[2002] KEHC 1266 (KLR)
The court found that the application was incompetent as it was brought under the wrong legal provisions, namely the Civil Procedure Rules instead of the Matrimonial Causes Act and Rules. Furthermore, the court agreed with the respondent that the parties were not yet legally divorced and continued to live together,...
Source-derived case information.
- Citation
- [2002] KEHC 1266 (KLR)
- Parties
- Petitioner: M M N; Respondent: N G N
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 90 of 1997
- Procedural Posture
- Divorce Cause / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs to the respondent
- Judges
- JM Khamoni
- Legal Topics
- Matrimonial Property Management, Division of Matrimonial Property, Appointment of Receiver
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M M N
Petitioner
N G N
Respondent
Procedural Posture
Divorce Cause / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the court should appoint a receiver for management of the matrimonial properties pending division.
- 2 Whether the application was properly brought under the correct legal provisions.
- 3 Whether the parties are legally divorced and entitled to division of income from matrimonial property.
Ratio Decidendi
The court found that the application was incompetent as it was brought under the wrong legal provisions, namely the Civil Procedure Rules instead of the Matrimonial Causes Act and Rules. Furthermore, the court agreed with the respondent that the parties were not yet legally divorced and continued to live together, making it inappropriate for the court to intervene in the management or division of matrimonial property or income at this stage. The application was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The Notice of Motion dated 14th August 2001 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIORBI
DIVORCE CAUSE NO. 90 OF 1997
M M N ………………......…….. PETITIONER
AND
N G N ………………………. RESPONDENT
R U L I N G
Notice of motion dated 14th August, 2001 filed by the Applicant, Nathaniel Gitau Njuya praying for orders
“1. THAT the court be pleased to appoint a receiver for management of the matrimonial properties more particularly described in the schedule attached to this application.
2. THAT the court be pleased to make any further orders and/or give directions as it deems just in the circumstances.”
The application is based on the grounds that divorce has been pronounced in these proceedings and that matrimonial properties have not been shared out and no such application is pending in court; and that the Respondent Margaret Mugure Njuya is virtually in control of the income derived from the properties; and that there are no known liabilities attached to the properties and finally that the Applicant is prejudiced by the prevailing state of affairs.
During the hearing of the Notice of Motion the applicant said that he is praying that his ex-wife takes half and he takes half of whatever income that is being generated by their assets. That is income in the form of money like rent. Shares and the rest of the properties can wait until the time of dividing the assets.
The Applicant was relying on the judgment dated 26th July 2000 and claimed they have been divorced.
He clarified that in the schedule of properties attached to his affidavit, he wanted sharing of the income from the properties listed as number 1 to 4 only.
In opposing the application,Mr. Adere the advocate for the Respondent pointed out that the parties have not yet been divorced and are still husband and wife. They live in their Riruta matrimonial home although the Applicant maintains another woman at Kibera. Because they are not yet divorced, the Applicant cannot get the orders he is seeking as the court should not be used to divide the family and the income of the family which is living together.
Mr. Adere challenged the Applicant to disclose the official registered owner of the properties in question.
He also pointed out that the application was brought under wrong provisions. It has been brought under the Civil Procedure Rules instead of being brought under the provisions of the Matrimonial Causes Act and the Matrimonial Causes Rules. He emphasized that the application is incompetent.
As I agree with Mr. Adere and need not add anything to what he said, this Notice of Motion dated 14th August 2001 be and is hereby dismissed with costs to the Respondent.
Dated this 18th day of April 2002.
J.M. KHAMONI
JUDGE