[2007] KEHC 1179 (KLR)
The court determined that, since there is a pending application before the Court of Appeal seeking clarification on the method of apportionment of the matrimonial property, it is appropriate to stay the defendant's application for release of the title deed. This ensures that the appellate process is not rendered...
Source-derived case information.
- Citation
- [2007] KEHC 1179 (KLR)
- Parties
- Plaintiff: PNE; Defendant: PME
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 4684 of 1987
- Procedural Posture
- Civil Case / Ruling on Directions and Stay Pending Appeal
- Outcome
- Application for release of title deed stayed pending outcome of Court of Appeal application.
- Legal Topics
- Matrimonial Property Division, Land Subdivision, Appeal Procedure, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
PNE
Plaintiff
PME
Defendant
Procedural Posture
Civil Case / Ruling on Directions and Stay Pending Appeal
Legal Issues
- 1 Whether the application by the defendant/husband to compel release of the title deed should be granted pending clarification from the Court of Appeal.
- 2 Whether the matter should be handled by the Family Division as a matrimonial cause.
- 3 How the apportionment and subdivision of matrimonial property should be executed in light of the pending appeal.
Ratio Decidendi
The court determined that, since there is a pending application before the Court of Appeal seeking clarification on the method of apportionment of the matrimonial property, it is appropriate to stay the defendant's application for release of the title deed. This ensures that the appellate process is not rendered nugatory and that the division of property is executed in accordance with the final appellate determination. The court also held that, as the matter concerns matrimonial property, the file should be managed by the Family Division. Costs are to be in the cause.
Court Disposition
Application for release of title deed stayed pending outcome of Court of Appeal application.
Orders
- This is a matrimonial cause and the file should be placed before the Family Division.
- The application dated 24 September 2007 is stayed under section 6 Civil Procedure Act pending the Court of Appeal application by the plaintiff/wife.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
CIVIL CASE 4684 OF 1987
1. Land and Environmental Law Division
2. Subject of main suit: Land/matrimonial property LR No.xxxx Tigoni 110 acres
Finalized 27. 10. 93 by Shields J ruling that matrimonial property be divided in equal share.
ii) Appeal to court of appeal five judges.
Tunoi, Okubasu, Githinji Waki Deverell JJA
Appeal allowed instead of 50% share to ¾ to ¼ shares appellant to transfer 25 acres.
Sub-division and transfer share be paid equal.
3. Civil Practice and Procedure – Directions of court.
a) The original defendant/husband prayers that title deed be released to him to transfer 25 acres – 24 September 2007.
b) Original plaintiff/wife objects as she has filed application to court of appeal to clarify method of apportion.
c) Directions
i) This is a matrimonial cause and file should have been before the Family Court Division.
ii) That the original wife plaintiff has filed application seeking directions of exact manner of sub-division.
iii) That application of 24 September 2007 be stayed under section 6 Civil Procedure Act pending Court of appeal application by plaintiff/wife.
iv) That this file at all times be placed before the Family Division.
4. Case law:-
a) PNE v PME
Hccc4684/87, Shields J.
b) PME v PNE Ca 75/01
(Tunoi, Okubasu, Githinji , Waki, Deverell JJA)
5. Advocates:
A. Njoroge of Njoroge A. & Co. Advocates for the plaintiff/respondent - present
B. Nganga holding for Kamau Kuria of Kamau Kuria & Co. Advocates for the defendant/applicants – present
PNE..................... PLAINTIFF
VERSUS
PME.....................DEFENDANT
RULING
1: Directions of the court.
I: PNE and PME began this suit involving matrimonial property after the two were divorced in 1987. Shields J held that the matrimonial property consisting of Land LR No.xxxxTigoni 110 acres be divided amongst the couple in equal shares following the Kivuitu v Kivuitu (1991) 2 – KAR 241 on 27 October 1993 equally.
2. The original defendant/husband appealed to the court of appeal. A five bench was set up whereby they overruled the decision of Kivuitu v Kivuitu supra and award to the husband ¾ and the wife ¼ of share of the property instead of 50% each. They awarded the costs of conveying and transfer to be paid equally amongst the two at 50%.
3. The defendant husband filed an application dated 24 September 2000 seeking orders to compel the wife/plaintiff to release the title deed. Before the application was heard the wife/plaintiff informed the court that there is pending an application to the court of appeal to be able to clarify the method of apportionment first. She sought the courts directions.
4. The direction of the court are:-
i) That this is a matrimonial cause concerning property. The file at all times should be placed before the family court Division.
ii) As the wife/plaintiff is before the Court of Appeal this court stays the application of 24 September 2007 under section 6 Procedure Act pending the court of appeal application by plaintiff wife.
iii) There will be costs in the cause.
Dated this 13th day of November 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
A. Njoroge of Njoroge A. & Co. Advocates for the plaintiff/respondent - present