[2005] KEHC 1428 (KLR)
The court held that the authority cited by the respondent was not relevant to the present case, as it related to trust property and not to disputes under the Married Women’s Property Act 1882. The court found no authority prohibiting it from investigating the rights of husband and wife in matrimonial property,...
Source-derived case information.
- Citation
- [2005] KEHC 1428 (KLR)
- Parties
- Applicant: Tayiba Ahmed Taib Bajaber; Respondent: Swaleh Salim Mohamed Bajaber
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 134 of 2005
- Procedural Posture
- Civil Suit / Ruling on Originating Summons
- Outcome
- application dismissed with costs to the respondent; interim orders extended pending inter partes hearing
- Legal Topics
- Matrimonial Property, Division of Property, Married Women Property Act, Muslim Marriage, Originating Summons Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tayiba Ahmed Taib Bajaber
Applicant
Swaleh Salim Mohamed Bajaber
Respondent
Procedural Posture
Civil Suit / Ruling on Originating Summons
Legal Issues
- 1 Whether the court can investigate the rights of husband and wife in matrimonial properties under the Married Women’s Property Act 1882, regardless of the subsistence of the marriage.
- 2 Whether the originating summons procedure is appropriate for resolving disputes over matrimonial property between spouses.
Ratio Decidendi
The court held that the authority cited by the respondent was not relevant to the present case, as it related to trust property and not to disputes under the Married Women’s Property Act 1882. The court found no authority prohibiting it from investigating the rights of husband and wife in matrimonial property, regardless of whether the marriage is subsisting. The court concluded that the application lacked merit and dismissed it with costs to the respondent, but extended interim orders pending inter partes hearing of the application for urgency.
Court Disposition
application dismissed with costs to the respondent; interim orders extended pending inter partes hearing
Orders
- The application is dismissed with costs to the respondent.
- Interim orders in the original certificate of urgency are extended pending hearing inter partes on a priority basis.
Full Case Text
Judgment text and source record
30 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA Civil Suit 134 of 2005 (OS) IN THE MATTER OF: THE MARRIED WOMEN’S PROPERTY ACT 1882 AND IN THE MATTER OF: QUESTIONS ARISING BETWEEN TAYIBA AHMED TAIB BAJABER & SWALEH SALIM MOHAMED BAJABER CONCERNING THE TITLE TO MATRIMONIAL PROPERTIES AND FUNDS
TAYIBA AHMED TAIB BAJABER …………………………..PLAINTIFF/APPL.
VERSUS
SWALEH SALIM MOHAMED BAJABER ………………..DEFENDANT/RESP.
R U L I N G:
This suit was originated by the process of originating summons. This is provided for under the provisions of Married Women Property Act 1882 a statute of General Application in Kenya. The purpose is to facilitate as a matter of urgency the interests in matrimonial property of married women.
This part of law is applicable both customary marriages, Statutory marriages including Muslim Marriages see the case of (1)Ivs I
(2) KARA VS KARANJA
and other more recent authorities.
Mr. Hassan has referred to authority of Wakf Commisioners of Mohamed Bin Umenya Bin Abdulmaji Mwijabu KLR [1984] 346.
That authority relates to trusts (Wakf) properties between Trustees and beneficiaries not “married women properties Act.”
In that case the court of appeal held: Originating summons procedure is intended for settling simple matters without the expense of a full trial and not for serious complex issues.
I find this authority not to be relevant at all. The originating summons referred to in the 1882 Act is the special procedure available in England then I have not been referred to any authority which prohibits the court from investigating the rights of husband and wife in matrimonial properties. Whether the marriage is subsisting or not. In this case the parties are residing apart and it is necessary for the Plaintiff’ (wife) to protect her interests.
I find no merit in this application and the same is dismissed with costs to the Respondent.
Delivered and dated at Mombasa this 6th day of September 2005.
J. KHAMINWA
J U D G E
6/9/05
Khaminwa, J
Mr. Mwakisha – present
Mr. Akanga h/b for Hassan
Ruling read in their presence.
Mr. Mwakisha:
There are interim orders in the original certificate of urgency. That application to be fixed for hearing. Interim orders substituting are hereby extended pending hearing inter partes on priority basis.
Mr. Akanga
No objection.
KHAMINWA, J
Orders accordingly.
KHAMINWA, J