[2017] KEHC 3229 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION-MILIMANI LAW COURTS

CIVIL SUIT NO. 3 OF 2017

M N G…………………APPLICANT/PLAINTIFF

-VERSUS-

J W G………...……RESPONDENT/DEFENDANT

R U L I N G

1. The Respondent filed a Notice of Preliminary Objection on 28th June, 2017 in opposition to the Plaint and Notice of Motion dated 15th February, 2017 filed by the Applicant. The Plaint filed by the Applicant/Plaintiff sought orders in the following terms:

1) A declaration that there be a presumption of marriage between the Plaintiff and the Defendant herein for all purposes.

2) That all properties identified as being owned, acquired or utilized by the parties herein during the subsistence of the marriage be deemed to be matrimonial property in accordance with Section 6 of the Matrimonial Act.

3) That the plaintiff herein is entitled to an equal share of the properties of the marriage between herself and the defendant.

4) That in the alternative or in addition to the prayer above, the defendant do pay to the Respondent the sum ofKshs. 535,500 as monthly maintenance for a period as to be determined by the court or as lump sum payment as the court may decide.

5) That the defendant be permanently restrained from threatening the plaintiff and/or her children in any way.

6) That the marriage as determined by the court as between the plaintiff and the defendant herein be dissolved for reasons of adultery, desertion and cruelty.

7) Defendant to pay costs of the suit

2. In the Notice of Motion filed by the Applicant/ Plaintiff, the following orders were sought:

a. THATthe court do order the Defendant/Respondent herein to pay the plaintiff/applicant the sun of Kshs. 535,500 a month as maintenance pending the hearing and determination of this application.

b. THATthe court do order the defendant/respondent to pay rent for the plaintiff/applicant herein in reasonable premises commensurate with her previous accommodation at her matrimonial home pending the hearing and determination of the suit herein.

c. THATthe court do issue a restraining order stopping the defendant/respondent from harassing, threatening or intimidating the plaintiff/ applicant herein pending the hearing of this application and suit herein.

d. THATthe costs of this application be provided for.

3. The Respondent opposed the Application and filed a Notice of Preliminary Objection in which he contends:

a. THATboth the Plaint and the Notice of Motion are incompetently before the Court since in the province of the Marriage Act No. 4 of 2014, Section 2(c), Court means the Resident Magistrate’s Court and not the High Court hence prejudicing the Defendant and subsequently denying him the right to a second Appeal.

b. THATthe Plaintiff herein has no locus to file for a divorce by way of dissolution of marriage since by her own pleading at the time of filing the suit she is not a spouse and seeks the court to declare her as one.

c. THATthe Plaintiff must in the first instance be declared a spouse before she gets standing rights of a spouse, including right to file for dissolution of marriage.

d. THATby dint of law, dissolution of marriage is by way of Petition for Divorce and not by Plaint as filed by the Plaintiff.

e. THATin so far as Declaration of marriage may be made, the same cannot be dissolved on the same day as it is a requisite of Law that a minimum of three years lapse before a dissolution can be effected.

4. The Applicant, in her submissions, identifies several issues that are the basis of this suit. On the issue of a declaration of existence of marriage between the parties, it is the Plaintiffs submission that the Marriage Act states types of marriages, it however does not provide for the division of matrimonial property which is the main cause of this matter.

5. The Matrimonial Property Act on the other hand provides for division of matrimonial properties, but does not define what a marriage is and does not provide for spousal maintenance. It does not also provide for which court should be approached. The Applicant therefore argues that it is quite evident that the two Acts have to be referenced together for the sake of the case. The Applicant submits that the union between the couple was not registered, it would therefore require the validation of the court to proceed.

6. On the jurisdiction of the court to hear this matter, it was the Applicant’s submission that the value of the properties which form the subject matter of the suit are highly likely to fall outside the jurisdiction of the Resident Magistrate Court.

7. On the issue of the division of matrimonial property, the Plaintiff submitted that she is a wife under Kikuyu Customary Law and that it is only in light of the prayers sought and the new legal regime requiring registration of marriage that she must now request the court to recognize her status which she has carried for more than 20 years in order for her to safeguard her interests.

8. It was the Applicant’s submission that the joinder of cases is allowed in practice and that this court has jurisdiction to declare the Plaintiff a spouse if indeed she is, dissolve her marriage and also divide for her benefit the matrimonial property. She states that the Applicant is in court to divide matrimonial assets, and because the issue of marriage itself has been made debatable, the filing of a Divorce Petition is not suitable. In conclusion, the Applicant submits that a Preliminary Objection is raised purely on a point of law and has relied on three cases:

a. HCC 58 of 2014 (O.S) Nairobi A.K.N v J.N.M

b. Matrimonial Cause 73 of 2014 (Nairobi) R.N.N. v P.S

c. Mukisa Biscuit Company – vs- Westend Distributors Limited (1969) EA 696

9. In addressing what constitutes a Preliminary Objection, Law JA in the celebrated case of Mukisa Biscuit Manufacturers Ltd vs Westend Distributors Ltd stated thus:

"...so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration."

In the words of Sir Charles Nwebold P at page 701:

"...A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion."

10. It is my view that the Preliminary Objection raised by the Respondent raises matters of evidence which require this Court to ascertain certain facts. The grounds upon which the Preliminary Objection is sought raise questions of fact and law, in regard to which, the Applicant and Respondent are in disagreement. A critical issue for investigation by this Court is the question whether or not there exists a marriage relationship between the parties.

11. The Respondent argues that the Applicant ought to, in the first instance be declared a spouse before she gets standing rights of a spouse, including right to file for dissolution of marriage and all this must happen prior to presenting the application for division of matrimonial property. Although that would have been the more organized way to approach the matter is not entirely mandatory. I agree with the submission by the Applicant that the issue as to whether there exists a valid marriage between the parties can be dealt with within the suit for division of matrimonial property.

12. Section 17 of the Matrimonial Property Act, 2013 states that:

(1) A person may apply to a court for a declaration of rights to any property that is contested between that person and a spouse or a former spouse of the person.

(2) An application under subsection (1)— (a) shall be made in accordance with such procedure as may be prescribed; (b) may be made as part of a petition in a matrimonial cause; and (c) may be made notwithstanding that a petition has not been filed under any law relating to matrimonial causes.

13. The court therefore is not persuaded that the preliminary objection as raised is properly predicated. In light of the above and in the interest of administration of justice, this Court disallows the Respondent’s Preliminary Objection dated 28th June, 2017. The Applicant will have the costs of the Preliminary Objection.

SIGNED DATEDandDELIVEREDin open court this 3rd day of October 2017.

………………………………

L. A. ACHODE

JUDGE

In the Presence of: …………………………………………Counsel for the Applicant

In the Presence of: ………………………………………Counsel for the Respondent