[2022] KEHC 17189 (KLR)

FZA v RB (Matrimonial Cause E001 of 2020) [2022] KEHC 17189 (KLR) (9 November 2022) (Ruling)

Neutral citation: [2022] KEHC 17189 (KLR)

Republic of Kenya

In the High Court at Malindi

Matrimonial Cause E001 of 2020

SM Githinji, J

November 9, 2022

Between

FZA

Plaintiff

and

RB

Respondent

Ruling

1. This Ruling is in respect of a Notice of Preliminary Objection by the Respondent dated April 12, 2022. The Preliminary Objection is brought on the following grounds;i.That the High Court lacks Jurisdiction to hear this matter.ii.That the suit has been filed within the matrimonial property Act 2013, where the existence of marriage relationship is fundamental.iii.That the status of the marriage between the parties depends on the court’s finding to whether there is such marriage.iv.That the property in question is not matrimonial property.v.That the suit offends section 7 of the matrimonial property Act, 2013. vi.That there exists prenuptial agreement.vii.That there is fraud and forgery advanced by the Plaintiff in respect to the subject matter herein.

2. The Preliminary Objection was canvassed by way of written submissions with the Applicant filing his submissions on the May 24, 2022 through the firm of Julius Nyakianga & Company Advocates.

3. Counsel submitted that the case of Mukisa Biscuit Company vs West End Distributors Limited (1969) EA 696 sets out the nature of a Preliminary Objection. According to him, the marriage between the Plaintiff and the Respondent is neither dissolved nor are they divorced since there is a pending Divorce Cause No 7 of 2022 at the Chief Magistrate’s Court at Malindi that was commenced by the Plaintiff and thus the prayers that the Plaintiff is seeking of her keeping the matrimonial home in her application offends section 7 of the Act since the court can only entertain division of matrimonial property between parties upon dissolution of marriage or divorce.

4. He relied on the case of TMW vs FMC (2018) eKLR where the court expressed the opinion that in absence of divorce or legal separation proceedings, the court cannot be moved to determine the question of distribution of matrimonial property. It is his submission that this court be guided by the holding in the above case and declare that the property herein cannot be subjected to distribution without proof of divorce.

5. The Respondent on the other hand filed submissions on the September 8, 2022. Counsel submitted that in respect of the grounds raised in the subject Preliminary Objection on whether or not a marriage relationship exists between the parties and/or that the property in question is not a matrimonial property as defined under the Act, is a question of fact for which parties would have to adduce documentary evidence and as such is not a pure point of the law to form the basis of a valid Preliminary Objection.

6. He also submitted that notwithstanding the other 4 prayers, the principal prayer sought by the Plaintiff is a declaration that the two properties form part of matrimonial property which orders may be validly sought and granted under Section 17 of thematrimonial Properties Act. Counsel relied on the Court of Appeal Decision in Civil Appeal No 61 of 2019 betweenAKK and PKW where the Court of Appeal held that Section 17 enables a spouse, subsistence of a marriage notwithstanding, to make an application for declaratory orders and that, that application may be made as part of a petition in a matrimonial cause and similarly, the divorce cause does not prevent a party from bringing an action for declaration of rights to property in the High Court under Section 17 of the Act.Analysis and Determination

7. A preliminary objection can only be raised on a pure point of law and to discern such a point of law, the court has to be satisfied that there is no contest as to the facts.

8. For determination is whether the Preliminary Objection dated April 12, 2022 has merit. The Respondent/ Applicant argues that under Section 7 of the Matrimonial Property Act, the marriage between the Plaintiff and the Respondent is neither dissolved and nor are they divorced since there is a pending Divorce Cause No 7 of 2022 at the Chief Magistrate’s Court at Malindi and thus the prayers being sought of her keeping the matrimonial home in her application offends section 7 of the Act since Section 7 can only be applied in situations of division of matrimonial property.

9. The Respondent on the other hand argues that Section 17 of the same Act legally confers to this Honourable Court jurisdiction to determine by way of declaration as to the rights to any property that is contested between the parties notwithstanding the subsistence of a marriage.

10. Section 7 provides that ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.

11. The procedure for application is provided under Section 17 which provides that:Action for declaration of rights to property; -1A 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.2An application under subsection (1)—ashall be made in accordance with such procedure as may be prescribed;bmay be made as part of a petition in a matrimonial cause; andcmay be made notwithstanding that a petition has not been filed under any law relating to matrimonial causes.

12. I am guided by the caseAKK v PKW (2020) eKLR where the Court of Appeal overturned a ruling on a preliminary objection where the respondent had challenged the Originating Summons application brought by the appellant for determination of matrimonial property on the grounds that a divorce had not been concluded thus the High Court lacked jurisdiction to determine the matrimonial property. The Court of Appeal held that; -“…. relying on Section 17 of the Act the court is not limited in respect to the declaration of rights of a spouse’s interest in matrimonial property. A plain reading of Section 17 enables a spouse, subsistence of a marriage notwithstanding, to make an application for declaratory orders. It further states that an application may be made as part of a petition in a matrimonial cause and notwithstanding that a petition has not been filed under any law relating to matrimonial causes. It is our opinion that the divorce cause does not prevent a party from bringing an action for declaration of rights to property in the High Court under Section 17 of the Act.”

13. This Court’s jurisdiction cannot be limited to the provisions of Section 7 of the Matrimonial Causes Act while ignoring the provisions of Section 17 of the Act which refers to a declaration of rights in any property contested between spouses. I have looked at the amended Originating Summons by the petitioner and the same does not allude to division of the property as has been indicated by the applicant/ defendant. The fact that the marriage has not been dissolved does not prevent a party from bringing an action for declaration of rights to property in the High Court under Section 17 of the Matrimonial Properties Act. An inquiry may be made under Section 17 and declarations issued, the subsistence of a marriage notwithstanding. Section 17 is not aimed at enabling courts to pass or transfer property rights from one spouse to another but to answering the question of who owns what during the subsistence of a marriage as was stated in the case of PNN vs ZWN(2017) eKLR.

14. To this end, I conclude that the Preliminary Objection dated April 12, 2022 is misguided and the same is dismissed with costs to the respondent.This Court so orders.

RULING FOR MALINDI READ, SIGNED AND DELIVERED VIRTUALLY AT GARSEN in the absence of the parties THIS 9THDAY OF NOVEMBER, 2022. ...................................S M GITHINJIJUDGEMalindi HC Matrimonial Property Cause No.E001/20 (O.S) - Ruling Page 3