[2022] KEHC 10631 (KLR)

JAK v AMO (Matrimonial Cause 1 of 2020) [2022] KEHC 10631 (KLR) (15 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10631 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Matrimonial Cause 1 of 2020

HPG Waweru, J

June 15, 2022

Between

JAK

Plaintiff

and

AMO

Defendant

Ruling

1. The Plaintiff herein, JAK, filed suit by originating summons dated 13/03/2020 under sections 2, 6 and 7 of the Matrimonial Property Act, 2013 seeking the following reliefs -i.A declaration that Land Parcel L.R No. Nanyuki Municipality Block xxxx, now registered in the Defendant’s sole name is matrimonial property “which the Defendant fraudulently caused to be registered in his sole name from the joint ownership and registration” with the Plaintiff.ii.An order that the “fraudulent transfer of xxxx unto the Defendant’s sole name be nullified and the suit land do revert back to the joint names of the Plaintiff and the Defendant”.iii.A declaration that the Plaintiff and the Defendant have each a 50% stake in the suit land.iv.An order that the Plaintiff be given 50% of the value of the suit land, or the same be sold and the parties do share the proceeds thereof on 50% - 50% basis.

2. On 06/07/2020 the Defendant filed a replying affidavit in which he pleaded, inter alia, that whether or not there exists a valid marriage between the Plaintiff and him, and if so, whether such marriage should be dissolved, are issues before a pending previous suit in Nanyuki CM Divorce Cause No 17 of 2019.

3. Together with the replying affidavit the Defendant also raised a preliminary objection to the suit on points of law by notice dated 06/07/2020. The points taken are -a.That this court lacks jurisdiction to entertain the suit.b.That the suit is premature and an abuse of the process of the court in view of the pending divorce cause between the parties.c.That the suit as instituted in incompetent, bad in law and premised on misapprehension of the law.

4. In response to the replying affidavit the Plaintiff filed a further affidavit on 22/07/2020 in which, inter alia, she acknowledges the pending divorce proceedings between the parties.

5. The preliminary objection was canvassed by way of written submissions. The Defendant’s submissions were filed on 28/03/2022 while those of the Plaintiff were filed on 29/03/2022. I have considered the submissions together with the cases cited. I have also considered the relevant provisions of the Matrimonial Property Act, 2013 (the Act).

6. The Plaintiff’s claims in this suit fall under both sections 7 and 17 of the Act. Section 7 provides as follows –“7. Ownership of matrimonial property Subject to section 6(3), 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.”

7. Section 17 of the Act provides –“17. Action for declaration of rights to property1. 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; andc.may be made notwithstanding that a petition has not been filed under any law relating to matrimonial causes.”

8. Under both sections 17 and 7 of the Act, there thus must be a marriage which either is still in existence or already dissolved (in the case of section 17) or already dissolved (in the case of section 7).

9. In the present case the issue whether or not there is a valid marriage between the Plaintiff and the Defendant is a live and pending issue in Nanyuki CM Divorce Cause No 17 of 2019. That is a common ground. The Plaintiff herself instituted that divorce cause. The reliefs sought there include –“A declaration that the long-term relationship between the Petitioner and the Respondent be deemed as a valid marriage in accordance with the law.”There is also a prayer that such marriage between the two“through cohabitation between 2007 and 2016 be dissolved.”

10. Unless and until there is in favour of the Plaintiff a declaration in the divorce proceedings of existence of a valid marriage between the parties, this court cannot proceed under either section 7 or section 17 of the Act; and until there is a decree of divorce of such marriage, the court cannot proceed under section 7 of the Act.

11. The upshot is that this suit is clearly pre-mature. The preliminary objection is upheld. The suit is hereby struck out with costs to the Defendant. It is so ordered.

DATED AND SIGNED AT NANYUKI THIS 15TH DAY OF JUNE 2022H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 16TH DAY OF JUNE 2022