[2023] KEHC 24530 (KLR)

[2023] KEHC 24530 (KLR)

The court held that the respondent's preliminary objection was twofold: first, challenging the existence of a marriage, which is a disputed fact and thus not a proper ground for a preliminary objection; and second, arguing that the court lacked jurisdiction to determine the Originating Summons because the marriage had not been dissolved, relying on section 7 of the Matrimonial Property Act. The court found that section 17 of the Matrimonial Property Act expressly allows a spouse to seek a declaration of rights to property even where the marriage is subsisting, and that such proceedings are not dependent on divorce or dissolution. The court further held that the preliminary objection,...

Citation
[2023] KEHC 24530 (KLR)
Parties
Applicant: ZAS; Respondent: MKO
Court
High Court
Court Station
High Court at Kisumu
Jurisdiction
Kenya
Judgment Date
1 November 2023
Case Number
Family Originating Summons E005 of 2023
Procedural Posture
Family Originating Summons / Ruling on Preliminary Objection
Outcome
preliminary objection dismissed; court affirms jurisdiction to hear originating summons
Judges
RE Aburili
Legal Topics
Matrimonial Property, Declaration of Rights, Jurisdiction of Family Court, Injunctive Relief, Ownership of Land, Status of Marriage
Source Language
English
Family and Children Land and Property Matrimonial Property Declaration of Rights Jurisdiction of Family Court Injunctive Relief Ownership of Land Status of Marriage

Case Brief

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Parties

ZAS

Applicant

MKO

Respondent

Procedural Posture

Family Originating Summons / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the preliminary objection raised by the respondent is properly before the court.
  2. 2 Whether the High Court has jurisdiction to determine the Originating Summons regarding declaration of rights to matrimonial property where the marriage has not been dissolved.

Ratio Decidendi

The court held that the respondent's preliminary objection was twofold: first, challenging the existence of a marriage, which is a disputed fact and thus not a proper ground for a preliminary objection; and second, arguing that the court lacked jurisdiction to determine the Originating Summons because the marriage had not been dissolved, relying on section 7 of the Matrimonial Property Act. The court found that section 17 of the Matrimonial Property Act expressly allows a spouse to seek a declaration of rights to property even where the marriage is subsisting, and that such proceedings are not dependent on divorce or dissolution. The court further held that the preliminary objection,...

Court Disposition

preliminary objection dismissed; court affirms jurisdiction to hear originating summons

Orders

  • The preliminary objection is dismissed.
  • The court affirms it has jurisdiction to hear and determine the Originating Summons.