[2021] KEELC 3641 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO. 110 of 2019 (OS)

GLADYS MUTHONI KIBUI...............................................................PLAINTIFF

VERSUS

GEOFFREY NGATIA.................................................DEFENDANT/OBJECTOR

RULING

The matter for determination is the Notice of Preliminary Objection dated 20th September 2019,filed by the Defendant/Objector on the grounds that;

1) This Honorable Court lacks jurisdiction to entertain this matter.

2) The matter is premature as it seeks division of matrimonial property in contravention of Section 7 of the Matrimonial Property Act the parties have not yet divorced.

3) This honorable Court lacks geographical jurisdiction to determine this suit.

4) In the view of the foregoing, the application is incompetent, misconceived and bad in law and ought to be dismissed with costs.

The Court directed the parties to file written submissions and in compliance with the said directives, the Defendant/Objector through the Law Firm of SALUNY ADVOCATES LLP,filed the written submissions on 14th October 2020,while the Plaintiff filed her written submissions on1st December 2020, through the Law Firm of SB OTIENO & CO ADVOCATES and relied on various decided cases and provisions of law to which the Court has now carefully read and considered.

A Preliminary Objection was described in the Mukisa Biscuits Manufacturing Co. Ltd…Vs…West End Distributors Ltd (1969) EA 696 to mean:-

“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”.

Further Sir Charles Nebbold, JA stated that:-

“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 had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”.

This Court having made a finding on the description of a Preliminary Objection, it is not in doubt that a Preliminary Objection raises pure point of law, which is argued on the assumption that all facts pleaded by the other side are correct. However it cannot be raised if any facts has to be ascertained from elsewhere or the Court is called upon to exercise judicial discretion.

In the case of Quick Enterprises Ltd..Vs..Kenya Railways Corporation, Kisumu HCCC No. 22 of 1999, the Court held that:-

“When preliminary points are raised, they should be capable of disposing the matter preliminarily without the Court having to result to ascertaining the facts from elsewhere apart from looking at the pleadings.”

Further a Preliminary Objection must stem from the pleadings and raises pure point of law. See the case of Avtar Singh Bhamra & Another…Vs….Oriental Commercial Bank, Kisumu HCCC No.53 of 2004, where the Court held that:-

“A Preliminary Objection must stem or germinate from the pleadings filed by the parties and must be based on pure points of law with no facts to be ascertained.”

Before the Court embarks on determining the merit of this Notice of Preliminary Objection, it has to first determine whether what has been raised herein satisfy the ingredients of a Preliminary Objection. As the Court determines whether what the Defendant/Objector has filed amounts to a Preliminary Objection or not, it will be persuaded by the findings in the case of Oraro…Vs…Mbaja (2005) 1KLR 141, where the Court held that:-

“Anything that purports to be a Preliminary Objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence”.

Whether the Court has jurisdiction to determine the dispute:

The Plaintiff’s case as framed is for the severance of a joint ownership in respect to KIKUYU/KIKUYU BLOCK 1/70. Under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011, this Court has jurisdiction to determine all disputes relating to the environment and the use and occupation of, and title to land. Section 13(1) and (2) of the Environment and Land Act provides as follows:

“13. Jurisdiction of the Court

(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.

(2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—

(a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;

(b) relating to compulsory acquisition of land;

(c) relating to land administration and management;

(d) relating to public, private and community land and contracts, chose in action or other instruments granting any enforceable interests in land; and

(e) any other dispute relating to environment and land.”

There is no doubt from the foregoing that this Court has jurisdiction to determine the dispute before it which revolves around title to land. On whether the Court can determine a dispute over matrimonial property, so long as the dispute is over the use, occupation or title to land, this Court has jurisdiction to determine it whether such land is classified as matrimonial property or not.

In Jane Wambui Ngeru v Timothy Mwangi Ngeru(2015)eKLRthe Court stated as follows:

“In addition if rights to matrimonial property are in dispute, Section 17 of the Matrimonial Property Act of 2013 provides as follows:

(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.

No particular Court is identified by the Act, and can therefore be any Court that has been given jurisdiction to hear matrimonial disputes. The High Court is in this regard granted original and unlimited jurisdiction in civil matters by the Constitution under Article 165(3). The Marriage Act of 2014 in addition provides that the Courts that will hear matrimonial causes arising under the Act are resident magistrate's Courts and within the limits provided under the law as to their jurisdiction.

It is thus the current legal position that concurrent jurisdiction is given to various Courts to hear disputes relating to matrimonial property rights including this Court. The only limitation applicable to this Court is that it can only hear such disputes if they involve or relate to land.”

