[2025] KEHC 3182 (KLR)
The court found that the applicant had indeed filed both the originating summons and the notice of motion on 3rd June 2024, as evidenced by the pleadings on record. The respondent's assertion that the suit was not properly instituted was therefore factually incorrect. The court reiterated that a preliminary...
Source-derived case information.
- Citation
- [2025] KEHC 3182 (KLR)
- Parties
- Applicant: RT; Respondent: SAG alias AGB
- Court
- High Court
- Court Station
- High Court at Marsabit
- Jurisdiction
- Kenya
- Case Number
- Matrimonial Case E003 of 2024
- Procedural Posture
- Matrimonial Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs to the applicant
- Judges
- FR Olel
- Legal Topics
- Matrimonial Property, Preliminary Objection, Procedure for Origination, Division of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
RT
Applicant
SAG alias AGB
Respondent
Procedural Posture
Matrimonial Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit was properly instituted by way of originating summons as required under section 7(2) of the Matrimonial Property Rules.
- 2 Whether the preliminary objection raised by the respondent is merited.
Ratio Decidendi
The court found that the applicant had indeed filed both the originating summons and the notice of motion on 3rd June 2024, as evidenced by the pleadings on record. The respondent's assertion that the suit was not properly instituted was therefore factually incorrect. The court reiterated that a preliminary objection must be based solely on a point of law and not on contested facts. Since the institution of the suit complied with the procedural requirements of section 7(2) of the Matrimonial Property Rules, the preliminary objection lacked merit and was dismissed with costs to the applicant.
Court Disposition
preliminary objection dismissed with costs to the applicant
Orders
- The preliminary objection dated 13th December 2024 is dismissed with costs to the applicant.
Full Case Text
Judgment text and source record
24 paragraphs
RT v SAG alias AGB (Matrimonial Case E003 of 2024) [2025] KEHC 3182 (KLR) (6 February 2025) (Ruling)
Neutral citation: [2025] KEHC 3182 (KLR)
Republic of Kenya
In the High Court at Marsabit
Matrimonial Case E003 of 2024
FR Olel, J
February 6, 2025
IN THE MATTER OF DIVISION OF MATRIMOINAL PROPERTY
Between
RT
Petitioner
and
SAG alias AGB
Respondent
Ruling
A. Introduction 1. The petitioner vide her originating summons dated 3rd June 2024, filed this suit seeking a determination of her share in matrimonial properties known as [Particulars withheld] (Marsabit) measuring approximately 0. 1HA and on parcel LR 28XX -Jirime measuring approximately 5 acres (hereinafter referred to as the suit properties). She simultaneously filed her notice of motion dated 3rd June 2024 seeking to have the court issue conservatory orders to stop the respondent from disposing off the said suit parcels of land. The said conservatory orders were issued/granted on 11th June 2024.
2. The Respondent in response filed a preliminary objection dated 19th September 2024 on the grounds that; the application herein is incurably defective, incompetent and bad in law for reasons that it contravenes section 7(2) of the Matrimonial property Rules and therefore urged the court to dismiss the suit with costs.
3. Section 7(2) of the Matrimonial property Rules provide that;“where a spouse seeks to assert a right of claim or interest after the dissolution of the marriage by a decree of a court given in final determination of proceedings under the marriage Act (Cap 150), the claim shall be made by way of originating summons returnable before a judge or magistrate, in form MP1 as set out in the schedule…..”
4. A preliminary objection can only be raised purely on a point of law and not to question the truthfulness of a fact in a case because then it would be a breach of rules of procedure and ought not to be entertained by courts of law. In the case of Aviation & Allied Workers Union Kenya vs Kenya Airways Limited & 3 others [2015] eKLR, the Supreme Court quoted with approval Law J.A in Mukisa Biscuits Manufacturing Case (Supra), where the learned Judge observed that:“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
5. 14. To ascertain whether a point is pure law, the Supreme Court in Aviation & Allied Workers Union Kenya (Supra) held that;“the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record”.
6. The respondent’s contention that this suit was not instituted by way of originating summons is misplaced as the petitioner did file both the originating summons simultaneously with her notice of motion application. Both pleadings dated 3th June 2024 are in the court file. This suit was therefore properly instituted and does not suffer from any procedural defect as alleged.
Dispostion 7. The preliminary objection dated 13th December 2024, therefore lacks merit and the same is dismissed with costs to the Respondent.
8. It is so ordered.
RULING SIGNED AND DATED AT MARSABIT THIS 6TH DAY OF FEBRUARY, 2025. FRANCIS RAYOLA OLELJUDGEDELIVERED ON THE VIRTUAL PLATFORM, TEAMS THIS 6TH DAY OF FEBRUARY, 2025. In the presence of;Mr. Manyange for PetitionerMr. Gitai Njuguna for RespondentMr. Jarso Court Assistant