M.W.K v A.M.W [2015] KEHC 5383 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

MATRIMONIAL CAUSE NO. 1 OF 2014

M W K………………...............................................…………………. APPLICANT

-VERSUS-

A M W ………………...................................................……………RESPONDENT

RULING

Before this court is a preliminary objection dated 17^th September 2014 raised by the respondent to the originating summons taken out by the applicant herein and dated 26th February 2014.

In the originating summons, the applicant is inter alia seeking a declaration that property known as L.R NO. [Particulars Withheld] was acquired  through the joint efforts  of the parties  herein and  that the same is a matrimonial  property which should now be divided equally since  the marriage  between them  broke  down making  them live separately.

The preliminary objection to the suit is on the following grounds:

1. That the issues for determination in this cause were heard and determined in Thika CM CC NO. 920 of 2009 which was previous suit between the same parties herein.
2. That no appeal was preferred against the decision delivered in Thika CM CC NO. 920 of 2009.
3. That the same issues cannot once more be re-canvassed in another court other than on appeal.
4. That the originating summons offends the provisions of Section 6 and & of Civil Procedure Code.
5. That litigation must come to an end.

The respondent through Mr Makumi put more emphasis on ground four above.  In so doing he referred this court to annexture marked as “AMM5” in his replying affidavit which is a judgment delivered in Thika CM CC NO. 920 of 2009.  Mr Makumi pointed out the subordinate in Thika decided that the applicant herein (who was the defendant in the lower court) had not demonstrated “registrable interests” on the suit which was capable of being registered. The caution lodged in the register against the title of the respondent herein was ordered removed. Mr Makumi therefore contended that in view of the fact that the property in question is the same one here and that in view of the fact that a decision was made on it without any appeal being preferred by the applicant herein, this suit is bad in law and resjudicata.  According  to the respondent  herein, the matter  in issue  is this present suit  is either the same  matter that was directly  and substantially and/or deemed  to have  been substantially in issue in the former  suit  pursuant  to provisions  of Section 7( 4)  of the Civil Procedure Act.  He cited the authority of MIRIAM WAHU NGAE & 3 OTHERS –VS- WANGARI NJUGUNA MBOTHU (2014) e KLR to buttress this argument.

The applicant /plaintiff through Mr Muturi opposed the preliminary objection raised above contending that the suit herein was filed before the decision in Thika CM CC was delivered.  Her contention is that the suits though involving the same parties addresses different issues.  In the suit   in Thika , the respondent says that the respondent  was seeking to remove  a restriction on the suit land while  in this present suit  she is seeking a declaration that the suit land  is matrimonial  property  which should be shared between the parties herein as spouses  whose differences are irreconcilable. The applicant /plaintiff urged this court to find that the issues are distinct and that the issue now before court could not have been litigated upon at Thika CM CC for want of jurisdiction.  Mr Muturi added that the plea of res judicata cannot be sustained since for the plea to be sustained the issue alleged to have been determined must have been done by a court of competent jurisdiction.  He referred this court to the definition of the term res judicata and its application as defined by Blacks Law Dictionary to support his argument and further cited the provisions of Matrimonial Causes Act NO. 49 of 2013, on the issue of lack of jurisdiction by subordinate courts to determine matrimonial causes.

The issue of determination by this court as per the arguments of both parties highlighted above is whether the originating summons filed herein is bad in law and res judicata   as per Section 7 of Civil Procedure Act Cap 21 Laws of Kenya and whether  Married Woman  Property Act (1882) is still  applicable  here in Kenya.

Doctrine of “Res judicata” defined

Res judicata is a latin word defined in Black’s Law Dictionary as;

          “a thing  adjudicated  or an issue that has been definitely settled  by a judicial  decision and therefore  an affirmative defence barring  the same parties  from litigating  a second law suit  on the same  claim or any other claim arising from the same transactions and that could have been  -but was  not raised  in the first suit”.  (six)  the dictionary gives three essential elements of the plea of res judicata these are:

1. Presence of an earlier decision on the issue.
2. A final judgment on the merits.
3. Involvement of the same parties or parties in purity with the original parties.

According to KULOBA JUDGE (retired) in judicial hints to Civil Procedure the expression “Res judicata” means “a thing or matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment.  He went  on to observe that re judicata  is essentially  a bar to a subsequent  proceedings  involving  same issue as had been finally and conclusively  decided  by a competent court in a prior suit between  the same  parties  or  their representatives .

To apply the above definitions or the description of the doctrine, this court is called upon to look at the issues before it in this case and compare it with the issues before the subordinate court and the decision made on the issues.  Issues in a suit can be deduced from the pleadings filed. This court can clearly deduce issues for determination in this suit.  However the same cannot be said of the suit before Thika CM CC NO. 920 of 2009 for the simple reason that the respondent did not enclose the copy of the pleadings filed before the subordinate court.  This court has looked at judgment annexed as “AMM5” in the replying affidavit of the respondent.  But this court is unable to tell with certainty what the issues were at that court Apart  from the fact  that the subordinate decided that the interests disclosed   were not registrable under the now repealed  Act ( Registered Land Act Cap 300 ) and that general damages  pleaded had not been proved, there  is little  else this court can make of the said judgment  in so far as  the issues are  concern .  This  court prompted  the respondent at the hearing  of this preliminary  objection as to the importance  of enclosing  of pleadings  and the counsel agreed that it was  an over sight  on their part and that the same could  have aided him and this court  in determining  the preliminary objection raised.

