[2015] KEHC 3742 (KLR)
The court found that the applicant and respondent were married under statute and that the property in question was acquired during the marriage. The respondent was duly served but failed to oppose the application or file any response. The court was satisfied that the applicant had established a prima facie case for...
Source-derived case information.
- Citation
- [2015] KEHC 3742 (KLR)
- Parties
- Applicant: L N N; Respondent: P M M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 61 of 2013
- Procedural Posture
- Originating Summons / Ruling on Interlocutory Application for Preservation Orders
- Outcome
- interlocutory application allowed; preservation orders granted
- Judges
- DN Musyoka
- Legal Topics
- Matrimonial Property, Division of Property, Preservation Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
L N N
Applicant
P M M
Respondent
Procedural Posture
Originating Summons / Ruling on Interlocutory Application for Preservation Orders
Legal Issues
- 1 Whether the applicant is entitled to preservation orders over the matrimonial property pending determination of the main suit.
- 2 Whether the applicant has established a prima facie case for the preservation of the listed assets.
Ratio Decidendi
The court found that the applicant and respondent were married under statute and that the property in question was acquired during the marriage. The respondent was duly served but failed to oppose the application or file any response. The court was satisfied that the applicant had established a prima facie case for the preservation of the matrimonial property pending the full hearing and determination of the main suit. Accordingly, the court allowed the Chamber Summons dated 9th October 2013 as prayed, granting the preservation orders sought by the applicant.
Court Disposition
interlocutory application allowed; preservation orders granted
Orders
- The Chamber Summons dated 9th October 2013 is allowed as prayed.
- The applicant shall have costs of the application.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 61 OF 2013(OS)
IN THE MATTER OF SECTION MARRIED WOMEN PROPERTY ACT OF 1882
AND
IN THE MATTER OF SECTION 17 OF THE MARRIED WOMEN PROPERTY ACT
L N N …………………….….……………………….. APPLICANT
V E R S U S
P M M ………….……………………….………… RESPONDENT
RULING
1. The petitioner herein moved the court by way of an Originating Summons dated 9th October 2013 seeking division of matrimonial property listed in the application. It was pleaded that the parties had solemnized marriage under statute in 1996. They thereafter acquired property together being LR. No. [particulars withheld] Embakasi near APTC, motor vehicles and household goods.
2. Contemporaneously with the application, the petitioner filed a summons in chambers of even date seeking preservation of LR No. [particulars withheld] (matrimonial home) and motor vehicle registration [particulars withheld]. The said application is grounded on the facts set out in the affidavit sworn by the applicant in support of the Originating Summons.
3. When the summons in chambers was placed before me on 11th October 2013 I directed that the same be served on the respondent for inter partes hearing on 7th November 2013.
4. There is an affidavit of service on record sworn on 15th October 2013 and filed herein on 31st October 2013 indicating that the application was indeed served on the respondent on 14th October 2013.
5. The matter was not heard on 7th November 2013 for the same was not listed on that date. It was eventually placed before me on 24th July 2014. Counsel for both sides attended court on that date, when I directed that the application dated 9th October 2013 be disposed of by way of written submissions.
6. The applicant filed her written submissions on 9th October 2014. The respondent did not file written submissions. He did not file a replying affidavit either. The application dated 9th October 2013 is therefore not opposed.
7. I have perused the record and I am satisfied that the parties contracted a marriage on 7th December 1996. I have noted that the motor vehicle in question [particulars withheld] was acquired thereafter, and so was the property LR No. [particulars withheld]. Whether the petitioner contributed to the acquisition of both assets is a matter for the full hearing.
8. The Chamber Summons dated 9th October 2013 is allowed as prayed. The applicant shall have costs of the application.
DATED, SIGNED and DELIVERED at NAIROBI this 10TH DAY OF JULY, 2015.
W. MUSYOKA
JUDGE
In the presence of Mr. Amalemba for Ms. Njagi advocate for the Applicant.
No appearance for the Respondent.