[2022] KEHC 14837 (KLR)

M v M (Civil Suit 37 of 2018) [2022] KEHC 14837 (KLR) (Family) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14837 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Suit 37 of 2018

MA Odero, J

October 7, 2022

Between

MMMM

Applicant

and

JCGM

Respondent

Ruling

1. Before this court for determination is the notice of preliminary objection dated November 10, 2019 filed by the respondent JGCM.

2. The objection was opposed by the applicant MMMM. The matter was canvassed by way of written submissions. The respondent filed the written submissions dated July 10, 2020, whilst the applicant relied upon her submissions dated July 19, 2022.

Background 3. The applicant filed in this court the originating summons dated October 12, 2018 seeking the following orders:-“1. That the applicant and the respondent having been married on October 19, 1992 pursuant to the marriage Act the properties acquired jointly are:-a.Mugoya phase iv house no xx on parcel of land no xxx/xxx situated at South C Mombasa Road Nairobi.b.Matrimonial house, 3,000 tea bushes and several thousands of trees on LR No Isoge Settlement Scheme/xxx andc.LR no xxx/Isoged.Land Reference no Nairobi/Block xx/xxxxe.A plot with Kwetu Housing Co-operative Society Limited2. That a declaration that the applicant as a spouse is entitled to and has an interest in the matrimonial properties stated in in (a) above as they were acquired during the marriage to the respondent.3. That a declaration that the applicant made substantial contribution to the acquisition and the purchase of the matrimonial properties listed in (a) above through her income.4. That a declaration that the applicant is entitled to joint ownership of:-i.Mugoya phase iv house no xx on parcel of land no xxx/xxx situated at South C Mombasa road Nairobi.ii.Plot no xxxx at Kantafu Komarock Estate Phase XIiii.LR no xxx/Isogeiv.A plot with Kwetu Housing Co-operative Society Limited5. That the costs of this suit be provided for.”

4. The respondent did not file any reply to the originating summons but instead filed this notice of preliminary objection which is premised upon the following grounds:-1. That the application is from the outset fatally defective and amounts to an abuse of the court process. That the originating summons is premature, misplaced, untenable in law, fatally defective, and amounts to an abuse of the court process.2. That the present case offends the provisions of the Matrimonial Property Act, 2013 in so far as it seeks the determination of rights and division of Matrimonial property during the life of a subsisting marriage which as not been dissolved by an order of the court.3. That there is no valid divorce decree and therefore this honorable court cannot entertain an application seeking to severe matrimonial property.4. That the application contravenes section 7 of the Matrimonial Property Act (no 49 of 2013), section 60, 61 and 65 of the Marriage (ActNo 4 of 2014)5. That the application is in whole bad in law.”

5. The respondent submits that the marriage between the parties has not been dissolved and is still subsisting. That in the circumstances the court cannot entertain a suit seeking division of matrimonial property as this would contravene section 7 of the Matrimonial Act2013.

6. The respondent further submits that the summons filed by the applicant is vague and that it is difficult to comprehend what orders are being sought. He urges that the application is premature and bad in law and prays that the same be struck out.

7. The applicant filed submissions opposing the notice of preliminary objection. The applicant denied the allegation that the application filed was vague. She submitted that the court has jurisdiction to resolve any questions about a parties beneficial entitlement to suit property without necessarily severing said property. That a prayer for declaratory rights may be entertained by the court notwithstanding the fact that the marriage between the parties still subsists.

8. The applicant terms this preliminary objection as frivolous and an abuse of court process and prays that the same be dismissed.

Analysis and Determination 9. I have carefully considered the notice of preliminary objection dated November 19, 2019 as well as the written submission filed by both parties.

10. The definition of what constitutions a preliminary was set out in the cited case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA wherein it was held as follows:-Law, JA:-“As 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. 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.Newbold, P:-“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 facts pleaded by the opposite side are correct. It cannot be raised if any fact is to be ascertained or if what is sought is the exercise of judicial discretion. The improper practice of raising points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion confuse issues and this improper practice should stop.”

11. In Gladys PereruanvBetty Chepkoriri[2020] eKLR court stated that:-“A preliminary objection if allowed may dispose off the entire suit without giving parties the opportunity to be heard. This has to be done with caution that the court has a duty to hear all parties and determine the case on merit. In addition, this court has also a duty to safeguard itself against abuse of its process.” (Own emphasis)

12. The Court of Appeal in Nitin Properties Ltd v Singh Kalsi & another[1995] eKLR also captured this legal principle when it stated as follows:-“A preliminary objection 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.”

13. In JSK v WKW[2019] eKLR court observed that:-“For a preliminary objection to succeed the following tests ought to be satisfied: Firstly, it should raise a pure point of law; secondly, it is argued on the assumption that all the facts pleaded by the other side are correct; and finally, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A valid preliminary objection should, if successful, dispose of the suit.(own emphasis)

14. In this matter the respondent has argued that the originating summons filed by the applicant contravenes section 7 of the Matrimonial Property Act which provides as follows:-“Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved”. (own emphasis)

15. The respondent has claimed that the marriage between the parties was still subsisting. This in my view is not a point of law, which would determine the entire suit. The question of whether or not a marriage still subsists between the parties is a question of fact, which would require the calling of evidence to determine. Therefore, the basis of this preliminary objection is not sound.

16. I have perused the originating summons dated June 6, 2016. Contrary to allegations made by the respondent find that the prayers sought therein are both specific and clear. The applicant is clearly seeking declaratory orders in respect of the Matrimonial Properties.

17. Section 17 of the Matrimonial Properties Act provides as follows:-“(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”. (Own emphasis)

18. Therefore under section 17 a spouse or former spouse may file an application seeking declaratory orders in respect of matrimonial property.

19. In the case of EWM v MWM [2020] eKLR a case on all fours with the present case the Court of Appeal in overturning a ruling on a similar notice of preliminary premised on the grounds that the parties had not divorced, stated as follows:-“Section 17 of the Act the court is not limited in respect to the declaration of rights of a spouse’s interest in matrimonial property........a plain reading of section 17 enables a spouse, subsistence of a marriage notwithstanding, to made an application for declaratory orders. It further states that an application may be made as part of a petition in a matrimonial cause and notwithstanding that a petition has not been filed under any law relating to a matrimonial causes. It is our opinion that the divorce cause does not prevent a party from bringing an action for declaration of rights to property in the High Court under section 17 of the Act.” (own emphasis)

20. Finally based on the foregoing I find no merit in the preliminary objection dated November 10, 2019. The same is dismissed in its entirety and costs are awarded to the Applicant.

DATED IN NAIROBI THIS 7TH DAY OF OCTOBER, 2022. …………………………………..MAUREEN A. ODEROJUDGE