[2017] KEHC 5641 (KLR)
The court held that it was functus officio regarding the subject matter of the suit after delivering its final judgment and making orders for the equal sharing of the matrimonial property. The only applications it could entertain post-judgment were those strictly related to the execution of its orders. The...
Source-derived case information.
- Citation
- [2017] KEHC 5641 (KLR)
- Parties
- Plaintiff: C A O; Defendant: W B O
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 12 of 2012
- Procedural Posture
- Civil Suit / Post Judgment Application
- Outcome
- application dismissed with costs
- Judges
- DN Musyoka
- Legal Topics
- Matrimonial Property, Enforcement of Judgment, Post Judgment Applications
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
C A O
Plaintiff
W B O
Defendant
Procedural Posture
Civil Suit / Post Judgment Application
Legal Issues
- 1 Whether the court can grant orders allowing the plaintiff to collect income generated by the matrimonial property after final judgment has been delivered.
- 2 Whether the court retains jurisdiction to entertain applications unrelated to execution of its final judgment.
Ratio Decidendi
The court held that it was functus officio regarding the subject matter of the suit after delivering its final judgment and making orders for the equal sharing of the matrimonial property. The only applications it could entertain post-judgment were those strictly related to the execution of its orders. The plaintiff's application to collect income generated by the property was deemed to be outside the scope of execution and introduced a new substantive issue, which could only be pursued in a fresh suit. Consequently, the application was dismissed as the court lacked jurisdiction to grant the orders sought.
Court Disposition
application dismissed with costs
Orders
- The application dated 16th December 2015 is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 12 OF 2012 (OS)
C A O........................................PLAINTIFF
VERSUS
W B O...................................DEFENDANT
RULING
1. On 8th February 2015 I delivered a judgment where I ordered that the property that I had declared to be matrimonial property be shared equally between the plaintiff and the defendant.
2. The plaintiff has come back to court with an application dated 16th December 2015. She seeks orders that she be permitted to collect the income generated by the property the subject of the judgment of 8th February 2015. She expresses her frustration with having the judgment enforced.
3. There is a reply to the application by the defendant, and a rejoinder by the plaintiff.
4. The court herein made final orders on 8th February 2015. After apportioning the property as between the parties, the court granted them a timeline to facilitate implementation of the order, failing which the property was to be sold and the proceeds shared equally between them. The Deputy Registrar was to sign the necessary documents to give effect to the decree.
5. The application now before me seeks orders that are way out of what was sought in the suit. The court is effectively functus officio, so far as the subject of the suit is concerned. The only matters that the court can entertain with regard to the suit are post-judgment applications related to execution of the judgment. What is sought herein is far from that. It is a totally unrelated matter that can only be pursued in a fresh suit. .
6. I am unable to grant the orders sought for the reasons given above. The application dated 16th December 2015 is for dismissal and I hereby dismiss the same with costs.
DATED, SIGNED and DELIVERED at NAIROBI this 12TH DAY OF MAY, 2017.
W. MUSYOKA
JUDGE