[2014] KEHC 698 (KLR)
The court found that the counterclaim by the defendant was not sustainable against the named respondents, as the dispute over matrimonial property is properly between husband and wife, not third parties. Furthermore, the court found no material evidence upon which to grant the orders sought in the counterclaim. As a...
Source-derived case information.
- Citation
- [2014] KEHC 698 (KLR)
- Parties
- Petitioner: N W; Respondent: Housing Finance Ltd; Respondent: Kenya Building Society Ltd.; Respondent: Taifa Auctioneers; Respondent: Christopher Avisa; Respondent: KCB Ltd, Cleophas Ogutu & Others; Defendant: M M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 17 & 3 of 2001
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- counterclaim dismissed
- Judges
- DN Musyoka
- Legal Topics
- Matrimonial Property, Counterclaim Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
N W
Petitioner
Housing Finance Ltd
Respondent
Kenya Building Society Ltd.
Respondent
Taifa Auctioneers
Respondent
Christopher Avisa
Respondent
KCB Ltd, Cleophas Ogutu & Others
Respondent
M M
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the counterclaim by the defendant against the named respondents is sustainable in a matrimonial property suit.
- 2 Whether there is sufficient material to grant the orders sought in the counterclaim against the respondents.
Ratio Decidendi
The court found that the counterclaim by the defendant was not sustainable against the named respondents, as the dispute over matrimonial property is properly between husband and wife, not third parties. Furthermore, the court found no material evidence upon which to grant the orders sought in the counterclaim. As a result, the counterclaim was dismissed, and no order as to costs was made.
Court Disposition
counterclaim dismissed
Orders
- The counterclaim is dismissed.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 17 & 3 OF 2001
N W…………………………...…..…………………PETITIONER
HOUSING FINANCE LTD………..…….1ST RESPONDENTS
KENYA BUILDING SOCIETY LTD.…..2ND RESPONDENTS
TAIFA AUCTIONEERS…………..……3RD RESPONDENTS
CHRISTOPHER AVISA………..….…4TH RESPONDENTS
KCB LTD, CLEOPHAS OGUTU & OTHERS….5TH RESPONDENTS
-VERSUS-
M M…………………….……….DEFENDANT/APPLICANT
JUDGEMENT
This matter came up for hearing on 11th July 2014 when Mr. Mungai, the applicant, testified in support of his counterclaim.
He stated that the issues outstanding in the counterclaim were not between him and his estranged wife but rather between him and the persons he has named in the suit as co-respondents. These are persons who are essentially third parties to a division of matrimonial property suit, which is basically a suit between husband and wife.
I have carefully perused through at the papers filed herein, and considered the testimony given by Mr. Mungai on 11th July 2014. I do not find material upon which I can grant the orders sought against the respondents named in the counterclaim. Consequently, I do hereby dismiss the counterclaim. There shall be no order as to costs.
DATED, SIGNED and DELIVERED at NAIROBI this 19th DAY OF December 2014.
W. MUSYOKA
JUDGE
In the presence of Mr. Mungai the defendant in person.