J C K v J L [2016] KEELC 317 (KLR)

Environment and Land Court

31 October 2016

EOE. Obaga

1,070 words in judgment

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The bottom line

A Kenyan court ruled a husband acted unlawfully by chasing his wife from their matrimonial home — she can stay on and use the land.

What this practically means

Executive summary

The plaintiff, a wife married to the defendant under Pokot customary law in 2004 with three children, sued for a declaration that she is entitled to remain in and utilize two parcels of land at Sambut on which the matrimonial home stands. She testified that in 2010 the defendant chased her from the matrimonial home to facilitate his marriage to a second wife, forcing her to seek refuge with a neighbour and later rent a house at Makutano. The defendant conceded the marriage, that the parcels are registered in his name and that he has another wife, but denied evicting the plaintiff, saying she filed a children's case at Kapenguria Children's Court where maintenance was fixed and later revised to Kshs 7,000 monthly. The court found as a fact that the defendant chased the plaintiff away, rejecting his denial as inconsistent with his admission of a difference. Applying Section 12(3) of the Matrimonial Property Act, which prohibits eviction of a spouse from the matrimonial home during the subsistence of the marriage except by court order, and Section 17, which allows a spouse to seek a declaration of rights over contested property, the court held the eviction unlawful. It declined to order division of the properties since the marriage subsists. The court declared the plaintiff entitled to remain, own and utilize both properties and ordered each party to bear their own costs.

Key legal issues

Whether the defendant wrongfully evicted the plaintiff from the matrimonial home

Holding

He did; the eviction was without a court order and contrary to Section 12(3) of the Matrimonial Property Act

Reasoning

The court accepted the plaintiff's testimony that the defendant chased her away, finding his denial inconsistent with his admission of a difference with her. The marriage subsists and no court order authorised eviction, so the defendant's conduct was unlawful under s.12(3) of the Matrimonial Property Act.

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Whether the plaintiff is entitled to remain in and utilize the matrimonial properties

Holding

Yes; she is entitled to remain, own and utilize both properties during the subsistence of the marriage

Reasoning

Applying Section 17 of the Matrimonial Property Act, the court held a spouse may seek a declaration of rights to contested property. The plaintiff had contributed to and settled on the properties, establishing the matrimonial home there, and remains married to the defendant, entitling her to enjoy their use.

p. 2

Legal principles established

A spouse cannot be evicted from the matrimonial home during the subsistence of the marriage except by order of a court

Court orders

1.A declaration that the plaintiff is entitled to remain, own and utilize the two properties comprised in LR Nos Kaisagat/Chepkoilel Block 6/Sambut/[particulars withheld] and [particulars withheld]
2.Each party to bear his or her own costs

Authorities

Legislation

Matrimonial Property ActSection 12(3)
Matrimonial Property ActSection 17

Jurisdiction invoked: Sections 12(3) and 17 of the Matrimonial Property Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "J C K v J L [2016] KEELC 317 (KLR)", Case Analysis (2016). Land Case No. 151 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/317/eng@2016-10-31

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