[2017] KEHC 9123 (KLR)
The court found that the petitioner had not fulfilled the essential condition set by both the Court of Appeal and the High Court, namely, that the minors must be provided with adequate alternative accommodation before any sale of the matrimonial property or eviction of the respondent could proceed. The mere...
Source-derived case information.
- Citation
- [2017] KEHC 9123 (KLR)
- Parties
- Applicant: D E N; Respondent: P N N
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Judgment Date
- 23 June 2017
- Case Number
- Civil Suit 20 of 2011
- Procedural Posture
- Civil Suit / Ruling on Application for Eviction and Implementation of Appellate Orders
- Outcome
- application dismissed with costs
- Judges
- DN Musyoka
- Legal Topics
- Matrimonial Property, Eviction Proceedings, Welfare of Minors, Implementation of Appellate Orders
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
D E N
Applicant
P N N
Respondent
Procedural Posture
Civil Suit / Ruling on Application for Eviction and Implementation of Appellate Orders
Legal Issues
- 1 Whether the petitioner is entitled to evict the respondent from the former matrimonial home before securing alternative accommodation for the minors.
- 2 Whether the conditions set by the Court of Appeal regarding the welfare of the minors have been fulfilled.
Ratio Decidendi
The court found that the petitioner had not fulfilled the essential condition set by both the Court of Appeal and the High Court, namely, that the minors must be provided with adequate alternative accommodation before any sale of the matrimonial property or eviction of the respondent could proceed. The mere assertion of having leased a house was insufficient; actual relocation of the minors was required. The welfare of the minors was held to be the overriding consideration, and until their accommodation was secured, no eviction or sale could be sanctioned. Consequently, the application for eviction was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 15th May 2017 for eviction of the respondent is dismissed with costs.
- No eviction or sale of the former matrimonial home shall proceed until the minors are safely accommodated elsewhere.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
CIVIL SUIT NO. 20 OF 2011 (OS)
D E N………………………………….………………...PETITIONER
VERSUS
P N N……………………………..…..……………….RESPONDENT
RULING
1. The Court of Appeal in Civil Appeal No. 226 of 2012, between the petitioner herein and the respondent, gave orders to facilitate disposal by sale of the matrimonial property the subject of this suit, and sent the matter back to the High Court for implementation. One of the observations made by the Court of Appeal was that in disposing of the matrimonial property, and especially the former matrimonial home, the welfare of the minor issues ought to be taken into account.
2. I gave directions herein on 8th September 2016 on the implementation of the Court of Appeal judgment. On the issue of the minors I directed that the sale of the subject property would only be conducted after the parties had either jointly or severally secured adequate alternative accommodation or residence for them.
3. On 15th May 2017, the petitioner lodged an application herein, dated 15th May 2017, in which he sought eviction of the respondent from one of the properties, that is to say House Number [……..] Highview Estate Phase II on LR No. Nairobi Block[…..], which is the former matrimonial home, in conformity with my directions of 8th September 2016. The application was urged orally on 6th June 2017.
4. The petitioner stated that he had made alternative arrangements for accommodation of the minors. It transpired at the hearing that the minors, I am told that one of them has since attained majority, are still living with their mother, the respondent, in the said house. The petitioner asserted that the residence he was availing was to accommodate him and the minors and any of the other issues of the dissolved marriage willing to live with him.
5. It is quite clear to me that the condition attaching to the disposal of the properties, relating to the accommodation of the minors, has not been complied with. The minors still reside at the house sought to be sold. The parties have not procured alternative accommodation for them. It is not enough for the petitioner to state that he has leased a house to accommodate them, it is his obligation to have the minors move out of the subject property and safely into the alternative residence or accommodation before he can begin to initiate sale of the former matrimonial home, leave alone evicting the respondent from it.
6. The two parties have rights to the property in question. The court has sanctioned its sale. However, the welfare of the minors reigns supreme. No eviction can be sanctioned prior to the minors being accommodated elsewhere. The orders sought in the application dated 15th May 2017 are not available for granting. I shall accordingly dismiss the said application with costs.
7. It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI this 23RD DAY OF JUNE, 2017.
W. MUSYOKA
JUDGE