https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7607

PWT v BTK & 3 others (Matrimonial Cause E012 of 2025) [2026] KEHC 7607 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEHC 7607 (KLR) Republic of Kenya In the High Court at Nakuru Matrimonial Cause E012 of 2025 SM Mohochi, J May 15, 2026 Between PWT Applicant and BTK 1st Respondent JKT 2nd Respondent NN 3rd Respondent Agriculture Finance Corporation 4th Respondent Ruling 1.Before Court are three applications for determination. The first Application is the Notice of Motion Application dated 25th November, 2025 by the Applicant brought pursuant to Sections 6, 14 and 17 of the Matrimonial Property Act, Order 40 Rule 1, Order 50 Rule 1 and Section 1A and 1B of the Civil Procedure Act where in she seeks the following prayers:i.Spentii.Spentiii.That pending the hearing and determination of this matrimonial cause, the Defendants/ Respondents be restrained by way of an injunction by himself, his agents, employees and/or servants from selling, disposing off, leasing, charging, transferring and/or in any other way adversely dealing with the assets listed under paragraph (2) herein above to wita.L.R NO. Kajiado/Dalalekutuk/XXXX.b.L.R NO. XXXX(Eldoret Municipality I.no).c.L.R NO. Mau Sammit/Molo Block1/XXXX(Mutirithia).d.L.R NO. Mau Sammit/Molo Block1/XXXX(Mutirithia). 5e.L.R NO. Nakuru/ Baнаті/XXXX.f.L.R NO.XXXX/8 (I.R. XXXX).g.LR. NO.XXXX/145(I.R.XXXX).h.LR. NO.XXXX(Original No.678/1) (I.R NO.1XXXX91 also known as Beta Farmi.LR. NO.XXXX/2(Eldoret Municipality)j.L.R NO. XXXX/13 situated at Red Hill-Kiambu.iv.That costs of this application be provided for. 2.It is the Applicant’s case that she got married to the 1st Respondent under Kikuyu Customary Laws and together they had one issue. That she met the Respondent without any matrimonial possession and during the coverture they acquired the listed properties through their joint efforts but were registered in the name of the 1st Respondent. 3.That the 1st Respondent has physical and exclusive possessions of all the properties and is enjoying the income generated from the rental property exclusively to her detriment. She deposed that there is a real threat of adverse dealing unless this Court intervenes as follows: -a.That on or around the 8th February, 2022, the 1st Respondent unilaterally and without her consent, transferred L.R NO.XXXX/8 (I.R. XXXX) to the 2nd Respondent.b.On the 4th April, 2022, 2nd Respondent, in collusion with the 1st Respondent, obtained a loan facility from the 4th Respondent in the manner and terms only known to them and used the title document for L.R NO.XXXX/8 (I.R. XXXX) as collateral and the said title is still in the custody of the 4th Respondent to date to the detriment.c.It was through her advocates on record vide letter dated 9th November, 2022 that stopped the 1st and 2nd Respondent from creating a further charge.d.That the Applicant the Plaintiff has reliable information that the 2nd Respondent, in collusion with the 1st Respondent, is in the process of discharging for purposes of sale to finance his intended trip abroad and should the said intentions realized, the Applicant shall be greatly prejudiced.e.That the 1st Respondent, without the consent of the Applicant herein, registered L.R NO. Kajiado/Dalalekutuk/XXXX in his joint name with the 3rd Respondent notwithstanding that the said property is a matrimonial property, acquired through their joint efforts. 4.She deposed that the properties have been transferred to 3rd Parties and she is apprehensive that the 1st Respondent by himself on in collusion with the 2 - 4th Respondents will adversely deal with the properties. 5.That she has a prima facie case with very high chances of success and stands to suffer irreparable harm and loss unless the orders sought are granted. That the Respondents will not be prejudiced in any manner should this Court grant the orders sought herein. 1st and 2nd Respondent’s Case 6.The 1st Respondent by way of Replying Affidavit sworn on 16th March, 2026 opposed the Application and deponed that he has never been married to the Applicant. That she surrendered their daughter Naomi Wangui to him and his wife Dorcas Wairigia Thiru who raised the child and educated her. That the Applicant did not contribute in acquisition or development of any of the listed properties as some of the properties were acquired when she was still a child and more than a decade before they met. 7.The second Application is the one dated 17th December, 2025 by the 1st Respondent brought pursuant to Section 7 of the Matrimonial Property Act, Rules 5, 7 and 20 of the Matrimonial Property Rules and Order 2, Rule 15 of the Civil Procedure Rules to which he seeks that the suit by way of the Originating Summons and the Notice of Motion Application both dated 25th November, 2025, be struck out with costs. 