[2022] KEHC 16365 (KLR)

DKG v EG (Civil Case E018 of 2021) [2022] KEHC 16365 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16365 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Case E018 of 2021

EM Muriithi, J

December 15, 2022

IN THE MATTER OF SUMMONS FOR DECLARATION OF MATRIMONIAL PROPERTY

IN THE MATTER OF MATRIMONIAL PROPERTY ACT, 2013

IN THE MATTER OF MATRIMONIAL CAUSES ACT, 2014

IN THE MATTER OF THE ARTICLES 45, 28, 27, 40, 19 & 20 OF THE CONSTITUTION

Between

DKG

Plaintiff

and

EG

Defendant

Ruling

1. Application dated May 6, 2022 sought preliminary the review of the court order of April 19, 2022 for the payment of Kshs 30,000/= per month to the plaintiff for her rental requirements in lieu of provisions of accommodation at the matrimonial property beginning May 1, 2022.

2. It was urged that the court had relied on erroneous figure of Kshs 20,000/= as the payment which the defendant filed in lieu provision of accommodation when infact the parties had agreed, and thedefendant had paid Kshs 10,000/=. The applicant also urged that he has been paying for school fees and upkeep of two adoptive children while the respondent lived alone and had no child under her care and custody.

3. The application was opposed by the plaintiff who by replying affidavitof May 23, 2022and contended that the amount of Kshs 30,000/= per month was a small amount relative to the size of the estate of the parties, the income of which was put at over 1,000,000/= per month as which the defendant /applicant allegedly controls.

4. The defendant also urged that the court was functus officio on the issue and the applicant’s application for review is an abuse of the process of the court.

5. To be sure the court has always power to review its orders in terms of order 45 of the Civil Procedure Rulesand Section 80 of the Civil Procedure Act. The question before the court is whether there is an error on the face of the record to warrant the review of the order of the court.

6. The court has considered the application and determined that the order of payment of Kshs 30,000/= per month was not based on the amount that thedefendant/applicant allegedly filed by consent between the parties as alleged that on the court’s assessment of the need for provision for alternative accommodation for theplaintiff, in the meantime and on account, before the final determination of the division of the matrimonial property suit herein. There is, therefore, no error on the face of the record.

7. The court in the ruling of April 19, 2022 held as follows:-“4. The court’s duty is to see that the plaintiff is able to secure suitable accommodation at the town of her residence that is commensurate to her station in life during marriage.5. The court considers further that both parties are interested in an expedited hearing of the suit for the division of the matrimonial property so that the rights of the parties are finally determined.6. Having considered all the circumstance of the case and the respective affidavits of the parties and the submissions by their counsel, the court finds that the sum of Kshs 30,000/= per month meets the needs of the dignity of theplaintiff living alone in Meru town. ”

8. For reasons set out above, the court does not find merit in the application for review dated May 6, 2022and the same is declined. Costs in the cause.

DATED AND DELIVERED ON THIS 15TH DAY OF DECEMBER, 2022. EDWARD M. MURIITHIJUDGEAppearances:Mr. Ngentu Advocate for Defendant/Applicant.Mr. Thangicia Advocate for the Plaintiff/Respondent.