[2022] KEHC 16529 (KLR)

JMG v GWC (Civil Appeal E066 of 2022) [2022] KEHC 16529 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16529 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E066 of 2022

RB Ngetich, J

December 15, 2022

Between

JMG

Appellant

and

GWC

Respondent

Ruling

1. Before the court for determination is the chamber summons dated August 16, 2022 and filed on August 7, 2022 seeking to set aside the orders of the Honourable Principal Magistrate Thika of April 5, 2022. On the grounds that the applicant is apprehensive the respondent will mess with the matrimonial property.

2. The application is supported by the annexed affidavit of JMG the applicant/appellant herein sworn on April 6, 2022. He deposes that the honourable magistrate in civil suit no 1101 of 2005 determined and issued eviction order in favor of the respondent who is his estranged wife yet the trial court lacks jurisdiction.

3. In response, the respondent filed a replying affidavit sworn on May 13, 2022, in which she deposes that the application is frivolous, vexatious and an abuse of the court process. She stated that the trial court delivered judgment on March 13, 2015 declaring the respondent a lawful owner of the parcel known as Ruiru West Blockx/xxx. She further stated that the applicant has failed to prove the existence of a marriage between him and her and urged this court to dismiss the application.

4. Directions were given on July 16, 2022 to canvass the application through written submissions. Both parties have complied.

Applicant’s Submissions 5. The applicant in his submissions filed on September 19, 2022 submitted that he seeks to set aside orders of April 5, 2022 which dismissed his preliminary objection challenging the trial court’s jurisdiction. He stated that the appeal is arguable, with high chances of success and the appeal will be rendered nugatory if the orders of the trial court are not set aside.

6. He further contends that a spouse shall not be evicted from the matrimonial property or home at the instance of the other spouse and he is apprehensive he will suffer irreparable loss.

Respondent’s Submissions 7. Counsel for the respondent filed submissions on September 7, 2022 and submitted that the applicant’s claim of the matrimonial property has not been ascertained in law. Counsel further submitted that the preliminary objection as filed by the applicant in the lower court failed to meet the threshold of a preliminary objection as pointed out in the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696 where it was held as follows: -“a preliminary objection consists points 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.”

8. Counsel submitted that the issue of sub-judice due to the ongoing divorce matter is misleading to the court and urges this court to disallow the application with costs to the respondent as the application is an abuse of the court process.

Analysis And Determination 9. I have considered ground of the application, averments in the affidavits and submissions filed. The issue for determination is whether this court should set aside the orders of the trial court of April 5, 2022.

10. The trial court in its judgment delivered on March 13, 2015 declared the respondent the owner of the property known as Ruiru West block x/xxx and directed the property to be registered in the name of the respondent. The trial court further found the appellant is not entitled to the property. The appellant did not appeal against the said judgment.

11. In the year 2022, the respondent filed notice of motion application seeking eviction orders and the demolition of the structures thereon. It was based on the application that the applicant filed the preliminary objection dated February 25, 2022, which was dismissed by the trial court.

12. The appellant has appealed against the orders dismissing the preliminary objection.

13. The appellant/applicant now seeks to set aside the orders dismissing the preliminary objection. According to the applicant, he is apprehensive if the orders are not granted the respondent will deal with the matrimonial property.

14. It is settled law that an appellate court will interfere with the decision of the trial court if it is shown that in exercising its discretion, the lower court misdirected itself and at wrong decisions as was stated in the case of Mbogo v Shah (1968) EA 93.

15. The court orders are not issued in vain. Every litigant is expected to enjoy the fruits of their judgment. The respondent in the instant case was executing the judgment issued in 2015 by seeking orders of eviction and demolition of the structures in the parcel of land known as Ruiru West Block x/xxx.

16. The judgment of the trial court was issued in 2015; the applicant did not appeal against the said judgment. In dismissing the preliminary objection, the trial magistrate took into consideration all the relevant factors together with the judgment dated March 13, 2015 which was issued in favor of the respondent and which has never been appealed against.

17. In the instant case, the applicant has not demonstrated to the court that the trial court misdirected itself in dismissing the preliminary objection filed on February 25, 2022.

18. I thus do not find that the trial court misdirected itself in dismissing the preliminary objection.

19. The applicant contends that unless the orders setting aside the order of April 5, 2022, are issued he will suffer irreparable loss. He has however failed to demonstrate to the court the loss to be suffered. Record shows that the trial court found that he has been in illegal occupation and utilizing the respondent’s parcel of land.

20. From the foregoing, I see no merit in the application dated April 6, 2022.

Final Orders: - 1. Application herein dated August 16, 2022 is hereby dismissed.

2. Costs to the respondent.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 15TH DAY OF DECEMBER, 2022. RACHEL NGETICHJUDGEIn the Presence of:Kinyua/Martin – Court AssistantsJM/Applicant – PresentMs. Sharon Njoka for Respondent