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Court of AppealPartially AllowedCivil Appeal No. 61 of 2019· [2020] KECA 335 (KLR)

AKK v PKW [2020] KECA 335 (KLR)

Court of Appeal
2 October 2020
Mohamed Abdulahi WarsameM. WarsamePKP. O. KiageSKS. Gatembu Kairu
4,819 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed you can ask the High Court to declare your rights in matrimonial property during marriage—actual division must wait until divorce.

What this practically means

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Executive summary

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The appellant and respondent cohabited from 1999 and formalised a Kikuyu customary marriage in 2000, with two children. The appellant filed an Originating Summons and applications under the Matrimonial Property Act, 2013 seeking declaratory and preservatory orders over land and shares in several companies, claiming a 50:50 beneficial interest. The High Court (Muigai, J.) upheld the respondent's preliminary objection, holding that it could not exercise jurisdiction over division of matrimonial property until the pending Divorce Cause No. 867 of 2017 was determined, and vacated interim preservation orders, holding that company shares were the province of the Commercial Division because a company is a separate legal entity. The appellant appealed. The Court of Appeal, applying the settled Mbogo v Shah standard for interference with discretion, held that the trial Judge erred in confining the court's jurisdiction to Section 7 of the Matrimonial Property Act, which permits division only upon divorce or dissolution. Section 17 independently empowers a court to declare the rights of a spouse in contested property notwithstanding the subsistence of the marriage and even where no matrimonial petition has been filed. The Court set aside and dismissed the preliminary objection and remitted the Notice of Motion dated 24th January 2018 to the High Court for hearing and determination before any Judge other than Muigai, J., with directions to be given by the Head of Division within 21 days. It made no orders as to costs. The Court did not itself determine the merits of the property or share claims, nor whether the companies' shares constitute matrimonial property; those questions remain for the High Court.

Key legal issues

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01

Jurisdiction under Section 17 of the Matrimonial Property Act pending divorce

Holding

The High Court erred in confining its jurisdiction to Section 7; Section 17 permits a declaration of rights to contested property whether or not a matrimonial cause petition has been filed, and the divorce cause does not bar such an application.

Reasoning

Section 7 governs division of matrimonial property upon divorce or dissolution, while Section 17 governs declarations of rights to property contested between a person and a spouse. The appellant's pleadings sought declaratory and preservatory relief as well as division. A plain reading of Section 17 enables a spouse, the subsistence of the marriage notwithstanding, to seek declaratory orders, and such application may be made even where no petition has been filed. The trial court therefore wrongly limited its jurisdiction to Section 7.

p. 5
02

Upholding of the preliminary objection

Holding

The learned Judge erred in upholding the preliminary objection and concluding that the court lacked jurisdiction, since the court was clothed with jurisdiction over the prayers that did not involve division of matrimonial property.

Reasoning

Because the trial court had jurisdiction to entertain the declaratory and preservatory aspects of the appellant's prayers under Section 17, the basis on which the preliminary objection was upheld - that jurisdiction awaited dissolution of the marriage - fell away. The preliminary objection was accordingly set aside and dismissed and the application remitted for hearing before another judge.

p. 6
03

Standard for interference with discretionary decisions of lower courts

Holding

An appellate court will not interfere with the exercise of discretion by the court below unless satisfied that the decision is clearly wrong because of misdirection, failure to consider relevant matters, consideration of irrelevant matters, or clear abuse of discretion.

Reasoning

Relying on Mbogo v Shah and Nguruman Limited v Jan Bonde Nielsen, the Court reiterated the settled presumption of correctness attaching to discretionary decisions, reversible only upon demonstration of clear abuse of discretion. This framed the appellate standard before the Court turned to jurisdiction, and it applied that standard in finding the Judge's jurisdictional limitation to be an error.

p. 5

Legal principles established

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  • A High Court has jurisdiction under Section 17 of the Matrimonial Property Act to declare the rights of spouses in contested matrimonial property notwithstanding the subsistence of the marriage or a pending divorce cause; only division under Section 7 awaits dissolution.
  • The Court of Appeal will not interfere with the exercise of discretion by a lower court unless the decision is clearly wrong due to misdirection, failure to consider relevant matters, consideration of irrelevant matters, or clear abuse of discretion.

Court orders

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  1. 1.The preliminary objection of 7th March, 2018 is set aside and dismissed
  2. 2.The Notice of Motion dated 24th January 2018 is remitted back to the High Court for hearing and determination before any Judge other than Muigai, J.
  3. 3.The matter to be placed before the Head of Division within 21 days of delivery of the ruling for necessary directions regarding the hearing and disposal of the matter
  4. 4.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 37
  • Civil Procedure RulesOrder 40 Rule 1(a) and (b)
  • Civil Procedure ActSection 3A
  • Matrimonial Property Act, 2013Section 2
  • Matrimonial Property Act, 2013Section 6(c)
  • Matrimonial Property Act, 2013Section 7
  • Matrimonial Property Act, 2013Section 9
  • Matrimonial Property Act, 2013Sections 12(1) and 12(3)
  • Matrimonial Property Act, 2013Section 14
  • Matrimonial Property Act, 2013Section 17(1) and (2)
  • Land Registration Act
  • Matrimonial Causes Act 1973 (England)
  • Family Law Act 1966 (England)Section 33(4)

Cases cited (10)

  • Mukisa Biscuit Company vs. Westend Distributors Limited
    (1969) EA 696
  • Mbogo & Another vs. Shah
    [1968] EA 93
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • PNN vs. ZWN
    [2017] eKLR
  • Petit vs. Petit
    [1970] AC 777
  • N.C.K. vs. G.V.K
    [2015] eKLR
  • Arif vs. Anwar
    [2015] EWHC 124 (FAM)
  • Muthembwa vs. Muthembwa
    [2002] 1 KLR page 92
  • Nancy Wambui Ndichu vs. Steve Ndichu Mwaura
    Nairobi HCCC No. 51 of 2012 (OS)
  • Minnie Waithera Mbue vs. John Peter Mbue
    Nairobi HCCC No. 43 of 2009 (OS)
On appeal from
High Court of Kenya at Nairobi
Civil Case No. 6 of 2018
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act over appeals from the High Court (not stated with greater specificity in the judgment)

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, "AKK v PKW [2020] KECA 335 (KLR)", Case Analysis (2020). Civil Appeal No. 61 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/335/eng@2020-10-02

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