[2008] KEHC 3281 (KLR)
The court held that the application to strike out the suit could not be allowed because the suit seeks to declare the personal marital status of the parties, which is a significant issue that should not be determined summarily. There was no evidence before the court regarding the alleged customary marriage, and the...
Source-derived case information.
- Citation
- [2008] KEHC 3281 (KLR)
- Parties
- Plaintiff: Catherine M. Njiru; Defendant: Nelson R. Mugo; Defendant: Jane Gathoni Mwangi; Defendant: Amos Karanja
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 97 of 2006
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Suit
- Outcome
- application dismissed
- Legal Topics
- Marital Status Declaration, Statutory Marriage, Customary Marriage, Striking Out Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Catherine M. Njiru
Plaintiff
Nelson R. Mugo
Defendant
Jane Gathoni Mwangi
Defendant
Amos Karanja
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the suit should be struck out on the basis that a statutory marriage extinguishes any prior customary marriage.
- 2 Whether the issue of marital status should be determined summarily or proceed to full trial.
Ratio Decidendi
The court held that the application to strike out the suit could not be allowed because the suit seeks to declare the personal marital status of the parties, which is a significant issue that should not be determined summarily. There was no evidence before the court regarding the alleged customary marriage, and the matter was not suitable for termination on the basis of affidavits alone. The court emphasized the importance of a full trial where parties can present evidence to prove their respective cases regarding the existence or extinguishment of a customary marriage by a subsequent statutory marriage.
Court Disposition
application dismissed
Orders
- The application to strike out the suit is dismissed.
- Parties should fix the suit for full trial with parties proving their case by evidence.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU HC CIVIL SUIT 97 OF 2006
CATHERINE. M. NJIRU………………………………………PLAINTIFF
VERSUS
NELSON R. MUGO…………………………………….1ST DEFENDANT
JANE GATHONI MWANGI………………………...….2ND DEFENDANT
AMOS KARANJA……………………..........………....3RD DEFENDANT
RULING
The plaint herein was filed on 13/10/2006 seeking declaration against status of marriage.
By application dated 2/10/2007 the applicant seeks to strike out the suit on the grounds that the marriage in dispute is a statutory marriage and therefore the issue of prior customary law marriage is extinguished and become null and void. The application is opposed as per replying affidavit.
It is my view that this suit is important as it seeks to declare personal marital status of the parties.
I therefore do not allow application the same is dismissed. Parties should fix the suit for full trial with parties proving their case by evidence. There is no evidence at the moment of the customary marriage alleged. It is not suitable case to be terminated on affidavits.
Dated this 11th April, 2008.
J. N. KHAMINWA
JUDGE
11/4/2008
Khaminwa – Judge
Solomon – Clerk
Plaintiff- present
Read in open court in her presence.
J. N. KHAMINWA
JUDGE