8.The 1st Respondent states that he has the authority of the 2nd Respondent who is his son with his second wife. He asserts that he is married to two women, Dorcas Warigia Thiru and Eunice Wanja Thiru. 9.He acknowledges that in the years 1982 and 1983, he had a brief romantic relationship with the Applicant. From that relationship they had a daughter, Naomi Wangui Thiru, who is now 42 years old. He states that he lived with his daughter and raised her, but emphasizes that he has never lived with the Applicant as husband and wife, nor has there ever been a customary marriage between them. 10.That the Applicant’s affidavits dated 25th November, 2025 in her attempt to claim his properties which she has no connection with are self-contradictory demonstrating lack of candour and her intention is to mislead the Court. 11.That the Applicant by approaching the Court under the Matrimonial Property Rules against her purported spouse even though she has no decree of dissolution, she has invoked jurisdiction which this Court does not possess in the circumstances, rendering the entire suit a nullity ab initio. That the orders sought contravene Section 7 of the Matrimonial Property Act and that there is no reasonable cause of Action to meet the legal pre-requisites. 12.He also states that the Applicant is scandalous and is abusing the process of Court to offend rather than prosecute any valid legal claim. 13.The Applicant opposed the Application by way of Replying Affidavit sworn on 2nd March, 2026. She deposes that Section 17 of the Matrimonial Property Act enables her, subsistence of a marriage notwithstanding, to make an application for declaratory orders and this Court has the jurisdiction to hear and determine the same. 3rd Respondent’s Case 14.The third Application is the one dated 6th March 2026 by the 3rd Respondent wherein she seeks that the Originating Summons suit and the Notice of Motion application both dated 25th November, 2025 insofar as they relate to the 3rd Respondent be struck out with costs. 15.It stated that Originating Summons do not disclose reasonable cause of action; the 3rd Respondent is not a spouse, the joiner is misconceived and illegally unsustainable and continued inclusion of the 3rd Respondent in the proceedings will occasion grave prejudice and amounts to an abuse of the Court process. 16.The 3rd Respondent further filed a Notice of Preliminary Objection dated 6th March 2026 in opposition to the Application dated 25th November 2025 in the following grounds: -i.That the Plaintiff has not established the existence of a valid marriage between herself and the 1st Defendant capable of grounding a claim under the Matrimonial Property Act, 2013.ii.That in the absence of proof of a valid marriage, the Plaintiff’s claim for declaration and preservation of matrimonial property is legally untenable and incompetent.iii.That the Originating Summons discloses no reasonable cause of action against the 3rd Defendant, who is a stranger to the alleged marriage.iv.That the suit as against the 3rd Defendant is misconceived, bad in law and an abuse of the Court process.v.That the 3rd Defendant has been improperly enjoined in proceedings arising out of an alleged matrimonial dispute between the Plaintiff and the 1st Defendant.vi.That the Originating Summons and Application as against the 3rd Defendant ought to be struck out with costs. 17.The Court directed that the Notice of Motion dated 10th March 2026 together with the Notice of Preliminary Objection dated 6th March 2026 was deemed as the response to the Applicant Originating Summons and Notice of Motion dated 25th November 2025. Applicant’s Submissions 18.The Applicant through her counsel on record filed written submissions dated 2nd March, 2026. She placed reliance in the case of AAK V PKW [2020] KECA 335 (KLR) to submit that she has sought declaration of rights under Section 17 of the Matrimonial Property Act and the 1st Respondent’s Application dated 17th December, 2025 is devoid of merit 19.As to whether the Applicant is entitled to the orders sought in the Application dated 25th November, 2025, she submits that she seeks to restrain any adverse dealing by the Respondents has satisfied the conditions precedent to warrant grant of the orders as was noted in Ali Kitsao Katana -V- Kassim Mohamed Omar & 5 Others [2018] eKLR, while quoting Giella -v- Cassman Brown & Co. Ltd [1973] EA 358. 