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ELCStruck OutNot stated in the judgment· [2017] KEELC 3326 (KLR)

Nimo Adan Kabare v Abdi Adan Abdi [2017] KEELC 3326 (KLR)

Environment and Land Court
28 March 2017
931 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Nimo Adan Kabare, the plaintiff, sued her husband Abdi Adan Abdi, the defendant, seeking an order that commercial premises comprising 8 shops on a plot at Chwele market (part of LR Bokoli/Chwele/263, known as Albarkadh shopping centre) be shared equally between them. She simultaneously sought an interlocutory injunction restraining the defendant from selling, disposing of, wasting or interfering with the premises, and an order that rents be deposited in court. The defendant denied that the property was matrimonial property capable of sharing and raised a preliminary objection contending, among other things, that the court lacked jurisdiction because the marriage was still subsisting and that the land was registered in the name of Manaseh Wekesa, a non-party. The court held that although it has jurisdiction over land matters, jurisdiction to distribute matrimonial property relating to land arises only upon divorce or dissolution of marriage under the Matrimonial Cases Act; since the parties were still married, the suit was premature and the jurisdiction removed. The court further held it could not knowingly make orders affecting a registered owner of land who had not been joined. Upholding the preliminary objection, the court dismissed the application, struck out the suit as misconceived, incompetent and an abuse of process, and made no order as to costs given the parties' spousal relationship.

Key legal issues

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01

Jurisdiction over distribution of matrimonial property during a subsisting marriage

Holding

The court lacks jurisdiction to distribute matrimonial property relating to land before divorce or dissolution of the marriage; the suit is premature

Reasoning

The court found that although it has jurisdiction over land matters, the Matrimonial Causes Act triggers jurisdiction for distribution of matrimonial property only upon divorce or dissolution. Since the parties' marriage was subsisting, the claim for distribution was premature and the court's jurisdiction was ousted, warranting dismissal of the application and striking out of the plaint.

p. 2
02

Non-joinder of the registered owner of the suit land

Holding

Orders cannot be made affecting a registered owner who is not a party; the land was in the name of Manaseh Wekesa who was not joined

Reasoning

The defendant's preliminary objection established that the land in question was not registered in either party's name but belonged to Manaseh Wekesa, who was not a party. The court held it cannot knowingly make orders affecting a registered owner pointed out to it when he has not been joined. This independently undermined the plaintiff's claim and supported the objection.

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03

Whether the suit and application were competent

Holding

Both were misconceived, incompetent, bad in law and an abuse of the process of the court

Reasoning

The court observed that the plaint and the notice of motion sought the same thing - distribution of property of spouses still married. It upheld the defendant's grounds of opposition that the court has no jurisdiction where the marriage subsists and that the suit was incompetent and abusive, resulting in dismissal of the application and striking out of the suit.

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Legal principles established

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  • An Environment and Land Court may only entertain distribution of matrimonial property relating to land where the parties are divorced or the marriage is dissolved; a subsisting marriage ousts that jurisdiction
  • A court cannot knowingly make orders affecting a registered owner of land who has not been joined as a party to the suit

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.The plaintiff's notice of motion application is dismissed
  3. 3.The suit is struck out
  4. 4.No order as to costs
Jurisdiction invoked
Jurisdiction under the marriage/Matrimonial Causes Act in respect of land matters, as exercised by the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nimo Adan Kabare v Abdi Adan Abdi [2017] KEELC 3326 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3326/eng@2017-03-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.