[2025] KEHC 9204 (KLR)

[2025] KEHC 9204 (KLR)

The court found that the respondent's preliminary objection, which challenged the court's jurisdiction on the basis that no marriage existed between the parties, could not be determined as a pure point of law. The existence of a marriage under Kikuyu Customary Law and the status of the property as matrimonial...

Source-derived case information.

Citation
[2025] KEHC 9204 (KLR)
Parties
Applicant: MM; Respondent: FNG
Court
High Court
Court Station
High Court at Kiambu
Jurisdiction
Kenya
Judgment Date
10 April 2025
Case Number
Family Originating Summons E003 of 2024
Procedural Posture
Family Originating Summons / Ruling on Preliminary Objection
Outcome
preliminary objection dismissed; main suit to proceed
Judges
DO Chepkwony
Legal Topics
Matrimonial Property, Customary Marriage, Jurisdiction of Family Court, Preliminary Objection, Cohabitation Rights
Source Language
english
Family and Children Land and Property Matrimonial Property Customary Marriage Jurisdiction of Family Court Preliminary Objection Cohabitation Rights

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Summary, issues, holding and outcome

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Parties

MM

Applicant

FNG

Respondent

Procedural Posture

Family Originating Summons / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the High Court has jurisdiction to determine issues relating to matrimonial property where the existence of a marriage under customary law is disputed.
  2. 2 Whether the preliminary objection raises a pure point of law or requires determination of factual issues.
  3. 3 Whether the applicant is entitled to interim protection from eviction pending determination of the main suit.

Ratio Decidendi

The court found that the respondent's preliminary objection, which challenged the court's jurisdiction on the basis that no marriage existed between the parties, could not be determined as a pure point of law. The existence of a marriage under Kikuyu Customary Law and the status of the property as matrimonial property are factual matters that require evidence and cannot be resolved at the preliminary stage. Therefore, the preliminary objection lacked merit and was dismissed, allowing the main suit to proceed to hearing on its merits. The court also extended interim orders protecting the applicant from eviction pending the determination of the originating summons.

Court Disposition

preliminary objection dismissed; main suit to proceed

Orders

  • The Notice of Preliminary Objection is dismissed with costs to the applicant.
  • The parties to proceed with the hearing of the Originating Summons dated 23rd January, 2024.