20.On the condition of prima facie case with likelihood of success, it is submitted that the Plaintiff got married in the year 1973, had a daughter whom the Respondent does not deny and her national identity card bears the 1st Respondent’s name. That the properties are matrimonial property within the meaning of Section 6 of the Matrimonial Property Act and her interests and rights are protected pursuant to Section 14 of the Act. She relied on JWC v LKM [2017] eKLR, Naftali Ruthi Kinyua v Patrick Thuita Gachure & Another [2015] eKLR and BMM v EMM [2020] eKLR to submit that she has a prima facie case with high probability of success. 21.As regards irreparable damage it is submitted that having established a prima facie case, there are actual threats of adverse dealing with the suit properties and that the Applicant stands to suffer irreparable damage should this Honourable Court decline to grant the orders sought herein. 22.On balance of convenience, it is submitted that it tilts in favour of allowing the prayers sought for purposes of preserving the estate. 1st And 2nd Respondent’s Submissions 23.It is submitted that the Applicant’s application cannot pass the Giella v Cassman Brown test for the reason that:a.There are self-contradictory claims on when the purported marriage began and the circumstances under which the purported separation happened.b.The Applicant has not offered any evidence of contribution to the acquisition of the properties or their development as was held by the Court of Appeal in Resma Commercial Agencies v Ngattah (Suing as the Legal Representative of the Estate of Leah Wangui Ngata (Deceased)) & another (Civil Appeal 16 of 2019) [2025] KECA 2214 (KLR.c.Even if it were assumed, that the Applicant was married to the 1st Respondent and then she separated with him in 1994, there would be no conceivable substantive loss that she would suffer if the properties which she ‘left behind’ 32 years ago or which were yet to be acquired were alienated by the registered owners. Any loss could be adequately compensated by an award of damages.d.There is no evidence and even no claim that the Applicant contributed to the acquisition or was in occupation of any of the properties. 24.That AKK v PKW [2020] KECA 335 (KLR) was delivered before commencement of the Matrimonial Property Rules, 2022 and that this Court in considering matters of marriage can consider issues of matrimonial property, but in considering matrimonial property issues cannot consider issues of marriage. 25.It is argued that the Applicant does not invite this Court to determine or declare that there was a valid, legal, regular marriage in law; she wants the Court to proceed from the presumption that the marriage existed. 3rd Respondent’s Submissions 26.The 3rd Respondent filed written submissions dated 17th April, 2026. It is submitted that there is no cause of action as the cause is a matrimonial claim between the Applicant and the 1st Respondent which has been improperly extended to the 3rd Respondent who is neither a spouse nor a participant in the alleged matrimonial relationship. 27.She argues that the pleadings disclose no nexus between the alleged matrimonial claim and the 3rd Respondent’s proprietary interest in L.R. No. Kajiado/Dalalekutuk/XXXX protected under Section 26 of the Land Registration Act. That no fraud or fraudulent conduct has been attributable to the 3rd Respondent. 28.Further, that no irreparable harm has been demonstrated incapable of compensation by damages. Any claim arising from alleged matrimonial contribution is quantifiable and can be addressed between the Applicant and the 1st Respondent without interfering with third-party rights. That the 3rd Respondent stands to suffer substantial prejudice if her proprietary rights under Article 40 of the Constitutional are curtailed without lawful basis. 29.The 3rd Respondent relied on SMM v MWN (Matrimonial Case E002 of 2020) [2023] KEHC 1091 (KLR) to submit that that the Applicant seeks orders that would directly affect ownership and title to land. That pursuant to Article 162(2)(b) this Court, sitting as a Matrimonial Court, lacks jurisdiction to determine disputes relating to title as against third parties. 