[2015] KEHC 1191 (KLR)
The court found that the preliminary objection raised by the 2nd defendant did not raise pure points of law but instead invited arguments and required evidence, particularly as the nature of the plaintiff's claim was not strictly about matrimonial property but rather about the entitlement of the 1st defendant to...
Source-derived case information.
- Citation
- [2015] KEHC 1191 (KLR)
- Parties
- Plaintiff: Jacinta Kawira Kobia; Defendant: James Atheeru Job Kobia; Defendant: Alex Gitonga Kobia
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 89 of 2012
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- FM Njoroge
- Legal Topics
- Jurisdiction of Court, Preliminary Objection, Matrimonial Property, Assignment of Matrimonial Responsibility
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacinta Kawira Kobia
Plaintiff
James Atheeru Job Kobia
Defendant
Alex Gitonga Kobia
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to hear and determine the suit as filed.
- 2 Whether the issues raised in the plaint pertain to matrimonial property or family law, thus requiring determination by the Family Division of the High Court.
- 3 Whether the preliminary objection raises pure points of law suitable for summary determination.
Ratio Decidendi
The court found that the preliminary objection raised by the 2nd defendant did not raise pure points of law but instead invited arguments and required evidence, particularly as the nature of the plaintiff's claim was not strictly about matrimonial property but rather about the entitlement of the 1st defendant to assign matrimonial responsibility to the 2nd defendant. The mere mention of matrimonial property in the plaint did not automatically oust the jurisdiction of the court or require the matter to be heard by the Family Division. The court held that the issues raised in the preliminary objection could only be effectively addressed during the hearing of the main suit, and thus the...
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection dated 6th February, 2013 is dismissed.
- Parties to move the registry to have the suit heard by a Judge of the High Court, as the issues raised have little to do with land.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
ENVIRONMENT & LAND CASE NO. 89 OF 2012
JACINTA KAWIRA KOBIA ............................................................PLAINTIF
VERSUS
JAMES ATHEERU JOB KOBIA............................................1ST DEFENDANT
ALEX GITONGA KOBIA..........................................................2ND DEFENDANT
R U L I N G
This Ruling concerns a notice of Preliminary Objection filed by the 2nd defendant. The Preliminary Objection is dated 6th February, 2013 and states:-
“NOTICE OF PRELIMINARY OBJECTION”
The 2nd defendant will raise the following preliminary objection during the hearing of this matter:-
THATthe Honourable Court lacks jurisdiction to hear and determine this matter”.
I do note that in her plaint the Plaintiff prays for judgement against the defendants for:-
a declaration that 1st defendant is not legally entitled to empower the 2nd defendant to take any Matrimonial responsibility regarding the Plaintiff together with any other matrimonial property.
Costs of this suit.
Any other better relief.
I note that the suit was filed as HCCC NO. 89 of 2012, at Meru, as per the plaint. The plaint does not say that the suit should have been heard by the ELC Court. In the first place, the parties appeared before, the Hon Lady Justice Lesit, J, of the High Court Division.
The Preliminary Objection is crafted in a veritably nebulous and laconic manner. Perhaps as the 2nd defendant states, the matter should be raised during the hearing of the suit.
I find that the issues that the parties are raising in their Submissions can only be effectively be heard during the hearing of the main suit. Whether the orders sought by the Plaintiff can only be heard and determined by the family Division of the High Court is an issue that invites arguments and therefore brings in the need for evidence. The mere mention of “matrimonial responsibility” and “any other matrimonial property” in prayer (a) of the prayers in the plaint, does not mean that the Plaintiff is seeking matrimonial property”. Part of the prayer seems to suggest that she treats herself as part of matrimonial property. But the sensitive gist is that she seeks an order, interalia, that the 1st defendant is not entitled to assign her to the 2nd defendant. To me, this does not amount to seeking orders that determine issues of matrimonial property as claimed by the 2nd defendant in his Submissions.
I have carefully examined the Submissions of the parties. I find that the mere statement that the suit can only be heard by the family division of the High Court does not raise pure points of law. The Preliminary Objection invites arguments. I, therefore dismiss it.
Having dismissed the Preliminary Objection, and in the interests of justice, I direct as follows:-
Parties do move the registry to have this suit heard by a Judge of the High Court, as though it refers to Title No. AMWATHI/MAUA/5870, the issues raised have got little to do with land.
Costs so far to be in the suit.
It is so ordered.
Delivered in open Court at Meru this 10th day of November, 2015 in the presence of:-
CC: Daniel/Lilian
B.G Kariuki for Plaintiff
Mbogo Absent for Defendants
P. M. NJOROGE
JUDGE