[2013] KEHC 6481 (KLR)
The court found that the suit was not presented in the proper form as required for matrimonial property disputes, which should be commenced under Section 17 of the Married Women's Property Act, 1882, by Originating Summons. However, to prevent hardship to the plaintiff and preserve the subject matter, the court...
Source-derived case information.
- Citation
- [2013] KEHC 6481 (KLR)
- Parties
- Plaintiff: P O M; Respondent: M N K alias M N P
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 6 of 2012
- Procedural Posture
- Civil Application / Ruling on Interlocutory Motion
- Outcome
- Application dismissed for want of proper procedure, but temporary preservatory orders granted for 30 days.
- Judges
- DN Musyoka
- Legal Topics
- Matrimonial Property Disputes, Joint Ownership, Injunctive Relief, Procedure Under Married Womens Property Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
P O M
Plaintiff
M N K alias M N P
Respondent
Procedural Posture
Civil Application / Ruling on Interlocutory Motion
Legal Issues
- 1 Whether the suit was properly instituted under the correct procedure for matrimonial property disputes.
- 2 Whether the applicant is entitled to preservatory orders pending regularization of the suit.
Ratio Decidendi
The court found that the suit was not presented in the proper form as required for matrimonial property disputes, which should be commenced under Section 17 of the Married Women's Property Act, 1882, by Originating Summons. However, to prevent hardship to the plaintiff and preserve the subject matter, the court granted temporary preservatory orders restraining the respondent from alienating the property for 30 days, within which the plaintiff must regularize the proceedings by filing the claim in the correct form. The court thus balanced procedural propriety with the need to prevent injustice.
Court Disposition
Application dismissed for want of proper procedure, but temporary preservatory orders granted for 30 days.
Orders
- Plaintiff granted 30 days to regularize the suit by filing an application under Section 17 of the Married Women's Property Act, 1882, in the form of an Originating Summons.
- Temporary preservatory orders in terms of prayer 2 of the Motion granted for 30 days.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
HIGH COURT CIVIL CASE (OS) 6 OF 2012
P O M.......................................................PLAINTIFF
VERSUS
M N K
alias M N P......................................RESPONDENT
RULING
The Motion dated 25th July 2012 seeks several orders relating to Plot No. (particulars withheld) within (particulars withheld). The applicant would like the respondent restrained from alienating the said property, the appointment of a receiver to manage the property and to collect revenue, a sum of Kshs.60,000. 00 to be paid to each of the parties and an order for deposit in court of the rents collected between September 2011 and the date of the ruling in this application in court. The application is brought in a suit, commenced by way of plaint, praying in the main for a declaratory order that Plot No. (particulars withheld) within (particulars withheld) was jointly owned in equal shares by the plaintiff and the defendant.
For all purposes this is a suit that should have been brought under Section 17 of the Married Women's Property Act, 1882, by way of Originating Summons. That is the procedure prescribed for suits of this nature. I note that although the plaintiff acknowledges that the parties did not go through any form of marriage ceremony, they were for all purposes a married couple. It is on that score that there is pending at the magistrates' courts a divorce cause for dissolution of the union, being Nairobi CMCDC No. 454 of 2011.
The matter before me has not been presented in proper form. I am therefore unable to entertain the Motion dated 25th July 2012. I will allow the plaintiff thirty (30) days to regularize the position by filing the claim in proper form in this cause. That is to say by lodging an application under Section 17 of the Married Women's Property Act, 1882, in the form of an Originating Summons. This will facilitate the disposal of the matter in the usual manner.
However, as the court is seized of the matter, and to avoid hardship to the plaintiff, even as he seeks to regularise his position, I hereby grant temporary preservatory orders in terms of prayer 2 of the Motion to last for 30 days.
It is so ordered.
SIGNED DATEDandDELIVEREDin open court this 15thday of August, 2013.
W.M. MUSYOKA
JUDGE