30.It is argued that the Applicant has not established the existence of a valid marriage capable of grounding a claim under the Matrimonial Property Act and relied in CWN v DK (Civil Suit 17 of 2017) [2021] KEHC 12535 (KLR) where the Court underscored the centrality of marriage to any claim for matrimonial property, Analysis and Determination 31.The following are the issues for determination:i.Whether this Court has jurisdiction to entertain this suitii.Whether the suit discloses a reasonable cause of action against the 3rd Respondent and whether the 3rd Respondent is properly enjoined.iii.Whether the Applicant has met the threshold for grant of interlocutory injunction.iv.Who bears the costs of the Application. Whether this Court has jurisdiction to entertain this suit 32.Jurisdiction is the lifeblood of a case and without it, the Court has no mandate to act and must “down its tools.” See Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) 33.The Supreme Court addressed the issue of jurisdiction in the case of Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] KESC 8 (KLR) as hereunder: -“(68)A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a Court or tribunal by statute law.” 34.The 1st Respondent has raised issues regarding whether this Court can make a determination on issues of marriage and the application of the Matrimonial Proceedings Rules 2022 as well as the Marriage Act. 35.At this stage, the Court is concerned only with interlocutory application and not the substantive suit. The 1st Respondent’s application seeks to dispose of the entire matter prematurely, which is impermissible at this stage. It denies the Applicant an opportunity to ventilate her case fully. 36.Pursuant to Rule 30 (1) (s) of the Matrimonial Property Rules this Court has the right to issue any order it deems just to grant. Matters such as contribution, validity of marriage and acquisition of matrimonial property if any, are substantive questions requiring evidence. They must therefore be reserved for determination at the full trial. 37.Looking at the provisions of Section 17 of the Matrimonial Property Act states that: -“(1)A person may apply to a Court for declaration of rights to any property that is contested between that person and a spouse.(2)An application under subsection (1) –(a)shall be made in accordance with such procedure as may be prescribed;(b)may be made notwithstanding that a petition has not been filed under any law relating to matrimonial causes.” 38.Statutory provisions are not read in isolation. Rules 5 and 7 of the Matrimonial Property Rules and Section 7 of the Matrimonial Property Act must be construed in harmony with Section 17 of the Matrimonial Property Act which confers jurisdiction upon the Court to make declarations regarding rights in matrimonial property. The Rules are procedural in nature designed to give effect to the substantive rights created under the Act. To interpret them separately would distort legislative intent and undermine the coherent application of the law. 39.Section 17 of the Matrimonial Property Act is framed in plain terms. It does not compel the Court to determine the dispute or issue declarations automatically. It merely provides that a spouse may institute proceedings seeking declaratory relief in respect of matrimonial property. As to whether the Applicant is a spouse or otherwise that is not for this juncture but the substantive suit. 40.The prayers sought in the Originating Summons inter alia seek declarations of interests in property. As to whether the properties may or may not be matrimonial property is held in abeyance till determination of the suit. 41.Therefore, this Court is properly seized of jurisdiction to entertain the present application and by extension, the main suit whose merits are left to be tested at the hearing. Its authority is not confined to the Matrimonial Proceedings Rules alone but extends to the wider statutory and constitutional framework governing matrimonial property disputes. Whether the suit discloses a reasonable cause of action against the 3rd Respondent and whether the 3rd Respondent is properly enjoined 42.The Court directed that the Notice of Motion dated 10th March 2026 together with the Notice of Preliminary Objection dated 6th March 2026 were deemed as the response to the Applicant’s Originating Summons and Notice of Motion dated 25th November 2025. Both raise issues on jurisdiction, validity of marriage, cause of action and joinder. 43.As to whether there is a valid marriage, that is a substantive issue requiring evidence and most likely a different forum and therefore cannot be resolved at this interlocutory stage without prematurely deciding the case. 44.As to whether there is a reasonable cause of action in this case, it is not in dispute that the 3rd Respondent is a co-owner of one of the listed properties L.R. No. Kajiado/Dalalekutuk/XXXX registered jointly on 6th March, 2013 with the 1st Respondent. 45.A cause of action is the legal ground upon which a person sues another. It arises when an act or omission by one party violates the rights of another creating a basis for the injured party to seek a remedy in Court. Without a valid cause of action, there is no right to institute proceedings See DT Dobie & Company (Kenya) Limited vs Joseph Mbaria Muchina [1980] KECA 3 KLR. 46.The dispute before this Court concerns matrimonial property between the Applicant and the Respondent. Any contest over acquisition or ownership interests in the land lies within the jurisdiction of the Environment and Land Court. The 1st Respondent has extensively submitted on there being a separate case of ownership in a different Court. 