[2016] KEHC 1702 (KLR)

[2016] KEHC 1702 (KLR)

The court held that the Matrimonial Property Act does not prescribe a specific procedure for instituting claims regarding matrimonial property. In the absence of such prescription, litigants cannot be faulted for commencing proceedings by originating summons. The use of originating summons is not expressly prohibited, and courts have previously accepted this procedure in similar matters. The applicant's apprehension of prejudice is unfounded, as the court is obligated to hear both parties and ensure a fair process. Further, Article 159(2)(d) of the Constitution requires courts to administer justice without undue regard to procedural technicalities. Therefore, the preliminary objection,...

Citation
[2016] KEHC 1702 (KLR)
Parties
Applicant: MMM; Respondent: LOO
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
31 October 2016
Case Number
Matrimonial Case 6 of 2016
Procedural Posture
Matrimonial Cause / Ruling on Preliminary Objection
Outcome
preliminary objection overruled
Judges
MW Muigai
Legal Topics
Matrimonial Property Procedure, Originating Summons, Preliminary Objection, Access to Justice
Source Language
English
Family and Children Civil Procedure Matrimonial Property Procedure Originating Summons Preliminary Objection Access to Justice

Case Brief

Summary, issues, holding and outcome

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Parties

MMM

Applicant

LOO

Respondent

Procedural Posture

Matrimonial Cause / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether proceedings under the Matrimonial Property Act must be instituted by plaint or may be commenced by originating summons.
  2. 2 Whether the use of originating summons in matrimonial property disputes is procedurally defective under current Kenyan law.
  3. 3 Whether the absence of prescribed procedure in the Matrimonial Property Act invalidates proceedings commenced by originating summons.

Ratio Decidendi

The court held that the Matrimonial Property Act does not prescribe a specific procedure for instituting claims regarding matrimonial property. In the absence of such prescription, litigants cannot be faulted for commencing proceedings by originating summons. The use of originating summons is not expressly prohibited, and courts have previously accepted this procedure in similar matters. The applicant's apprehension of prejudice is unfounded, as the court is obligated to hear both parties and ensure a fair process. Further, Article 159(2)(d) of the Constitution requires courts to administer justice without undue regard to procedural technicalities. Therefore, the preliminary objection,...

Court Disposition

preliminary objection overruled

Orders

  • The Notice of Preliminary Objection dated 7th April, 2016 is overruled.
  • Each party shall bear its own costs of the application.