[2017] KEHC 902 (KLR)
The court found that, given the ongoing nature of the proceedings and the risk that the subject property (including a school) could be altered or disposed of to the detriment of the applicant, it was just and necessary to preserve the properties outlined in the Notice of Motion. The court exercised its discretion...
Source-derived case information.
- Citation
- [2017] KEHC 902 (KLR)
- Parties
- Applicant: R W K; Respondent: P K K
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 7 of 2015
- Procedural Posture
- Originating Summons / Interlocutory Ruling on Preservation of Property Pending Hearing
- Outcome
- Interlocutory orders granted for preservation of property; hearing adjourned to a later date.
- Judges
- MW Muigai
- Legal Topics
- Matrimonial Property Preservation, Interlocutory Orders, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
R W K
Applicant
P K K
Respondent
Procedural Posture
Originating Summons / Interlocutory Ruling on Preservation of Property Pending Hearing
Legal Issues
- 1 Whether the properties outlined in the Notice of Motion should be preserved pending the hearing and determination of the suit.
- 2 Whether failure to notify the court and parties of counsel's absence justifies an adjournment.
Ratio Decidendi
The court found that, given the ongoing nature of the proceedings and the risk that the subject property (including a school) could be altered or disposed of to the detriment of the applicant, it was just and necessary to preserve the properties outlined in the Notice of Motion. The court exercised its discretion under Section 17 of the Matrimonial Property Act to ensure that neither party's interests would be prejudiced before the final determination of the matter. The adjournment was granted due to the respondent's counsel's absence, but the court emphasized the importance of timely communication to avoid unnecessary inconvenience to the parties and the court.
Court Disposition
Interlocutory orders granted for preservation of property; hearing adjourned to a later date.
Orders
- The properties outlined in paragraph 2 of the Notice of Motion of 23rd February, 2015 are preserved under Section 17 of the Matrimonial Property Act until hearing and determination of this matter.
- The matter is adjourned to 16th November, 2017 and parties/counsel to be served with a hearing notice.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
FAMILY DIVISION
CIVIL CASE NO. 7 OF 2015 (O.S)
IN THE MATTER OF AN APPLICATION UNDER THE MATRIMONIAL PROPERTY
R W K....................................PETITIONER
VERSUS
P K K...................................RESPONDENT
RULING
The matter commenced interpartes hearing on 13th October, 2015 and for various reasons as the Court record will show and confirm the same is ongoing albeit at a very slow pace.
Today’s hearing date was obtained by consent from the last hearing date 21st September, 2017 and until now it was not clear to the Court that the matter was not proceeding.
The Counsel for the Applicant has been candid that he was informed by letter that Mr. Kahuthu Counsel for the Respondent would be away to pick his child after exams from school. Be that as it may, this information ought to have been relied to the Court at the earliest convenience and to Counsel so that parties do not attend Court and the Court can attend to other matters.
This Court will adjourn this matter today’s and proceed on 16th November, 2017 and Counsel and Parties be duly served the Hearing Notice.
In the meantime with regard to the Originating Summons of 2nd February, 2015 filed on 23rd February, 2015, it has been brought to the attention of this Court that as the hearing drags on the school is being subjected to change of name and possibly with intention to deprive the Plaintiff of her share in the long run.
So as not prejudice each of the parties interests the properties outlined in paragraph 2 of the Notice of Motion of 23rd February, 2015 are hereby preserved under Section 17 of Matrimonial Property Act until hearing and determination of this matter.
It is hereby ordered.
DELIVERED SIGNED & DATED IN OPEN COURT IN NAIROBI ON 2ND NOVEMBER, 2017.
M. W. MUIGAI
JUDGE