[2022] KEHC 10165 (KLR)

EWW v SNK (Matrimonial Cause 2 of 2017) [2022] KEHC 10165 (KLR) (4 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10165 (KLR)

Republic of Kenya

In the High Court at Nakuru

Matrimonial Cause 2 of 2017

TM Matheka, J

July 4, 2022

Between

EWW

Plaintiff

and

SNK

Defendant

Ruling

1. The only issue before me is whether the court has the jurisdiction to hear and determine the plaintiff’s Originating Summons dated 12th April 2017. In that matter the plaintiff seeks the following orders;1. That a declaration be made that parcels of land known as Commercial Plot F–Njoro Township, Nakuru/Rare/Gichobo/xxxx and Plot No. xxxx Lenginet and business known as [Particulars Withheld] situates within Nakuru County together with the buildings and improvements erected thereon are matrimonial properties owned in common by the Plaintiff and the Defendant in shares to be determined by this Honourable Court and are held by either party in trust until the parties respective shares are determined.2. Thata declaration be made that the Plaintiff is entitled to peaceful occupation of the Nakuru/Rare/Gichobo/xxxx without interruption by the Defendant and the Plaintiff is further entitled to protection against the Defendant’s interferences by this court.3. Thata declaration be made that the Plaintiff is entitled to rents and profits obtained from the property known as Commercial Plot F-Njoro Township also known as Njoro Landmark Plaza.4. Thatcosts of this Originating Summons be provided for.

2. The defendant now applicant filed his application dated 2nd September 2021 in which he seeks two (2) prayers;That the matter be dismissed in its entirety and the plaintiff/respondent to bear the costs of the application.

3. His application is based on two (2) grounds;(i)That the Originating Summons dated 12th April 2017 was filed prematurely.(ii)That the suit is an abuse of the court process, is null and void ab initio is accordance with Section 7 of the Matrimonial Property’s Act 2013.

4. That application is brought under Section 3A Civil Procedure Act, Order 17 rule 3 and order 51 rule 1 of the Civil Procedure Rules 2010 and Section 7 of the Matrimonial Property Act 2013.

5. The application is opposed by the plaintiff/respondent vide Replying Affidavit sworn on October 12, 2022.

6. The parties agreed to dispose of the application by way of Written Submissions.

7. The defendant/applicant through his advocates Njeru Nyaga & Co. Advocates, Submissions dated November 30, 2021 relied on the case of MNW and WNM & 3 others[2013] eKLR, and TMW vs FMC [2018] eKLR where the learned judged held that matrimonial property could not be divided between spouses unless the spouses were divorced or their marriage had been otherwise dissolved. That a matter brought for such decision during the subsistence of the marriage could only be dismissed as the court would not have jurisdiction.

8. On her part the plaintiff/respondent through Submissions filed by Waiganjo Mwangi Advocate dated 8th December 2021 conceded that the Originating Summons was filed during the subsistence of the marriage under Section 6, 9 and 17 of the Matrimonial Property Act 2013. That it was clear from the Originating Summons that she was not seeking any decision of the property but was seeking declaratory orders in accordance with Section 17 of the Matrimonial Property Act, 2013. She relied on PNN vs ZWN [2017] eKLR in which the Court of Appeal pointed out that an inquiry could be made under Section 17 of the Married Women Property Act and declarations issued, “the subsistence of the marriage notwithstanding”. The Court of Appeal cited the case Petit vs Petit [1970] AC 777 she also relied on CK vs AGM [2018] eKLR, which also stated that declarations could be made under Section 17 of the Act, during the subsistence of the marriage.

9. I have carefully considered the Application, the Affidavits, the Submissions. The defendants/applicants position is that the Originating Summons was filed prematurely, which the parties were still married and under Section 7 of the Matrimonial Property Act, this court can only dismiss the Originating Summons in its entirety.

