[2021] KEHC 1661 (KLR)
The court found that the plaintiff’s claim was brought in her capacity as spouse of the chargor and not on behalf of the deceased’s estate. Therefore, she was not required to obtain letters of administration to challenge the charge over matrimonial property for her own benefit. The preliminary objection, though...
Source-derived case information.
- Citation
- [2021] KEHC 1661 (KLR)
- Parties
- Plaintiff: FGM; Defendant: Bank of Baroda Kenya Limited
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E029 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Judges
- TW Cherere
- Legal Topics
- Matrimonial Property, Spousal Consent, Land Charges, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
FGM
Plaintiff
Bank of Baroda Kenya Limited
Defendant
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiff requires letters of administration to challenge a charge over matrimonial property for her own benefit.
- 2 Whether the preliminary objection raised by the defendant is merited.
Ratio Decidendi
The court found that the plaintiff’s claim was brought in her capacity as spouse of the chargor and not on behalf of the deceased’s estate. Therefore, she was not required to obtain letters of administration to challenge the charge over matrimonial property for her own benefit. The preliminary objection, though raising a pure point of law, was not merited in the circumstances because the suit was not for the benefit of the estate but for the plaintiff’s own interest as a spouse. The authorities cited by the defendant were distinguishable on this basis. Accordingly, the preliminary objection was overruled.
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection is overruled.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
(CORAM: CHERERE-J)
CIVIL APPEAL NO. E029 OF 2021
BETWEEN
FGM.................................................................................................PLAINTIFF
AND
BANK OF BARODA KENYA LIMITED.................................DEFENDANT
RULING
1. Section 79 (3) of the Land Act, Section 12(5) of the Matrimonial Property Act and Section 93 (3) and 4 of the Land Registration Act provide for transactions that require spousal consent and they include charges which is the subject matter of this case.
2. The Plaintiff’s case is that she did not give consent to her late husband DGM to charge LR. NTIMA/IGOKI/9446 which she pleads is matrimonial property and prays for cancellation of the charge among other prayers.
3. Defendant through its counsel Mr. Kiruai has raised a Preliminary Objection on the ground that the Plaintiff has not obtained letters of administration to the estate of her late husband.
4. Plaintiff through her counsel Ms. Kiome urged the court to find letters of administration are unnecessary for the reason that the suit is brought for the benefit of the Plaintiff and not for the benefit of her late husband’s estate.
5. I have considered oral submissions by counsel and the issue in question is whether the P.O is merited.
6. A preliminary objection is a point of law when if taken would dispose of the suit. It is what was formerly called a “demurrer”. The locus classicus on Preliminary Objection is the celebrated case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd [1969] E.A. 696, where Law J.A. stated:
“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
7. Sir Charles Newbold, President stated in the same judgment as follows: -
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
8. A reading of the pleadings discloses that that Plaintiff’s claim against the Defendant is brought on her own behalf as spouse of the chargor and not for the benefit of the estate of the chargor.
9. Whereas there is no dispute that the Defendant has raised a pure point of law, Isaya Masira Momanyiv Daniel Omwoyo & Another [2017] eKLR is distinguishable for the reason that Plaintiff does not require to obtain letters of administration to bring this suit for her own benefit.
10. In the end, I find that the P.O has no merit and it is overruled
DATED AND DATED IN MERU THIS 2ND DAY OF DECEMBER 2021
WAMAE. T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Kinoti
For the Plaintiff - Ms. Kiome for Charles Kariuki & Kiome Advocates
For the Defendant- Mr.Kiruai for Kiautha Arithi & Co Advocates