[2014] KEHC 8395 (KLR)
The court found that it lacked jurisdiction to divide matrimonial property between spouses who are still in unbroken coverture, as the marriage had not been dissolved and no divorce had been granted. The applicant sought both a declaration of rights and division of property, but under both the repealed Married Women...
Source-derived case information.
- Citation
- [2014] KEHC 8395 (KLR)
- Parties
- Applicant: R N R; Respondent: A A R
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 49 of 2011
- Procedural Posture
- Originating Summons / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; suit dismissed for want of jurisdiction with costs to the respondent
- Judges
- AO Muchelule
- Legal Topics
- Matrimonial Property, Division of Property, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
R N R
Applicant
A A R
Respondent
Procedural Posture
Originating Summons / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court has jurisdiction to divide matrimonial property between spouses during unbroken coverture.
- 2 Whether the applicant is entitled to division of matrimonial property before dissolution of marriage.
Ratio Decidendi
The court found that it lacked jurisdiction to divide matrimonial property between spouses who are still in unbroken coverture, as the marriage had not been dissolved and no divorce had been granted. The applicant sought both a declaration of rights and division of property, but under both the repealed Married Women Property Act, 1882 and the current Matrimonial Property Act, 2013, division of matrimonial property is only available upon divorce or dissolution of marriage. The court relied on binding precedent and statutory interpretation to conclude that the application was premature and must be dismissed for want of jurisdiction.
Court Disposition
preliminary objection upheld; suit dismissed for want of jurisdiction with costs to the respondent
Orders
- The preliminary objection is allowed.
- The originating summons is dismissed for want of jurisdiction.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
CIVIL SUIT NO. 49 OF 2011 (OS)
IN THE MATTER OF DIVISION OF MATRIMONIAL PROPERTY
AND
IN THE MATTER OF SECTION 17 OF THE MARRIED WOMEN PROPERTY ACT (1882)
R N R………....……..………....APPLICANTS
VERSUS
A A R.......................... RESPONDENT
RULING
The applicant filed this originating summons under section 47of the Married Women Property Act (1882) seeking a declaration that the named properties are matrimonial property which should be valued and shared equally, or that, in the alternative, the properties be valued and sold and the proceeds shared equally between her and the respondent. The summons were against the respondent to whom she got married on 15th April 1972 at Githongo Methodist Church. The couple subsequently got four children. Her case was that although the said properties were registered in the name of the respondent they were acquired during the marriage and from joint contributions, and therefore that they were so registered to be held in trust to be held for her in equal share. She further stated that in 1991 the respondent abandoned the matrimonial home in Nairobi and went to stay in Meru from where he has been issuing eviction threats.
The respondent’s case is that the parties were still legally married and therefore the court has no jurisdiction to determine the summons. He filed a preliminary objection dated 27th January 2014 to have the summons dismissed with costs for want of jurisdiction since the parties herein are in unbroken coverture. This is the preliminary objection on which counsel for the parties addressed me. It is the subject of this ruling.
In my view, the point being raised is a pure point of law based on the ascertained fact that the parties are still married, but are only living apart. This is the situation contemplated by MUKISA BISCUIT MANUFACTURING LIMITED V. WEST END DISTRIBUTORS LIMITED [1969] EA 696.
The summons were filed under section 17 of the repealed Married Women Property Act (1882) for the division of matrimonial property. The objection was also brought under that repealed law. In PETER NDUNGU NJENGA V. SOPHIA WATIRI NDUNGU, Civil Appeal No. 2 of 2000 at Nairobi the Court of Appeal was dealing with a similar situation while interpreting section 17 of the Act when it held that:-
“We find and hold that learned judge had no jurisdiction to alienate suit lands between spouses during their lifetime or unbroken coverture and he ought to have dismissed the suit.”
In MNW v WNM & 3 OTHERS HCCC No. 46 of 2012 my brother Justice Musyoka was also dealing with a similar matter when he observed that:-
“The plaintiff in this suit is seeking division of matrimonial property during unbroken coverture... I have no jurisdiction over this matter...”
He cited the Court of Appeal decision.
The applicant took the position that the decisions above have been overtaken by the Matrimonial Property Act, 2013which repealed the Married Women Property Act 1882 and whose section 19 provides that the 1882 Act shall cease to extend to or apply in Kenya. The 1882 Act was an English legislature that was hitherto applicable in Kenya. The parties herein married in 1972 and separated in 1991. If they divorce today and seek the division of property, the 2013 Act shall apply as the English Act no longer applies. Under section 7of the2013 Act matrimonial property shall be divided between the spouses if they divorce or their marriage is otherwise dissolved. It is agreed that the marriage has not been dissolved, or divorce granted. The applicant seeks the division of matrimonial property. It is clear that the time for that has not come. She is not seeking a mere declaration of her rights as contemplated by section 17of the Act. She seeks both declaration of her rights and the division of the property. She has to wait for divorce, or dissolution of the marriage.
Lastly, what the respondent seeks is not a technical remedy. He attacks the jurisdiction of this court to hear and determine the summons, and that is a substantive issue. Jurisdiction is everything. If the court lacks it, it has to down its pen, as it were (OWNERS OF THE MOTOR VESSEL “LILIAN S” V. CALTEX OIL; (KENYA) LTD [1989] KLR 1).
I allow the objection and find that the court lacks jurisdiction to hear and determine the dispute. The same is dismissed with costs.
DATED and DELIVERED at NAIROBI this 18th September, 2014
A.O. MUCHELULE
JUDGE