10. The question is what is the actual position of the matter?

11. In the first place, a reading of the Originating Summons indicates that it is brought under Sections 6, 7 and 17 of the Matrimonial Property Act and seeks the following;1. That a declaration be made that parcels of land known as Commercial Plot F –Njoro Township, Nakuru/Rare/Gichobo/xxxx and Plot No. xxxx Lenginet and business known as [Particulars Withheld] situates within Nakuru County together with the buildings and improvements erected thereon are matrimonial properties owned in common by the Plaintiff and the Defendant in shares to be determined by this Honourable Court and are held by either party in trust until the parties respective shares are determined.2. That a declaration be made that the Plaintiff is entitled to peaceful occupation of the Nakuru/Rare/Gichobo/xxxx without interruption by the Defendant and the Plaintiff is further entitled to protection against the Defendant’s interferences by this court.3. That a declaration be made that the Plaintiff is entitled to rents and profits obtained from the property known as Commercial Plot F-Njoro Township also known as Njoro Landmark Plaza.4. That costs of this Originating Summons be provided for.

12. As correctly submitted by the defendant/applicant, division of Matrimonial Property can only follow the event of divorce.

13. It is conceded by the plaintiff/respondent that she filed the Originating Summons during the subsistence of the marriage but she did not seek the division of the property, but declarations as clearly provided for by Section 17 of the Matrimonial Property Act, 2013. “S. 17. Action for declaration of rights to property(1)A person may apply to a court for a declaration of rights to any property that is contested between that person and a spouse or a former spouse of the person.(2)An application under subsection (1)—(a)shall be made in accordance with such procedure as may be prescribed;(b)may be made as part of a petition in a matrimonial cause;and(c)may be made notwithstanding that a petition has not been filed under any law relating to matrimonial causes.”

14. This court has found that the declarations under Section 17 can be made during the subsistence of the marriage. Two persuasive decisions,CK vs AGM [2018] eKLR, Achode J, NCK vs GVK [2015] eKLR, Muchelule J, cited by Achode J. Both judges were persuaded that under Section 17 of the Matrimonial Property Act 2013, a spouse can come to court to resolve any question about their beneficial interest in the matrimonial property, whether there is a pending divorce matter or where for whatever reason the spouses can no longer live together, without necessary severing the property.

15. I must agree with this position as it relates to this case, here is a case where the Plaintiff/Respondent came to court seeking to protect her rights in what she stated was matrimonial property, she contended that her spouse had become violent, was acting arbitrarily over the properties and she feared that she stood to suffer prejudice, damage and loss that was capable of monetary compensation.

16. The defendant/applicant in fact, through his counsel then, Gatu Magana & Co. immediately filed a Preliminary Objection dated April 21, 2017to the effect that the court had no jurisdiction to deal with the matter, and sought the dismissal of the Originating Summons.

17. The defendant applicant thereafter filed a detailed Replying Affidavit, sworn on July 25, 2017, in which he averred that he would raise a Preliminary Objection to the entire suit, on the ground of lack of jurisdiction.

18. By a Notice dated July 16, 2018, the defendant applicant filed Notice to Act in Person.

19. Vide a consent dated July 17, 2018, the parties agreed as follows;1)That all assets purchased herein during the subsistence of the marriage including properties subject of the suit comprise matrimonial properties of the parties exclusively.2)That the said matrimonial property shall not be disposed off by any of the parties without written consent of either party.3)That the respondent (defendant/applicant) shall pay to the applicant (plaintiff/respondent) Kshs. 80,000/= per month with effect from August 30, 2018and every other succeeding month, and the applicant shall spend the money for her own maintenance and other needs of the house including, shopping, water and electricity bills.4)Each party to bear its own costs of this suit.

20. This order was adopted by court on July 18, 2018(A. K. Ndung’u J) and the matter was marked as settled.

21. So, what is here for the court to determine? I would say, nothing. The declaratory orders issued by this court property issued by the court as they are issuable under Section 17 of the Matrimonial Property Act 2013. The parties herein entered into a consent which was adopted by this court on 18th July 2018 which order confirmed the declaratory orders as parties agreed that the properties under contest were matrimonial properties, and the status quo was maintained as such.

22. Hence, it is this application that is misconceived and a waste of time. The same is dismissed with costs to the plaintiff/respondent.

23. This file is closed as per the orders of July 18, 2018.

DATED, SIGNED AND DELIVERED VIA EMAIL THIS 4{{^TH} DAY OF JULY, 2022. MUMBUA T. MATHEKAJUDGE.CA EdnaWaiganjo & Co. AdvocatesNjeru, Nyaga & Co. Advocates