J W M v B W [2014] KEELC 296 (KLR)

Environment and Land Court

17 July 2014

EOE. Obaga

425 words in judgment

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The bottom line

A Kenyan court refused to evict a wife from her husband's plots because they were still legally married, and spouses have equal constitutional rights.

What this practically means

Executive summary

The plaintiff, a former husband of the defendant, sued for an eviction order against her from two plots measuring 50 x 100 at Mabonde area, Kitale, and for a permanent injunction restraining her and her agents from interfering with the plots. The defendant, though served, neither entered appearance nor filed a defence, and the suit proceeded by formal proof. The plaintiff testified that he married the defendant in 1999; she deserted him in 2005 and married elsewhere, leaving two children of the marriage; she returned in 2011 and occupied a site office on the two properties and refused to move out. He produced a sale agreement showing he bought the plots on 5/4/2000 for Kshs.45,000/= and a demand letter to the defendant. The court found the plaintiff's evidence uncontroverted but noted that he did not claim the properties were the matrimonial home in evidence, and crucially never said he had divorced the defendant; the two remain husband and wife notwithstanding her desertion and return. Holding that parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at dissolution, the court found the suit misconceived: ordering eviction would be both unfair and unconstitutional. The court dismissed the plaintiff's case with no order as to costs. Judgment was delivered on 17 July 2014 at 9.07 a.m. in the absence of the plaintiff's advocate, who was aware of the date.

Key legal issues

Whether an uncontroverted formal-proof case must succeed

Holding

No - even uncontroverted evidence does not entitle the plaintiff to relief where the claim is misconceived in law, since the parties remain married and spouses have equal constitutional rights

Reasoning

The plaintiff testified without contradiction that he bought the plots and that the defendant deserted him and later returned to occupy the site office. However, the court noted the plaintiff never said he divorced the defendant, so they remain husband and wife. Under the constitutional guarantee of equality of spouses, ordering eviction would be unfair and unconstitutional, so the suit failed despite uncontroverted evidence.

p. 2

Whether the defendant's desertion and remarriage elsewhere entitled the plaintiff to evict her

Holding

No - desertion did not dissolve the marriage, and the constitutional equality of spouses barred eviction

Reasoning

The defendant deserted the plaintiff in 2005, married elsewhere, and returned in 2011 to occupy the site office. The court found the two remain husband and wife notwithstanding the desertion, and that equal rights of parties to a marriage at all stages made an eviction order unfair and unconstitutional. The suit was therefore dismissed.

p. 2

Legal principles established

Spouses are entitled to equal rights in relation to property during marriage, such that eviction of a spouse from matrimonial property would be unconstitutional

Court orders

1.Dismissal of the plaintiff's suit with no order as to costs

Authorities

Legislation

Constitution of Kenya, 2010Equality of parties to marriage (Article 45(3) in substance)

Jurisdiction invoked: Constitution of Kenya, 2010 (Article 45(3) invoked in substance on equality of spouses); Environment and Land Court jurisdiction over plots and eviction

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "J W M v B W [2014] KEELC 296 (KLR)", Case Analysis (2014). Land Case No. 63 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/296/eng@2014-07-17

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