https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4005

BNM v BNM (Environment and Land Case E054 of 2025) [2026] KEELC 4005 (KLR) (1 July 2026) (Ruling) Neutral citation: [2026] KEELC 4005 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E054 of 2025 CG Mbogo, J July 1, 2026 Between BNM Plaintiff and BNM Defendant Ruling 1.Before this court is the notice of preliminary objection dated 6th January, 2026 filed by the defendant challenging this suit on the grounds that this honourable court does not have the jurisdiction to hear and determine this matter by dint of the provisions of Section 93 of the Land Registration Act. 2.The preliminary objection was canvassed through written submissions. The defendant filed his written submissions dated 23rd February, 2026. He submitted that this court does not have the jurisdiction to determine the originating summons dated 14th February, 2025 a matrimonial property claim as per Section 93 of the Land Registration Act. 3.The plaintiff filed written submissions dated 14th April, 2026. She submitted that the defendant ought to have abandoned the preliminary objection in HCFCC No. E007 of 2024 or applied for the review of the ruling delivered on 13th February, 2025. The plaintiff submitted that pursuant to Section 13 (1) and (2)(d) of the Environment and Land Court Act, this court has jurisdiction to hear and determine this suit. Further, that Section 93 of the Land Registration Act does not confer jurisdiction but spousal rights to enforce interest in land during the subsistence of the marriage. 4.I have considered the preliminary objection and the written submissions filed by the parties. The issue for determination is whether this court has the jurisdiction to hear and determine this suit. 5.Law, J.A. in Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors (1969) EA 696 stated as follows:-“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point, will dispose of the suit. Examples are an objection to jurisdiction of the court, a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration...” 6.Also, the case of John Musakali vs. Speaker County of Bungoma & 4 others (2015) eKLR, it was held that: -“The position in law is that a preliminary objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the preliminary objection should have the potential to disposing of the suit at that point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable preliminary objection on a point of law.” 7.While I place reliance on the above cited authorities, I am satisfied that the instant objection raises a pure point of law. The plaintiff in this matter filed the originating summons dated 14th February, 2025 seeking the orders that:-1.This honourable court be pleased to issue inhibition orders on the parcels of land being LR no. 1xx8-30xx2 Kamulu, LR no. Tassia/ 11/ 97/ 207/ 5x3 and LR no. Tassia/ 11/97/ 207/ 5x4 in any dealings by the defendant or any other party without the consent of the plaintiff.2.The defendant be constrained from interfering, disposing, alienating and/or dealing with the parcels of land being LR no. 1xx8-30xx2 Kamulu, LR no. Tassia/ 11/ 97/ 207/ 5x3 and LR no. Tassia/ 11/ 97/ 207/ 5x4.3.This honourable court be pleased to issue a determination that the plaintiff has beneficial interests in parcels of land LR no. 1xx8-30xx2 Kamulu, LR no. Tassia/ 11/ 97/ 207/ 5x3 and LR no. Tassia/ 11/ 97/ 207/ 5x4. 8.The application is premised on the grounds that the parties are husband and wife with children. Moreso, the parties have acquired matrimonial property together consisting of a matrimonial home being parcels LR no. 1xx8-30xx2 Kamulu, LR no. Tassia/ 11/ 97/ 207/ 5x3 and LR no. Tassia/ 11/ 97/ 207/ 5x4. 9.The deposition as contained in the application ousts the jurisdiction of this court to hear and determine this suit. Section 93 of the Land Registration Act, Cap 300 provides,“Subject to any written law to the contrary, if a spouse obtains an interest in land during the subsistence of a marriage for the co-ownership and use of both spouses or all spouses, such property shall be deemed to be matrimonial property and shall be dealt with under the Matrimonial Property Act (Cap. 152).” 10.From the above, this court does not have the jurisdiction to hear and determine property deemed matrimonial. While the defendant has sought a dismissal of the suit, it is only fair that this suit is transferred to the court with the requisite jurisdiction. More importantly, and as I have read the ruling delivered by the high court on 13th February 2025, the same does expressly oust the jurisdiction of that court to hear and determine the dispute between the parties. In my view, the filing of the suit under a repealed statute and relying on inapplicable provisions of the Land Registration Act resulted in the court making a finding that it lacked jurisdiction. 11.The notice of preliminary objection dated 6th January 2026 is upheld. This file is hereby transferred to the family division of the high court for hearing and determination. The deputy registrar to ensure compliance with the orders herein. I make no orders as to costs.It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 1ST DAY OF JULY, 2026.HON. MBOGO C.G.JUDGE01/07/2026.In the presence of:Ms. Benson Agunga - Court assistantMr. Ashiruma for the Plaintiff/RespondentMr. Mokua for the Defendant/Applicant