47.Further, from the material placed before the Court, it is evident that the Applicant has not shown how the 3rd Respondent acted in concert with the 1st Respondent to interfere with the property in dispute. No wrongful act, collusion or unlawful transfer has been demonstrated. Her position as co‑owner does not of itself create liability. Without proof of interference with the Applicant’s rights, the pleadings disclose no actionable claim against the 3rd Respondent. 48.This Court finds that the Applicant has failed to establish a valid cause of action against the 3rd Respondent. Whether the Applicant has met the threshold for grant of interlocutory injunction. 49.The principles that guide the grant of interlocutory injunction were famously distilled in East African Industries v Trufoods [1972] EA 420 and Giella v Cassman Brown & Co. Ltd [1973] EA 358. The same principles and the mode of their application were restated in the case of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] KECA 606 (KLR), as follows:“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;a.establish his case only at a prima facie level,b.demonstrate irreparable injury if a temporary injunction is not granted, andc.ally any doubts as to (b) by showing that the balance of convenience is in his favour.These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the Court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.” 50.These principles remain the governing framework ensuring that interlocutory relief is granted cautiously and without trespassing into the merits of the substantive suit. 51.On the question of a prima facie case, the Applicant relies on the existence of a marriage, a child shared between herself and the 1st Respondent and her national identity card bearing the 1st Respondent’s name. She also asserts that the 1st Respondent in cahoots with the other Respondents intend to alienate matrimonial property to her exclusion. It is further alleged that the 1st Respondent is solely collecting rent from the matrimonial properties. 52.The Applicant has not provided title documents for most of the listed properties. The allegation that the 1st Respondent is collecting rent has not been demonstrated by way of credible evidence like statements, location of these properties, amount of rent collected et al. Equally, the manner in which the 1st Respondent and the 2nd Respondent are said to have transferred property to third parties has not been established. It is not even clear who these third parties are. 53.Assertions and apprehensions, without cogent evidence fall short of establishing a prima facie case. The Court cannot restrain proprietary rights on conjecture. 54.The case of Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) defined what constitutes a prima facie case as follows:“So what is a prima facie case? I would say that in civil cases it is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 54.The Applicant has not demonstrated a recognizable legal right which have substantially been infringed or is under imminent threat. Even if it were to be assumed that the 1st Respondent is alienating matrimonial property or is collecting rent to the detriment of the Applicant lack of documentary proof or credible testimony cannot suffice to establish infringement of a legal right. 54.The Court is not persuaded that a prima facie case has been established. 54.Having so found, failure to surmount the first limb is fatal to the Application and the Court it need not belabour the other tests of irreparable injury and balance of convenience. The application for injunctive reliefs therefore collapses at the very first hurdle. 54.In the premises the Court makes the following orders: -a.The Application dated 25th November, 2025 is devoid of merit and is hereby dismissed with costs abiding by the outcome of the substantive suit.b.The Application dated 17th December, 2025 is without merit and is hereby dismissed. The costs shall abide the outcome of the substantive suit.c.Notice of Motion dated 10th March 2026 is allowed together with the Notice of Preliminary Objection dated 6th March 2026.d.The proceedings against the 3rd Respondent are hereby struck out with costs being borne by the Applicant.It is so ordered. SIGNED, DELIVERED VIRTUALLY ON TEAMS PLATFORMON THIS 15TH DAY OF MAY, 2026...............................MOHOCHI S.MJUDGE