[2019] KEHC 6871 (KLR)
The court found that the applicant's need for urgent medical attention justified the removal of the caution and the sale of a portion of the matrimonial property. The respondent failed to provide viable alternatives for raising the required funds, and the evidence did not support the claim that the sale would render...
Source-derived case information.
- Citation
- [2019] KEHC 6871 (KLR)
- Parties
- Applicant: JOO; Respondent: JNO
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Matrimonial Cause 1 of 2019
- Procedural Posture
- Matrimonial Cause / Ruling on Notice of Motion
- Outcome
- application allowed
- Judges
- KW Kiarie
- Legal Topics
- Matrimonial Property, Caution on Land, Medical Expenses, Division of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
JOO
Applicant
JNO
Respondent
Procedural Posture
Matrimonial Cause / Ruling on Notice of Motion
Legal Issues
- 1 Whether the applicant should be permitted to sell part of the matrimonial property to meet urgent medical expenses.
- 2 Whether the caution placed by the respondent on the land should be removed to facilitate the sale.
- 3 Whether allowing the sale amounts to premature division of matrimonial property before divorce determination.
Ratio Decidendi
The court found that the applicant's need for urgent medical attention justified the removal of the caution and the sale of a portion of the matrimonial property. The respondent failed to provide viable alternatives for raising the required funds, and the evidence did not support the claim that the sale would render the family landless, as the couple owns other lands and none of the children are minors. The court held that permitting the sale does not amount to premature division of matrimonial property, but is a necessary measure to prevent the applicant from suffering when he owns property acquired during the marriage.
Court Disposition
application allowed
Orders
- The land registrar Kajiado North to remove the caution lodged in respect of land parcel number NGONG/NGONG/XXXXX.
- The applicant is at liberty to hive off the equivalent of 0.15 ha from the land and sell it for the purposes of his medication.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
MATRIMONIAL CAUSE NO. 1 OF 2019
JOO..................APPLICANT
VERSUS
JNO............. RESPONDENT
RULING
1. The applicant and the respondent in this matrimonial cause are husband and wife. Apparently their relationship has grown cold. The applicant has moved this court for intervention so that he can sell part of their land to enable him meet medical costs. This he did by way of Notice of Motion under sections 1A, 1B and 3A of the civil Procedure Act and Order 40 Rules 1 and 4 of the Civil Procedure Rules. He is seeking orders as follows:
a. That the caution in respect of land parcel number NGONG/NGONG/XXXXX.
b. That the applicant be at liberty to hive off the equivalent of 0. 15 ha. From land title number NGONG/NGONG/XXXXX.
2. The application was premised on the following grounds:
a. That the applicant is the registered owner of land title number NGONG/NGONG/XXXXX having purchased it for valuable consideration.
b. That the applicant suffers from four chronic medical conditions and urgently requires two urgent surgeries.
c. That the respondent placed caution in the year 2015 and has refused to remove it.
d. That the respondent has no other source of income to cater for his medication.
3. The respondent opposed the application on the following grounds:
a. That the intended sale of land parcel number NGONG/NGONG/XXXXXwould render their children and grandchildren landless.
b. That there are other alternative means the family may exercise to meet the applicant’s expenses.
c. That it would be premature for the court to ask the parties to share the matrimonial property before the divorce case is determined.
4. There are several undisputed facts that both parties admit though not expressly. These are:
a. That the both are still husband and wife.
b. That the applicant is no longer in any gainful employment.
c. That he is in need of medical attention which requires a colossal amount of money.
5. Common logic would dictate that when an individual is faced with financial challenges he/she must resort to raise the same by disposing some assets earlier acquired. This is the same situation the applicant has found himself in. I have looked at the attached medical documents and I am satisfied that indeed his application is not driven by selfishness as the respondent contends. He is a man in need of medical attention.
6. Though the respondent has averred that the family can raise the required medical expenses she has not offered any for the consideration of the court.
7. The contention that hiving part of the land parcel number NGONG/NGONG/XXXXXwould render their children and grandchildren landless is not supported by the evidence on record. The applicant proposes only to hive off the equivalent of 0. 15 ha. The couple has other lands. None of their children is a minor. The applicant cannot be condemned to suffer so that his children and grandchildren can inherit.
8. I therefore find that the application is merited. It does not amount to sharing out the matrimonial property. This is the only logical way to ensure that a person does not suffer when he has property which he acquired when he was healthy and strong.
9. It is ordered that the land registrar Kajiado North to remove the caution that was lodged in respect of land parcel number NGONG/NGONG/XXXXXand the applicant be at liberty to hive off the equivalent of 0. 15 ha and sell for the purposes of his medication.
10. Each party will meet own costs.
DELIVEREDandSIGNEDatBUSIAthis12thdayof June, 2019
KIARIE WAWERU KIARIE
JUDGE