[2017] KEHC 3270 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 24 OF 2013 (OS)

IN THE MATTER OF DIVISION OF MATRIMONIAL PROPERTY

AND

IN THE MATTER OF SECTION 17 OF THE MARRIED WOMEN’SPROPERTY ACT (1882)

P N……………..…APPLICANT

-VERSUS-

J N……….…..…RESPONDENT

R U L I N G

1. By a Notice of Motion dated 10th April, 2017 brought under Section 18of theMatrimonial Property Act, 2013, Section 3Aof theCivil Procedure Act, Order 8 rule 7and Order 51 Rule 1of theCivil Procedure Rules 2010 the Applicant sought orders that leave be granted to amend her application dated 8th May 2013 filed in this court under the Married Women’s Property Act (1882) (now repealed) and bring it under the Matrimonial Property Act, 2013. Further that the amended application as attached herein, be regarded as properly filed and the court be pleased to make such further orders as the interests of justice may require.

2. The application was based on grounds that it was filed under the Married Women’s Property Act (1882), which has since been repealed by the Matrimonial Property Act, 2013. That the said Act does not have transitional provisions allowing the cases already filed under the repealed Married Women’s Property Act (1882) to proceed as if filed under the Matrimonial Property Act, 2013. That the interests of the parties herein as previously provided for and safeguarded under the now repealed Married Women’s Property Act (1882) are still provided for and safeguarded under the Matrimonial Property Act, 2013. That the application dated 8th May 2013 will not prejudice any of the parties and it would be fair and just for the amendments to be allowed.

3. M/s. Koech learned counsel holding brief for Mr. Kiongera for the Applicant submitted that the Applicant’s wishes were that the property that was left out of the original, Originating Summons be detailed. He relied on the affidavit of Mr. Kiongera sworn on the 10th April 2017 in which he deposed that the amendment will not prejudice any of the parties and secondly that it is in the interest of justice that all the property of the parties be detailed.

4. Counsel urged that the Applicant wished to bring the Originating Summons under the Matrimonial Act 2013 since it was previously filed under the Married Women’s Property Act. She urged the court to allow the application so that parties can deal with the merits of the case.

5. Mr. Njuguna Learned Counsel for the Respondent opposed the application on grounds that the leave the Applicant seeks to amend the originating Summons to bring it in line with the Matrimonial Act, was already granted on 16th June 2016 by the court. That when the parties were last in court, the Respondent requested to see the amended Originating Summons to avoid an ambush as has happened now.

6. Counsel argued that the Notice of Motion dated 10th April 2017 is incompetent because it is titled “Amended Originating Summons” which had not yet been granted by the court. Prayer No. 2 was misleading since the Applicant requests the court to regard the attached amended Originating Summons as properly filed in court, yet the supporting affidavit to the amended OS has also been amended in contravention of the law. The amendment of a supporting affidavit cannot be done. One can only file a further or supplementary affidavit.

7. Counsel submitted that the Applicant was granted leave to file a supplementary affidavit o 19th February 2015, and they filed it on 3rd March 2015. He urged the court to strike out the OS and the supporting affidavit because they had introduced new evidence. He pointed out that on 30th March, 2017 the Applicant filed witness statements without leave of court yet anything filed after the close of pleadings should be with the leave of court. He urged the court to lift the temporary injunction as they await the hearing.

8. M/s. Koech in reply admitted that they had made an oral application for amendment that Mr. Njuguna had said he needed to respond thereto. She pointed out that Mr. Njuguna had no objection to the amendment and urged the court to consider Section 100of theCivil Procedure Code under which allows the court to allow amendments so that substantive issues can be addressed. That the interim orders were granted because the Respondent was threatening to seal the matrimonial home.

9. I have considered the application for leave and the response thereto and I am satisfied that it would be in the interest of justice to grant the orders sought. In the exercise of the inherent power of the court under Section 3A Civil Procedure Code I hereby grant the leave sought with the following orders, to bring the Originating Summons in line with the Matrimonial Act:

i. The amended Originating Summons is hereby deemed as having been properly filed.

ii. The amended supporting affidavit thereto is hereby struck out.

iii. The Petitioner to file and serve a supplementary affidavit within 14 days hereof.

iv. The Respondent shall have 14 days upon being served with the supplementary affidavit to file a further affidavit if need be.

v. Costs to be in the cause

It is so ordered.

SIGNED DATEDandDELIVEREDin open court this 3rd day of October, 2017.

………………………………

L. A. ACHODE

JUDGE

In the Presence of: ………….....…Counsel for the Applicant

In the Presence of: ……………Counsel for the Respondent

………………………….................…Counsel for the Applicant

In the Presence of: ……………Counsel for the Respondent