[2017] KEELC 1791 (KLR)
The court determined that the Plaintiff's claim over the suit property is premised on a purported marital relationship, making it a matrimonial property dispute. Such disputes fall within the jurisdiction of the Family Division, not the Environment and Land Court. The court found that it lacked jurisdiction to hear...
Source-derived case information.
- Citation
- [2017] KEELC 1791 (KLR)
- Parties
- Plaintiff: Lucy Wambui Gathara; Defendant: Njenga Kamumu Mwema
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 342 of 2015
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Jurisdiction
- Outcome
- Suit transferred to the Family Division for hearing and disposal.
- Judges
- MM Gitumbi
- Legal Topics
- Matrimonial Property Dispute, Jurisdiction of Courts, Transfer of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Wambui Gathara
Plaintiff
Njenga Kamumu Mwema
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Jurisdiction
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to hear a suit concerning matrimonial property in the absence of a divorce decree.
- 2 Whether the suit should be dismissed or transferred to the appropriate court.
Ratio Decidendi
The court determined that the Plaintiff's claim over the suit property is premised on a purported marital relationship, making it a matrimonial property dispute. Such disputes fall within the jurisdiction of the Family Division, not the Environment and Land Court. The court found that it lacked jurisdiction to hear the matter and, rather than dismissing the suit, ordered its transfer to the Family Division for hearing and disposal. The court also noted that the issue of res judicata did not arise because the previous similar suit was dismissed for want of jurisdiction, not on the merits.
Court Disposition
Suit transferred to the Family Division for hearing and disposal.
Orders
- The suit is hereby transferred to the Family Division for hearing and disposal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
MILIMANI LAW COURTS
ELC. CASE NO. 342 OF 2015
LUCY WAMBUI GATHARA........................................PLAINTIFF
VERSUS
NJENGA KAMUMU MWEMA..................................DEFENDANT
RULING
Coming up before me for determination is the Notice of Preliminary Objection dated 15th July 2015 raised by the Defendant, Njenga Kamumu Mwema, to the effect that this suit should be summarily dismissed for the reason that this court does not have jurisdiction to hear this suit which concerns a matrimonial dispute in the absence of a divorce decree.
I have considered the Preliminary Objection and the submissions filed by both the Defendant and the Plaintiff. The test of whether an application is a proper preliminary objection has been stated in the case of Equity Bank Limited –vs.- Bryan Yongo & another [2014] eKLRwhere the court held that,
“Any true Preliminary Objection should not be entangled with factual issues.”
In the case ofMukisa Biscuits Manufacturing Co. Ltd –vs- West End Distributor Ltd [1969] E.A 696,Law JA stated that,
“So far as I am aware, a preliminary objection consists of a point 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.”
The issue of jurisdiction is a point of law which forms a preliminary point that may dispose of the suit. In this particular suit, the claim being made by the Plaintiff over the suit property is premised on a purported marital relationship between her and the Defendant, whom she claims is her husband and father of her children. Such a claim properly falls within the ambit of the Family Division rather than the Environment and Land Court.
Further, the issue of res judicata does not arise for the reason that the other cited similar suit being Senior Principal Magistrates Court at Githunguri Civil Suit No. 53 of 2014 was dismissed by that court for want of jurisdiction on 28th January 2015.
Instead of dismissing this suit, the suit is hereby transferred to the Family Division for hearing and disposal.
DELIVERED, SIGNED AND DATED AT NAIROBI THIS 1ST DAY OF SEPTEMBER 2017.
MARY M. GITUMBI
JUDGE