[2010] KEHC 2889 (KLR)
The court declined to grant the orders sought because the property in question was registered in joint names and the respective interests of the parties had not yet been determined. Ordering the sale of the property at this stage would be premature and could prejudice the rights of the parties, especially as there...
Source-derived case information.
- Citation
- [2010] KEHC 2889 (KLR)
- Parties
- Applicant: E.A.O; Respondent: D.O.N
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 32 of 2009
- Procedural Posture
- Civil Suit / Ruling on Chamber Summons for Interlocutory Relief
- Outcome
- application dismissed
- Legal Topics
- Matrimonial Property Disputes, Interlocutory Injunctions, Joint Ownership, Pending Divorce Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
E.A.O
Applicant
D.O.N
Respondent
Procedural Posture
Civil Suit / Ruling on Chamber Summons for Interlocutory Relief
Legal Issues
- 1 Whether the court should order the sale of jointly owned matrimonial property before determination of parties' interests.
- 2 Whether proceeds of sale can be deposited in the advocate's account for one party prior to final determination.
- 3 Whether the application for sale is premature given pending substantive proceedings.
Ratio Decidendi
The court declined to grant the orders sought because the property in question was registered in joint names and the respective interests of the parties had not yet been determined. Ordering the sale of the property at this stage would be premature and could prejudice the rights of the parties, especially as there were pending proceedings to determine those interests. Additionally, there was no justification for depositing the proceeds of sale in the advocate's account for one party. The proper course is to expedite the hearing of the main suit to resolve the substantive issues before considering disposal of the disputed asset.
Court Disposition
application dismissed
Orders
- The Chamber Summons dated 28th September, 2009 is dismissed.
- No orders granted as sought in the application.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 32 of 2009
E.A.O…………..….……. PETITIONER
V E R S U S
D.O.N…………..……. RESPONDENT
R U L I N G
Before me is a Chamber Summons dated 28th September, 2009 filed by M/s Sijeny & Company advocates for the petitioner/applicant named as E.A.O. The respondent is named as D.O.N. The application has 6 prayers. It was said to be filed under the Married Women’s Property Act of 1882 and Order XXXIX Rule 1(b), 3 and 9 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (Cap. 21).
The application was filed with a supporting affidavit sworn by the applicant on28th September,2009. It was deposed in the supporting affidavit, inter alia, that the applicant and the respondent were married at Nakuru on 27th April, 1991 under the African Christian Marriage and Divorce Act (Cap. 151), and that they had two issues of the marriage born in 1992 and 1998. It was also deposed that there was a case in the Children’s Court No. [......] as well as a Divorce Cause at Milimani No. [......] pending. It was also deposed that the applicant was a cancer patient and had identified a buyerfor the matrimonial property. It was also deposed that the children need financial assistance or support.
A memorandum of appearance was on 12th November, 2009 filed by M/s A.N. Ndambiri & Company advocates for the respondent. However no response was filed by or on behalf of the respondent.
On the hearing date, only Ms. Sijany for the applicant was present in court, though the date was taken on 12th November, 2009 in the presence of Mr. Ngaira for the respondent.
The application is not opposed. However, I will not grant the prayers sought. I will not do so because firstly, it is clearly stated in the application that the property Kiambaa Muchatha[.....] is registered in joint names. It cannot be prudent for the court to order sale of a property whose interests is subject to be determined by the court, between contending parties. Secondly I find no basis for having the proceeds of the sale being deposited in the bank account of an advocate for one of the parties. In my view, this application is premature. What should happen is the fast racking of the hearing of the main motion herein to determine the interest of the parities before one can talk of disposal of the asset or assets subject of the dispute.
I therefore decline to grant the orders sought. In effect the application is dismissed.
If the applicant wants to have the main motion heard expeditiously, an appropriate certificate of urgency giving the reasons has to be filed for consideration by the court.
It is so ordered.
Dated and delivered at Nairobi this 23rd day of March, 2010.
George Dulu
Judge.