and others when in demystifying jurisdiction quoted from the decision in Supreme court of Nigeria supreme case No 11 of 2012- “Ocheja Immanuel Dangamav- Hon. Atoi Aidoko Aliaswan and 4 others where Walter Samuel Nkanu Onnoghen, JSC and expressed himself as follows;-“...it is settled that jurisdiction is the life blood of any adjudication because a court or tribunal without jurisdiction is like an animal without blood, which means it is dead. A decision by a court or tribunal without requisite jurisdiction is a nullity dead on arrival and of no legal effect whatever that is why an issue of jurisdiction is granted and fundamental in adjudication and has to be dealt with first and foremost...”

19. A suit property, in relation to Matrimonial property is defined by Section 6 (1)(c) of the Matrimonial Property Act, 2015 as “any other immovable and movable property jointly owned and acquired during the subsistence of the marriage”.

20. The respondent admitted that indeed, the parties herein were previously married but have since divorced. The issue in contention is whether this court has jurisdiction to entertain the suit herein. It is trite that unless absolutely necessary, courts should exercise extreme caution not to deny litigants an opportunity to be heard by striking out pleadings on account of a Preliminary objection. A perusal of the heading of the pleadings as well as the body herein clearly shows that the suit is brought pursuant to the Matrimonial Property Act Sections 2,6,7 and 17 seeking a declaration that the applicant is the owner of the property in question having bought it exclusively from her father in-law.

21. The sub-strum of the suit is declaration of rights of entitlement of the share of property in question whether 100% or not. Failure to include the word matrimonial property after the word declaration under prayer one in my view is a mere technicality which is curable under Art.159(2)(d) of the constitution or through amendment of the pleadings. Ultimately, that omission cannot support a preliminary objection.

22. Regarding the issue that the plot in question belongs to the respondent’s father, there was no evidence tendered to prove that assertion. In any event, the respondent should bring on board his father as an interested party to defend his interest. Whoever is claiming beneficial interest including the respondent’s purported siblings is at liberty to be enjoined as an interested party upon making relevant application.

23. Since the claim revolves around division of matrimonial property, it is incumbent upon the parties herein to establish that it was obtained during the subsistence of the marriage; that the parties have since divorced; proof of individual party’s contribution if any and the share entitlement. All these are matters of fact which can only be resolved through adduction of evidence and a determination made on merit hence not through a preliminary objection.

24. Under Section 17 of the matrimonial property Act, where a spouse claims beneficial interest on property acquired during coverture but not divorced, a matrimonial court can make a declaration on share-holding but cannot distribute. However, where parties have divorced like in this case, the court can declare their share-holding and distribute the same.

25. Considering that the applicant moved this Honourable court under section 17(1) of the Matrimonial Act seeking for a declaration of right in reference to the suit property and a declaration that she made 100% contribution towards acquisition of the same, it will be upon her to prove that the property was acquired during coverture and that she acquired it solely without the respondent’s contribution. On the other hand, the respondent will be required to prove that the property is not matrimonial property hence not available for division.

26. In view of the above holding, I do not find any merit in the preliminary objection herein as it is challenging matters of facts hence does not meet the threshold of a preliminary objection as under-scored in Mukisa Biscuit case above quoted. Parties shall be given an opportunity to adduce their evidence and a determination made on merit. Accordingly, the same is dismissed, with no order as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT GARISSA THIS 17TH DAY OF NOVEMBER S2023………………..J.N. ONYIEGOJUDGE