[2019] KEHC 856 (KLR)

[2019] KEHC 856 (KLR)

The court held that the existence of a mortgage or charge on matrimonial property does not preclude the court from adjudicating disputes regarding ownership and division of such property. The Matrimonial Property Act 2013 expressly contemplates that matrimonial property may be subject to liabilities, and provides...

Source-derived case information.

Citation
[2019] KEHC 856 (KLR)
Parties
Applicant: Edla Atieno Muga; Respondent: Peter Okoth Alin’go
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
5 December 2019
Case Number
Civil Case 50 of 2015
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Outcome
preliminary objection dismissed
Judges
A Ali-Aroni
Legal Topics
Matrimonial Property, Division of Property, Spousal Liabilities, Charged Property
Source Language
english
Family and Children Land and Property Matrimonial Property Division of Property Spousal Liabilities Charged Property

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Parties

Edla Atieno Muga

Applicant

Peter Okoth Alin’go

Respondent

Procedural Posture

Civil Case / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the court can adjudicate on matrimonial property subject to a mortgage before the mortgage is fully settled.
  2. 2 Whether the preliminary objection raised by the respondent is valid in law.

Ratio Decidendi

The court held that the existence of a mortgage or charge on matrimonial property does not preclude the court from adjudicating disputes regarding ownership and division of such property. The Matrimonial Property Act 2013 expressly contemplates that matrimonial property may be subject to liabilities, and provides for the sharing of such liabilities between spouses. The court can declare the respective shares of the parties and order the disposal of the property, with the understanding that any outstanding charge or mortgage must first be settled before the proceeds are distributed. The preliminary objection, being based on the existence of a mortgage, is therefore misplaced and does not...

Court Disposition

preliminary objection dismissed

Orders

  • The preliminary objection is dismissed with costs to the applicant.