[2017] KEHC 1096 (KLR)
The court found that, while there is no dispute that some assets were acquired before the marriage, the question of whether the plaintiff contributed to their improvement and maintenance is a substantive issue to be determined at the hearing of the main suit. To preserve the subject matter of the suit and prevent...
Source-derived case information.
- Citation
- [2017] KEHC 1096 (KLR)
- Parties
- Plaintiff: K S M; Defendant: T G E M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 29 of 2016
- Procedural Posture
- Civil Suit / Interlocutory Application Ruling
- Outcome
- interlocutory_application_allowed
- Judges
- DN Musyoka
- Legal Topics
- Matrimonial Property, Asset Preservation Orders, Contribution to Property, Interlocutory Injunctions
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
K S M
Plaintiff
T G E M
Defendant
Procedural Posture
Civil Suit / Interlocutory Application Ruling
Legal Issues
- 1 Whether the assets listed were acquired during matrimony with joint efforts of the parties.
- 2 Whether the plaintiff contributed to the improvement and maintenance of assets acquired before matrimony.
- 3 Whether it is appropriate to preserve the assets pending determination of the main suit.
Ratio Decidendi
The court found that, while there is no dispute that some assets were acquired before the marriage, the question of whether the plaintiff contributed to their improvement and maintenance is a substantive issue to be determined at the hearing of the main suit. To preserve the subject matter of the suit and prevent possible dissipation of the assets, it is prudent to grant the preservation orders sought. The court therefore allowed the motion for preservation of the assets pending the hearing and determination of the suit, with costs in the cause.
Court Disposition
interlocutory_application_allowed
Orders
- The Motion dated 25th July 2016 is allowed in the terms proposed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 29 OF 2016 (OS)
K S M....................................................PLAINTIFF
VERSUS
T G E M..............................................DEFENDANT
RULING
1. The Originating Summons herein dated 25th July 2016 was filed at this registry on even date by the plaintiff seeks various declarations relating to the assets set out in the pleadings to the effect that they were all acquired during matrimony with the joint efforts of the parties, or were developed and maintained with the joint efforts of the parties.
2. Contemporaneously filed with the Originating Summons is a Motion for preservation of the assets pending hearing and determination.
3. In response to the application, the defendant argues that some of the assets were acquired before matrimony and denies that the plaintiff contributed in any way to their improvement and maintenance.
4. It was directed that the Motion be disposed of by way of written submissions. There has been compliance. I have read through the written submissions and the supporting documents and noted the arguments made.
5. It is common ground that some of the assets the subject of the suit were acquired before matrimony. It is however disputed as to whether the defendant contributed in any way to their improvement and maintenance. That is a moot point to be determined at the hearing of the main suit. There is no apparent dispute over the rest of the assets.
6. It would be prudent that the said assets be preserved pending the hearing and determination of the suit, where questions as to whether the plaintiff contributed to the improvement and maintenance of the assets acquired before she married the defendant will be resolved.
7. I shall hereby orders as follows: -
(a) That I allow the Motion dated 25th July 2016 in the terms proposed; and
(b) That costs shall be in the cause.
DATED, SIGNED and DELIVERED at NAIROBI this 8TH DAY OF DECEMBER, 2017.
W. MUSYOKA
JUDGE