[2010] KEHC 3099 (KLR)

[2010] KEHC 3099 (KLR)

The court held that Section 17 of the Married Women's Property Act, 1882 is limited to disputes strictly between husband and wife regarding property held by either spouse or certain entities. Since the property in question had already been sold to the 2nd defendant, the dispute was no longer solely between the spouses. The inclusion of the 2nd and 3rd defendants as parties was therefore improper and incompetent. The correct procedure for the plaintiff would have been to seek an account of the proceeds from her husband alone, not to challenge the conveyance to third parties under Section 17. Consequently, the preliminary objection was upheld and the originating summons was struck out as...

Citation
[2010] KEHC 3099 (KLR)
Parties
Plaintiff: Phoebe Nyakinga Kibiru; Defendant: Godfrey Kibiru Gichuki; Defendant: Anthony Nderitu Munyua; Defendant: Rohi Children’s Organisation
Court
High Court
Court Station
High Court at Nakuru
Jurisdiction
Kenya
Judgment Date
5 February 2010
Case Number
Civil Suit 164 of 2007
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Outcome
originating summons struck out with costs to the respondent
Judges
MJA Emukule
Legal Topics
Matrimonial Property, Preliminary Objection, Joinder of Parties, Trusts in Marriage
Source Language
English
Family and Children Civil Procedure Matrimonial Property Preliminary Objection Joinder of Parties Trusts in Marriage

Case Brief

Summary, issues, holding and outcome

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Parties

Phoebe Nyakinga Kibiru

Plaintiff

Godfrey Kibiru Gichuki

Defendant

Anthony Nderitu Munyua

Defendant

Rohi Children’s Organisation

Defendant

Procedural Posture

Civil Suit / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether an originating summons under Section 17 of the Married Women's Property Act, 1882 can be used to determine disputes involving third parties beyond the husband and wife.
  2. 2 Whether the plaintiff, as a non-party to the conveyance, can challenge the sale of matrimonial property to third parties via originating summons.
  3. 3 Whether the joinder of the 2nd and 3rd defendants was proper in a matrimonial property dispute under Section 17.

Ratio Decidendi

The court held that Section 17 of the Married Women's Property Act, 1882 is limited to disputes strictly between husband and wife regarding property held by either spouse or certain entities. Since the property in question had already been sold to the 2nd defendant, the dispute was no longer solely between the spouses. The inclusion of the 2nd and 3rd defendants as parties was therefore improper and incompetent. The correct procedure for the plaintiff would have been to seek an account of the proceeds from her husband alone, not to challenge the conveyance to third parties under Section 17. Consequently, the preliminary objection was upheld and the originating summons was struck out as...

Court Disposition

originating summons struck out with costs to the respondent

Orders

  • The preliminary objection is upheld.
  • The Originating Summons dated 23rd July 2007 is struck out.