All the same, this court has considered the objection raised by the plaintiff/applicant herein particularly on the issue of jurisdiction of the CM CC in Thika to determine matrimonial causes.  It is true Section 17 of Married Women Property Act (1882) and the Matrimonial Causes Act NO. 49 of 2013 the jurisdiction to determine matrimonial disputes on matrimonial property is placed in this court.  A subordinate court is not competent to determine such disputes.  Section 7 (4) of the Civil Procedure Act cannot be interpreted to bar a litigant from seeking justice in a proper court with jurisdiction.  In the case of GICHUKI –VS- GICHUKI (1982) KLR 285, the court  of appeal observed  that the doctrine  of re judicata  operates where  the dispute  between  the parties  involving  the same cause  of action as another matter  which had  previously been adjudicated by  a court of competent  jurisdiction.  In this quoted decision the appellant was challenging the trial judge’s ruling in an application to have the dispute referred arbitration by elders.  The judge had found that the matter in question had been decided previously by a Resident Magistrate competent to make the said decision.  The court of appeal upheld the trial judge’s decision.

This court finds that the issue for determination in this present suit cannot be said to have been same issue for determination in Thika CM CC for two reasons

1. There are no pleadings placed before me by either party to demonstrate what the issues were for determination.  This court does not consider it appropriate or correct to speculate on the issues that were subject to the judgment enclosed by the respondent and marked “AMM5”.  This court is unable to tell   with certain  what the cause of action was  in the subordinate court as opposed  to the cause of action in this suit which  is clearly a matrimonial cause  based on Section 17  of Married Women Property Act (1882).
2. Even if the issue of matrimonial cause had been  raised in the  subordinate court, the court  did not have the jurisdiction  to entertain  it and the doctrine  as afore stated  above cannot  apply in such  situations .

This court notes that the respondent has raised a preliminary objection on the basis that the suit herein is res judicata which has been overruled for the aforesaid reason.  However, there is an issue that was not raised which this court considers important as the matter is likely to feature at some stage in the proceedings.  So in order to give effect to Section 1 A & 1 B of the Civil Procedure Act on the overriding objective of the Act and safe on judicial time this court deems it fit to determine the issue now rather later.  This is the question of jurisdiction of this court to determine this cause as brought under Section 17 of Married Women Property Act (1882) a statute  that has since been repealed with the coming into force  of the Matrimonial  Property  Act, 2013  ( NO. 49 of 2013).

I have considered this  issue for the sake of putting matters in clear perspective in view of the fact that the marriage between the applicant and the respondent ceased after dissolution made prior to the filing of this cause.  This point is established in the annexture marked “AMM2” which shows that the marriage between the parties was indeed dissolved on      16^th August 2012.  Section 17 of the now repealed Married Women Property Act of 1882 provided as follows:

          “In any question between husband and wife as to the title to or possession of property either party may apply by summons or  otherwise in a summary way to any judge of the High court……….. and the judge may make such order with respect to the property in dispute and as to the costs of and consequent on the application as he thinks fit, or may direct such application to stand over from time to time and any inquiry touching the matters in question to be made in such manner as he thinks fit………” (Emphasis added ).

It is elementary   from the above  quoted section that a  cause  brought under the sections involves parties  that are  husband and wife who could  be either  separated or living  together  but having differences that  justify  be sorted  out  by dividing the matrimonial property between  the two according  to the contribution  of cash party to the marriage. My understanding from the reading of the above section is that where marriage has been dissolved Section 17 could not be invoked as the parties can no longer be described as husband and wife. A look at the book “Divorce “8th edition RAYDEN clearly explains that an application under Section 17 can only be made if the parties are husband and wife and that the procedure is unavailable for those parties who have already divorced. Similarly  in the case of  MARY FLORENCE  WAMBUI NJENGA  -VS- JOHN NJENGA  KANGARA (2005) e KLR  Justice D. Musinga ( as he then was ) decided that the  court  lacked jurisdiction to entertain  an originating  summons taken out  pursuant to Section 17  of Married Women Property Act (1882)  by parties whose  marriage  had already been dissolved.  In making  the decision Justice Musinga  agreed with the position earlier  taken  by Ringera Justice ( as he then was ) in an unreported  case of HEZHVO YING –VS- QIV WENREN  where the court held that it  had no jurisdiction  to entertain  an application  that had been commenced  under Section 17 of the Married Women Property Act of 1882  after the marriage  had been dissolved.  In making the decision, the court observed  that courts in Kenya  had for a long  time acted on supposition  that an  application under Section 17 of the Married  Women property Act of England  could be made  by former spouses  or ex husbands for ex wives  after dissolution of their marriage  but that was not the true position in law.

This court  finds that  the  Originating Summons filed herein is hinged on an act  that has since been repealed  and  though both  counsels were silent  on this point , they are aware  of  the current position in this Country  and the plaintiff’s counsel ought  to advise  his client accordingly.  The parties herein are no longer in coverture and the suit is incompetent.  This suit was filed on 26th February 2014 while the law under which it was brought ceased to have effect with the commencement of the new Matrimonial Property Act, 2013 on 16^th January 2014.   

The upshot of the above is that the preliminary objection raised by the respondent herein is overruled but, for the reasons aforesaid, this court finds that the suit herein is incompetent an unsustainable. It is struck out with no order as to costs.

R.K. LIMO

JUDGE

DATED, SIGNED AND DELIVERED AT KERUGOYA THIS 23^RD DAY OF APRIL 2015 in the presence of

Mr Ngigi holding brief for Mr Makumi advocate for the respondent

Willy Court Clerk