[2019] KEHC 10801 (KLR)
The court held that since the original divorce judgment did not make findings on the matrimonial properties due to lack of specific identification in the pleadings, and given the current disagreement on acquisition and division, it is not possible to determine the property issues within the divorce cause. The court...
Source-derived case information.
- Citation
- [2019] KEHC 10801 (KLR)
- Parties
- Applicant: MNN; Respondent: JNM
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 37 of 2010
- Procedural Posture
- Divorce Cause / Ruling on Post Judgment Application for Transfer of Matrimonial Property
- Outcome
- Application dismissed; parties directed to file a separate suit for division of matrimonial property.
- Judges
- A Ali-Aroni
- Legal Topics
- Matrimonial Property, Division of Assets, Post Divorce Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
MNN
Applicant
JNM
Respondent
Procedural Posture
Divorce Cause / Ruling on Post Judgment Application for Transfer of Matrimonial Property
Legal Issues
- 1 Whether the High Court can order transfer of specified matrimonial properties in the divorce cause without a separate matrimonial property suit.
- 2 Whether the properties in question were sufficiently identified and agreed upon for division or transfer.
- 3 Whether the court can determine ownership and division of matrimonial property in the absence of consensus and evidence.
Ratio Decidendi
The court held that since the original divorce judgment did not make findings on the matrimonial properties due to lack of specific identification in the pleadings, and given the current disagreement on acquisition and division, it is not possible to determine the property issues within the divorce cause. The court emphasized that proper determination of ownership and division of matrimonial property requires a separate suit where evidence and documentation can be presented. Therefore, the parties must file a separate cause for division of matrimonial property, as the divorce cause cannot attract two judgments or adequately ventilate the pending property issues.
Court Disposition
Application dismissed; parties directed to file a separate suit for division of matrimonial property.
Orders
- Parties are directed to move the court for division of matrimonial properties under a separate cause for consideration.
- No order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 37 OF 2010
BETWEEN
MNN .................................PETITIONER
AND
JNM..................................RESPONDENT
RULING
1. Before court is an application by the Petitioner (wife) dated 5th March 2018 seeking for transfer of ownership of 3 properties namely:
a. Title No. Ngong/Ngong/[...]
b. Title No. [...]Koibarak
c. Plot No. [...] Eldoret (Kapsoya)
2. The application is based on grounds that: the judgment dated 25th November, 2016 directed that the properties be listed; and further, that the Respondent had consented to transfer the same.
3. In an affidavit in support, the Applicant reiterated her grounds and further added that it will save costs, if the issue of the properties was dealt with in this cause. In the same affidavit the Applicant deponed that she contributed to the purchase of Title No. […] Koibarak and solely purchased Plot No. […] Eldoret (Kapsoya) farm.
4. On his part the Respondent filed a replying affidavit and was of the view that the court ought to determine the issue on the matrimonial properties which he stated were obtained through joint effort of the parties. Further he stated that Title No. […] Koibarak is ancestral land and the Applicant did not purchase or contribute towards purchase of the same, as relates to Plot […] Eldoret and Ngong/Ngong/[…] the Respondent stated that he is willing to share the same equally as he alleges that the same were acquired with their joint efforts.
5. Though both parties alluded to the existence of matrimonial properties the Judge (Musyoka J) in his judgment made no findings as relates to the said assets and directed the parties move the court appropriately or apply for division of the same in a matrimonial cause for the reason that the pleadings did not specifically identify the said properties.
6. Though the applicant has now specifically described the properties there is a disagreement on how the same were acquired, and no consensus on division of the same between the parties.
7. It is my view therefore, that in the prevailing circumstances, and in the interest of justice it is necessary for the court to receive evidence and have placed before it documents if any to enable the court make appropriate orders. Though it may save costs it will not be possible to ventilate pending issues in this cause as the cause cannot attract two judgments.
8. Parties are therefore directed in the circumstance to move the court for division of matrimonial properties under a separate cause for consideration.
9. No order as to costs.
DATED, SIGNEDandDELIVEREDat NAIROBI this 17th DAY OF JANUARY, 2019.
..........................
ALI-ARONI
JUDGE
In the presence of:
Petitioner.......................................................................................
Respondent...............................................................................…..