[2014] KEELC 296 (KLR)
The court found that, notwithstanding the defendant's desertion and subsequent occupation of the properties, the parties remained legally married as there was no evidence of divorce. The Constitution guarantees equal rights to both parties in a marriage regarding property acquired during the marriage. The...
Source-derived case information.
- Citation
- [2014] KEELC 296 (KLR)
- Parties
- Plaintiff: J W M; Defendant: B W
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 63 of 2013
- Procedural Posture
- Land Case / Judgment
- Outcome
- plaintiff's suit dismissed
- Judges
- EO Obaga
- Legal Topics
- Matrimonial Property Rights, Eviction Orders, Spousal Desertion, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J W M
Plaintiff
B W
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the defendant, as a spouse, can be evicted from property acquired during the marriage despite desertion.
- 2 Whether the plaintiff is entitled to a permanent injunction restraining the defendant from the suit properties.
- 3 Whether the properties in question constitute matrimonial property under the law.
Ratio Decidendi
The court found that, notwithstanding the defendant's desertion and subsequent occupation of the properties, the parties remained legally married as there was no evidence of divorce. The Constitution guarantees equal rights to both parties in a marriage regarding property acquired during the marriage. The plaintiff's claim that the properties were not matrimonial property was not substantiated, and the defendant's occupation could not be deemed unlawful in the absence of dissolution of marriage. Granting an eviction order would be both unfair and unconstitutional. Therefore, the suit was dismissed as misconceived.
Court Disposition
plaintiff's suit dismissed
Orders
- The plaintiff's suit is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 63 OF 2013
J W M …………………………………………PLAINTIFF
VERSUS
B W ………………………………………….DEFENDANT
J U D G E M E N T
INTRODUCTION
The Plaintiff is a former husband of the defendant. The plaintiff filed this suit against the defendant seeking an eviction order against the defendant from his two plots measuring 50 x 100 situated at Mabonde area.The plaintiff also seeks a permanent injunction restraining the defendant and or her agents from interfering with his two plots.The defendant who was served with summons to enter appearance never filed defence or entered appearance.The hearing proceeded by way of formal proof.
PLAINTIFF'S CASE
The plaintiff testified that he married the defendant in 1999. They cohabited as husband and wife until 2005 when the defendant deserted him. She went and got married elsewhere leaving behind two children of the marriage. In the year 2011, the defendant came back and occupied a site office he had erected on the two properties.The plaintiff demanded that she moves out of the two properties but the defendant has refused to do so.
ANALYSIS OF EVIDENCE
The plaintiff produce a sale agreement between him and John Kibii Korir which shows that he bought two plots on 5/4/2000 at Kshs.45,000/=. The plaintiff also produced a demand letter written to the defendant asking her to move out of the property.
The plaintiff's evidence remains uncontroverted. The defendant deserted the plaintiff. She was married elsewhere. She came back after seven years and settled in a site office which the plaintiff had put up at the two properties. The plaintiff in his plaint claims that the two properties are not their matrimonial home. The plaintiff did not say in his evidence that he has divorced the defendant. The two remain husband and wife notwithstanding the fact that she deserted him and has now come back.
D E C I S I O N
I find that the plaintiff's suit is misconceived. Parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of the marriage. This is what our constitution says. It will therefore not only be unfair to order eviction of the defendant, it will also be unconstitutional. I therefore dismiss the plaintiff's case with no order as to costs.
Dated, signed and delivered at Kitale on this 17th day of July, 2014.
E. OBAGA
JUDGE
COURT: Judgement delivered at 9. 07 a.m. in the absence of the plaintiff's advocate who was aware of today's date. Court Clerk – Kassachoon.
E. OBAGA
JUDGE
17/7/2014