A N W v M W [2015] KEELC 536 (KLR)

The bottom line

A Kenyan High Court dismissed a husband's attempt to block his wife's matrimonial property claim, ruling that a wrongly filed summons is not the same as lacking jurisdiction.

What this practically means

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Executive summary

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The plaintiff and defendant, husband and wife married in 1968, acquired a 10-acre property on which they set up their matrimonial home. The defendant later married a second wife, relations soured, and in 1994 the defendant chased the plaintiff from the matrimonial home. The plaintiff filed an originating summons seeking a share of the matrimonial property. On 30/11/2011 the defendant filed a preliminary objection contending that the court lacked jurisdiction to determine the matter. After out-of-court settlement attempts failed, the parties agreed to argue the preliminary objection by written submissions, which the defendant filed on 11/3/2015 and the plaintiff on 10/4/2015. Delivering judgment on 22/4/2015 at Kitale, Obaga J found that the defendant's submissions nowhere explained how the court lacked jurisdiction. Instead, the defendant had dwelt on the competency of the originating summons, the provisions under which it was brought, and whether a married Bukusu woman may own property. The court held that competency of an originating summons is not an issue of jurisdiction, and that the question before it was jurisdiction, not competency. Finding no jurisdictional issue raised, the court held the preliminary objection lacked merit, dismissed it, and awarded costs to the plaintiff. The originating summons itself remains to be heard on its merits.

Key legal issues

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01

Whether the preliminary objection properly raised a question of jurisdiction

Holding

The preliminary objection failed because the defendant's submissions did not address jurisdiction at all, instead raising competency of the originating summons and whether a married Bukusu woman may own property, which are not jurisdictional issues.

Reasoning

The court examined the defendant's submissions and found no indication of how the court lacked jurisdiction. The defendant instead challenged the provisions under which the originating summons was brought and questioned a married Bukusu woman's capacity to own property. The court held these were matters of competency of the summons, not jurisdiction, and since no jurisdictional issue was raised, the preliminary objection had no merit and was dismissed with costs.

p. 1

Legal principles established

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Competency of an originating summons is not an issue of jurisdiction

Court orders

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1.The defendant's preliminary objection dated 30/11/2011 is dismissed
2.Costs of the preliminary objection to the plaintiff

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, "A N W v M W [2015] KEELC 536 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/536/eng@2015-04-22

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