In B W M VS J M C, Murang’aELC Case No. 379 of 2017 [2018] eKLR,the Court stated as follows:

“For avoidance of doubt, the Court notes that the matrimonial Property Act does not seem to define the Court that disputes relating to the Matrimonial property disputes should be referred for determination. It is thus the current legal position that concurrent jurisdiction is given to various Courts to hear disputes relating to matrimonial property rights including this Court. The only limitation applicable to this Court is that it can only hear such disputes if they involve or relate to occupation use and title to land. I find nothing to oust the jurisdiction of this Court and I proceed to determine the Preliminary objection”

Whether the suit is premature by virtue of sec 7 of the Matrimonial Property Act

Under Section 3of theMarriage Act, marriage is defined as the voluntary union of a man and a woman, whether in a monogamous or polygamous union and registered in accordance with the Act. The Plaintiff and the Defendant got married under the kikuyu customary laws and lived as husband and wife. They were subsequently registered as joint owners of the suit land known as KIKUYU/KIKUYU BLOCK 1/70. From the evidence presented by the parties, through affidavits and annextures the marriage has not been dissolved or annulled in any Court of law. However, the parties indicated that they have separated since 2008.

The question that follows then is whether this Court has the jurisdiction to make a determination on Matrimonial Property during the existence of a marriage.

Matrimonial Property is defined under Section 6of the Matrimonial Property Act to mean:-

a) the matrimonial home or homes;

b) household goods and effects in the matrimonial home or homes; or

c) any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.

The matrimonial home is defined under Section 2 of the Actas any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property.

Under Section 17 of the Married Women’s Property Act, 1882 which has since been repealed by Section 19 of the Matrimonial Property Act, 2013, which is now the law governing disputes relating to matrimonial property, a party may apply to the High Court by summons in any question between husband and wife as to the title to or possession of property. The Section is not pegged on the status of marriage of the parties. The Matrimonial Property Actalso provides for declaratory orders under its Section 17 which states that:

“(1) A person may apply to a Court for declaration of rights to any property that is contested between that person and a spouse.

(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.”

By virtue of Section 17 of the Matrimonial Property Act, the Court has jurisdiction to declare the rights of parties in relation to any property which is contested. The Plaintiff however sought more than a declaration of rights. She went further to seek that the Court grants her ninety (90) percent of the 0. 0788 HAof the suit property.

In the persuasive case ofN.C.K vs G.V.K [2015] eKLR, Muchelule J observed thus:

“In England, under the Matrimonial Causes Act 1973, in instances where parties, for religious or other reasons, do not want to divorce, and if a couple chooses not to bring matrimonial proceedings, the Court will resolve any questions about the beneficial entitlement to their property without using the divorce Court’s adjustive power. The Family Law Act 1966 at Section 33(4) provides for declaratory orders which are intended to do no more than declare the nature of the interest that is claimed. In the case of Arif vs Anwar [2015] EWHC 124 (FAM) the parties filed divorce proceedings but the same was yet to be determined. The Court proceeded to declare each party’s beneficial interest in the matrimonial property without severing the same…

It would appear to me that a spouse can, under Section 17 of the Matrimonial Property Act 2013, either where there is a divorce matter pending, or where, for whatever reason, he can no longer live together with the other spouse but is not seeking to divorce, come to Court to resolve any questions about beneficial interest in the matrimonial property without severing the same.”

The Court notes that the above case demonstrates that a declaration under Section 17 of the repealed Act is not pegged on the subsistence of a marriage. The effect of this Section is such that the Court can make a declaration with regard to the suit property known as KIKUYU/KIKUYU BLOCK 1/70, in this case even though the parties are still married. It does not however provide for the sharing of such property.

The upshot of the foregoing is that since the marriage of the Plaintiff and Defendant has broken down, the Court has powers to issue declaration under Section 17 of the Matrimonial Property Act but CANNOT SEVERE the same as prayed by the Plaintiff onprayer item 1 and 3 of the O.S which states;

1. Joint ownership in respect ofKIKUYU/KIKUYU BLOCK 1/70 be severedto a tenancy in common.

3. An order do issue declaring that the Plaintiff is entitled to 90% of the 0. 0788HA of the suit property.

From the above analysis the Court finds and holds that these proceedings were instituted prematurely with a view to distribute the matrimonial property as prayed. The Court holds that the only remedy is that the Plaintiff may seek an appropriate relief in the Family Division Court. Division of Matrimonial Property can only be done after dissolution of marriage. This Court has no Jurisdiction to deal with dissolution of marriages.

For the above reasons, the Court finds that the Notice of Preliminary Objection dated 20th September 2019, by the Defendant is merited and the same is upheld.

The Plaintiff should file this suit in the relevant Court with requisite Jurisdiction.

Since the Preliminary objection is upheld, the Court strikes out the suit herein entirely and directs the Plaintiff to file the suit in the right Court.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 22ND DAY OF APRIL 2021.

L. GACHERU

JUDGE

22/4/2021

Court Assistant - Phyllis

ORDER

In view of the declaration of measures restricting Court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Rulinghas been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Mr. Otieno for the Plaintiff

M/s Cuna for the Defendant/Objector

L. GACHERU

JUDGE

22/4/2021