[2020] KEHC 9776 (KLR)
The court held that it lacked jurisdiction to entertain the suit for distribution of matrimonial property because the applicant failed to prove the existence of a marriage or union with the respondent. The applicant was given an opportunity to file a suit in the Chief Magistrate’s Court to determine the existence...
Source-derived case information.
- Citation
- [2020] KEHC 9776 (KLR)
- Parties
- Applicant: SWG; Respondent: ACWM
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 44 of 2016
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; suit struck out for want of jurisdiction
- Judges
- A Ali-Aroni
- Legal Topics
- Matrimonial Property, Jurisdiction, Cohabitation, Proof of Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
SWG
Applicant
ACWM
Respondent
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court has jurisdiction to determine the distribution of matrimonial property where the existence of a marriage or union is disputed.
- 2 Whether the applicant has provided sufficient proof of marriage or cohabitation to invoke the court's jurisdiction under the Matrimonial Property Act.
- 3 Whether the suit is maintainable in the absence of proof of dissolution of marriage or union.
Ratio Decidendi
The court held that it lacked jurisdiction to entertain the suit for distribution of matrimonial property because the applicant failed to prove the existence of a marriage or union with the respondent. The applicant was given an opportunity to file a suit in the Chief Magistrate’s Court to determine the existence and dissolution of the alleged union, but failed to do so. Without proof of marriage or its dissolution, the court could not proceed under the Matrimonial Property Act. Consequently, the preliminary objection was upheld and the suit was struck out for want of jurisdiction.
Court Disposition
preliminary objection upheld; suit struck out for want of jurisdiction
Orders
- The suit is struck out for want of jurisdiction.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
CIVIL SUIT NO. 44 OF 2016
SWG..................................................................APPLICANT
VERSUS
ACWM.........................................................RESPONDENT
RULING
1. This ruling relates to the Preliminary Objection raised by the respondent’s counsel; wherein she has urged that the court lacks jurisdiction; the application is bad in law, frivolous, vexatious and ought to be struck out with costs.
2. The applicant moved this court by way of an Originating Summons inter alia pursuant to Section 2of theMarriage Act 2014, Sections 2, 7, 12 (3) and 14of the Matrimonial Property Act 2004, seeking distribution of Matrimonial Property acquired between him and the respondent during cohabitation.
3. The suit was followed with an application dated 20th December 2016 where the Plaintiff sought to have access to the matrimonial home for purposes of obtaining his personal effects.
4. Currently the applicant is acting in person and the court in the interest of justice and fair play, on the 31st January, 2019 decided to pend the matter for 6 months to allow him file a divorce cause in the Chief Magistrate’s court in view of the objection raised. That was the last time the applicant appeared before court despite several notices for mention of the matter post the 6 months and as a result of the absence the respondent’s counsel sought to proceed with the Preliminary Objection.
5. On the 23rd of January 2020, the court being satisfied that a hearing notice had been duly served allowed the hearing of the Preliminary Objection the applicant’s absence notwithstanding.
6. Counsel for the respondent urged that the suit ought to be dismissed as the court lacks jurisdiction since the parties had not been married, and though there is a claim of cohabitation no prove of such has been placed before court even then, no proof of dissolution of the said marriage was placed before court either and therefore the suit being bad in law.
7. As has been held by court’s severally jurisdiction of a court is everything, without it the court must down its tools.
8. A marriage or a union has to be proved in evidence by way of documentation or where necessary a court makes a declaration based on evidence before it.
9. Section 7 of the Matrimonial Causes Act, 2013 specifies when a court has jurisdiction as follows:
“Subject to subsection 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”
10. In this instance the applicant claimed to have been married to the respondent which she denied. He was given an opportunity to file suit in the Chief Magistrate’s Court for determination as to whether there ever existed a union by way of cohabitation, and for its dissolution to pave way for this court to act, this was not done.
11. By law, as it is now; this court has no jurisdiction and therefore the Preliminary Objection is upheld and the suit struck off.
12. Costs to the respondent.
DATED and DELIVERED at NAIROBI on this 11TH day of JUNE, 2020.
ALI-ARONI
JUDGE