[2015] KEELC 187 (KLR)
The court found that the defendant's assertion of marriage was not supported by any evidence or documentation in the pleadings or filed documents. The plaintiff described the defendant as a lover, not a husband, and the reliefs sought pertained to a declaration of trust and an injunction over land, not to the...
Source-derived case information.
- Citation
- [2015] KEELC 187 (KLR)
- Parties
- Plaintiff: M Z; Defendant: O A
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 146 of 2013
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Jurisdiction
- Outcome
- preliminary objection dismissed
- Judges
- AA Omollo
- Legal Topics
- Jurisdiction of Eland Court, Preliminary Objection, Resultant Trust, Matrimonial Property Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M Z
Plaintiff
O A
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Jurisdiction
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to determine the dispute given the defendant's claim of marriage and matrimonial property.
- 2 Whether the defendant's assertion of marriage, unsupported by evidence, can oust the court's jurisdiction.
- 3 Whether the orders sought by the plaintiff relate to matrimonial property or to a trust over land.
Ratio Decidendi
The court found that the defendant's assertion of marriage was not supported by any evidence or documentation in the pleadings or filed documents. The plaintiff described the defendant as a lover, not a husband, and the reliefs sought pertained to a declaration of trust and an injunction over land, not to the division or management of matrimonial property. The court held that the mere allegation of marriage, without proof or proper pleading, does not oust the jurisdiction of the Environment and Land Court. Jurisdiction can only be ousted by clear legal provisions, which were not provided by the defendant. Therefore, the preliminary objection lacked merit and was dismissed.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ENVIRONMENT AND LAND CASE NO. 146 OF 2013
M Z..................................................................................PLAINTIFF
-VERSUS-
O A...............................................................................DEFENDANT
RULING
1. This is a ruling on the preliminary objection raised questioning the jurisdiction of this Court to entertain this matter. The defendant submits that they were married with the plaintiff and therefore the land in dispute is a matrimonial property. The plaintiff on her part submits this Court had jurisdiction as this Court has powers to determine disputes on use and occupation to land. The plaintiff urged the Court to find there is a resultant trust and that there is no evidence of marriage. That the issue of marriage is factual and you have to determine under what legal system it was done. She urged the Court to dismiss the objection.
2. This Court is alive to the legal provision set out in the renowned case of Lilian S that without jurisdiction this Court should not move an inch further with the case. Secondly this Court is alive to the principle of law that parties are bound by their pleadings. This was the holding of the Court of Appeal in the recent case of Ali Mbwana & 11 others vs Mohamed Ali Askul (2015) eKLR. In the plaint before Court, the plaintiff has described the defendant as her lover not husband. In the prayers contained in the plaint, the plaintiff prays for
a) a declaration that the defendant holds the property being plot No Kwale/Ukunda/[particulars withheld] in trust for the plaintiff and the defendant to transfer the plot to the plaintiff
b) A permanent injunction
3. In the statement of defence filed at paragraph 5(ii) the defendant pleaded that the plaintiff is married to him. Besides this averment, there is nothing in the body of the defence giving details of this marriage. I have also perused the list of documents filed by the defendant and find none listing the issue on marriage. It is therefore right for the plaintiff to submit that the marriage alluded to by the defendant is an issue of fact which then cannot oust jurisdiction of this Court. The jurisdiction of the Court can only be ousted by legal provisions and in this case, none has been provided.
4. Lastly, the orders sought by the plaintiff in her pleadings does not touch on the manner on how to deal with matrimonial property. Since it is the plaintiff's case, the defendant cannot change the course of her intention unless the defendant counter – claimed. In the result, I find no basis for the preliminary objection and hereby dismiss it.
Ruling Dated and Delivered at Mombasa this 18th day of September, 2015
A. OMOLLO
JUDGE