WNS v DNS (Matrimonial Cause E012 of 2023) [2024] KEHC 13466 (KLR) (29 October 2024) (Ruling)
Neutral citation:
[2024] KEHC 13466 (KLR)
Republic of Kenya
Matrimonial Cause E012 of 2023
HI Ong'udi, J
October 29, 2024
IN THE MATTER OF AN APPLICATION FOR DIVISION OF MATRIMONIAL PROPERTY
Between
WNS
Applicant
and
DNS
Respondent
Ruling
1.This ruling is in respect of a Preliminary Objection dated 15th January, 2024 filed by the respondent on the grounds that;i.The applicant lacks the necessary legal Locus Standi to institute the matrimonial proceedings herein since there exists no legally recognized marriage between the applicant and the respondent.ii.The applicant has invoked this honourable Court's jurisdiction prematurely contrary to the provisions of Section 7 of the Matrimonial Property Act No. 49 of 2013.iii.The originating summons filed herein is fatally and incurably defective and the same is ripe for sticking out with hefty cost.
2.In response the applicant herein filed a further affidavit dated 24th April 2024. She deposed that their union was formalized as a Kikuyu customary marriage. Further, that the respondent introduced himself in the company of elders. Negotiations for dowry were done and part payment of the same made. She annexed copies of photographs marked as “WNS 2”.
3.She deposed further that she had filed a divorce petition being Nakuru Magistrates Court Divorce Cause No. E016 of 2024; W.N.S versus D.S which was pending hearing and determination. She added that the application and petition are meritorious and unless the court issues an injunction, she risked losing property which she had equally invested in and taken part in its acquisition and development.
4.The preliminary objection application was disposed of by way of written submissions.
Respondent’s/Applicant’s submissions
5.These were filed by Murunga Mwangi & Associates Advocates and are dated 28th February, 2022. Counsel gave brief facts of the case and identified two issues for determination.
6.The first issue is whether the applicant had invoked this court’s jurisdiction prematurely contrary to the provisions of section 7 of the Matrimonial Property Act No. 49 of 2013. Counsel submitted in the affirmative and cited section 7 of the Matrimonial Property Act 2013 which provides as follows;
7.The court’s attention was also drawn to the case of ZSN v WNO [2019] eKLR where the court held as follows;
8.The second issue is whether the applicant has the necessary legal locus standi to institute the matrimonial proceedings herein whereby counsel submitted in the negative. He further submitted that the applicant had not demonstrated that she was a spouse within the meaning of provisions of the Marriage Act 2014.
9.Additionally, that at the time of instituting the matrimonial proceedings herein the applicant had not sought for dissolution of the alleged marriage between her and the respondent. That the applicant should first prosecute the divorce matter to establish her locus as a spouse.
10.In conclusion, he urged the court to uphold the preliminary objection in its entirety and strike out the matrimonial proceedings herein with cost.
Applicant’s/Respondent’s submissions
11.These were filed by Muiruri, Cheserek & Company Advocates and are dated 2nd May, 2024. Counsel gave brief background of the case and identified one issue for determination that is whether the notice of preliminary objection is merited.
12.She submitted that the applicant has locus standi to institute matrimonial proceedings and has invoked this court’s jurisdiction pursuant to the provisions of section 17 of the Matrimonial Property Act. The court’s attention was drawn to several cases among them being the case of BWM v RM [2021] eKLR, where the court stated as follows: -
13.She submitted further, that in view of the cases cited in the submissions, the applicant was entitled to ventilate her claim on proprietary rights under section 17 of the Matrimonial Property Act. Thus, the applicant had necessary locus to bring the instant suit before this court.
14.In conclusion, she urged the court to dismiss the preliminary objection with costs to the applicant.
Analysis and determination
15.I have considered the preliminary objection herein, the response and the submissions by both parties. I find the issue for determination to be whether the preliminary objection dated 15th January, 2024 is merited.
16.It is trite law that for a preliminary objection to be valid; firstly, it must raise a pure point of law. Secondly, the objection is to be argued on the assumption that all the facts pleaded by the party against whom it is raised are correct. Lastly, an objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
17.In Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA 696, Law JA stated as follows:
18.Further, in Oraro vs. Mbaja [2005] 1 KLR 141 Ojwang, J (as he then was) expressed himself as follows:
19.Going by the law and the above decisions this Court acknowledges that a preliminary objection must stem from the pleadings and raise a pure point of law. It should not deal with disputed facts nor derive its foundation from factual information.
20.The respondent contends that the applicant lacks the necessary legal locus standi to institute the matrimonial proceedings herein since there exists no legally recognized marriage between them, a fact the applicant disputes. For this Court to be able to ascertain whether or not the applicant has locus standi, it will have to ascertain this from the facts as pleaded by the respondent and those raised by the applicant. In doing so, the Court will be probing into the evidence.
21.I am well guided by the holding in the case of Oraro vs. Mbaja (supra), which is that a preliminary objection cannot be raised on disputed facts as to whether or not the applicant has locus standi to institute matrimonial proceedings. This should be very clear and without any controversy for it to require evidence to be adduced. This point was clearly set out in the case of N.C.K. Vs G. V. K. [2015] eKLR where Muchelule J (as he then was) held as follows:
22.Following the above analysis, it is my finding that the preliminary objection raised herein falls short of the requirement as set out in the Mukisa Biscuit Manufacturing Co. Ltd case (supra).
23.The upshot is that the preliminary objection lacks merit and is dismissed. Costs in the cause.
24.Orders accordingly.
DELIVERED, DATED AND SIGNED THIS 29TH DAY OF OCTOBER, 2024 IN OPEN COURT AT NAKURU.H. I. ONG’UDIJUDGE