[2013] KEHC 6579 (KLR)
The court, bound by the Court of Appeal decision in Peter Njenga -vs- Sophia Ndungu, held that it lacks jurisdiction to entertain a suit for division of matrimonial property between spouses during unbroken coverture. There being no evidence of separation or pending matrimonial proceedings, the parties are considered...
Source-derived case information.
- Citation
- [2013] KEHC 6579 (KLR)
- Parties
- Plaintiff: M N W; Respondent: W N M & 3 Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 46 of 2012
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- suit dismissed for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Matrimonial Property, Division of Property, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M N W
Plaintiff
W N M & 3 Others
Respondent
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the High Court has jurisdiction to divide matrimonial property between spouses during unbroken coverture.
- 2 Whether the suit seeking division of matrimonial property during unbroken coverture is competent.
Ratio Decidendi
The court, bound by the Court of Appeal decision in Peter Njenga -vs- Sophia Ndungu, held that it lacks jurisdiction to entertain a suit for division of matrimonial property between spouses during unbroken coverture. There being no evidence of separation or pending matrimonial proceedings, the parties are considered to be in unbroken coverture. Entertaining such a suit would be contrary to public policy, which favours family unity and discourages actions that may accelerate family breakdown. Consequently, the originating summons seeking division of matrimonial property is incompetent and must be dismissed for want of jurisdiction.
Court Disposition
suit dismissed for want of jurisdiction
Orders
- The Originating Summons dated 14th August 2012 is dismissed with costs.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
HIGH COURT CIVIL NO. 46 OF 2012
M N W.............................................PLAINTIFF
VERSUS
W N M & 3 OTHERS.................RESPONDENT
JUDGEMENT
The Court of Appeal held in Peter Njenga -vs- Sophia Ndungu Nairobi CA Civil Appeal No. 2 of 2000that the High Court has no jurisdiction to alienate lands between spouses during their lifetime or unbroken coverture, and that a judge faced with a suit where division of matrimonial property is sought in such a case ought to dismiss it.
It is common ground that the plaintiff and the 1st defendant in this matter are husband and wife. There is no evidence of separation or of pending matrimonial proceedings, and it is therefore safe to say that the parties are enjoying unbroken coverture. The plaintiff in this suit is seeking division of matrimonial property during unbroken coverture, against the injunction made in Peter Njenga -vs- Sophia Ndungu (supra).
It is against public policy for the court to entertain such a dispute as it would accelerate the break-up of the family involved. Public policy favours family unity and stability and should foster peace and reconciliation. Alienation of lands between spouses during unbroken coverture does not augur well for the well-being of the family as a unit.
The decision of the Court of Appeal in Peter Njenga -vs- Sophia Ndungu (supra) binds me. I have no jurisdiction over this matter for the reasons set out in that decision. The Originating Summons dated 14th August 2012 is therefore incompetent I hereby dismiss the it with costs.
SIGNED DATEDandDELIVEREDin open court this 30thday of August, 2013.
W. M. MUSYOKA
JUDGE