[2015] KEHC 6804 (KLR)
The court held that the respondent's preliminary objection was not based on a pure point of law but rather on facts that required proof, specifically whether the parties were still married at the time of filing the Originating Summons. Since the existence or cessation of marriage is a matter that must be established...
Source-derived case information.
- Citation
- [2015] KEHC 6804 (KLR)
- Parties
- Applicant: L W K; Respondent: J K T
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 39 of 2012
- Procedural Posture
- Originating Summons / Preliminary Objection Ruling
- Outcome
- preliminary objection dismissed
- Judges
- DN Musyoka
- Legal Topics
- Division of Matrimonial Property, Preliminary Objection, Proof of Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
L W K
Applicant
J K T
Respondent
Procedural Posture
Originating Summons / Preliminary Objection Ruling
Legal Issues
- 1 Whether the court has jurisdiction to order division of property where the parties are no longer married at the time of filing.
- 2 Whether the preliminary objection is based on a pure point of law or requires proof of facts.
Ratio Decidendi
The court held that the respondent's preliminary objection was not based on a pure point of law but rather on facts that required proof, specifically whether the parties were still married at the time of filing the Originating Summons. Since the existence or cessation of marriage is a matter that must be established by evidence, the objection could not be sustained as a preliminary point. The court therefore dismissed the preliminary objection and awarded costs to the applicant.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- The applicant shall have costs of the application.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
HIGH COURT CIVIL CASE NO. 39 OF 2012 (OS)
L W K....................................APPLICANT
J K T..................................RESPONDENT
RULING
1. The respondent raised a preliminary objection to the Originating Summons dated 20th June 2012 on the grounds that when the Originating Summons was filed on 22nd June 2012, the parties had already ceased to be husband and wife. Their case is that the court would then have no jurisdiction to order division of property of parties who were not is coverture.
2. The applicant countered the respondent’s submissions by arguing that the preliminary objection was based on facts rather than on the law. She stated that evidence ought to be placed before the court to prove marriage.
3. A preliminary objection ought to be founded on pure points of law, not a point that would require proof of facts. The issues raised by the respondent are founded on facts. Whether the parties had ceased to be married by the time of the filing the originating summons is matter of proof.
4. The objection raised by the respondent is in my view without merit. I do hereby dismiss the same. The applicant shall have costs of the application.
DATED, SIGNED and DELIVERED at NAIROBI this 30th DAY OF January 2015.
W. MUSYOKA
JUDGE