Nimo Adan Kabare v Abdi Adan Abdi [2017] KEELC 3326 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Environment and Land Court has jurisdiction to order distribution of matrimonial property where the marriage between the parties is still subsisting
- 2.Whether the court can make orders affecting land registered in the name of a third party who is not joined to the suit
- 3.Whether the plaintiff's application and suit are competent
Key legal issues
#Jurisdiction over distribution of matrimonial property during a subsisting marriage
The court lacks jurisdiction to distribute matrimonial property relating to land before divorce or dissolution of the marriage; the suit is premature
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.
Non-joinder of the registered owner of the suit land
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
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.
Whether the suit and application were competent
Both were misconceived, incompetent, bad in law and an abuse of the process of the court
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.
Legal principles established
#- 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
#- 1.The preliminary objection is upheld
- 2.The plaintiff's notice of motion application is dismissed
- 3.The suit is struck out
- 4.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Jurisdiction under the marriage/Matrimonial Causes Act in respect of land matters, as exercised by the Environment and Land Court
Relief refused
#Plaintiff's claim for equal sharing of the commercial premises (8 shops on part of LR Bokoli/Chwele/263, Albarkadh shopping centre)
The suit was premature: distribution of matrimonial property requires divorce or dissolution of marriage, and the land's registered owner is not a party
Interim injunctive relief restraining the defendant from selling, disposing of or interfering with the premises, and deposit of rents in court
The application was misconceived and the preliminary objection was upheld
Costs
No order as to costs, the parties being husband and wife - 'The parties are husband and wife, I will make no order as to costs.'
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The court clearly will have no jurisdiction before a divorce is pronounced or the marriage is dissolved. The parties to this case are still married and that is what removes the courts jurisdiction.
This court cannot knowingly make orders that affect a registered owner of land, when it has been pointed out to the Court that the title belongs to him and when he has not been made a party to the suit.
It is the court’s view that this suit has been brought prematurely and the court therefore lacks jurisdiction at the moment.
The preliminary objection is upheld and both the application and the suit are dismissed and struck out respectively. The parties are husband and wife, I will make no order as to costs.
Issues in the judgment
#The judgment refers inconsistently to the statutory basis: paragraph [7] cites 'paragraph 7 of the matrimonial Cause Act' while the preliminary objection and the plaintiff's argument reference 'section 7 of the matrimonial Causes Act'
The land parcel number is given inconsistently as Bokoli/Chwele/263 in the plaint/application and Bokokoli/Chwele/623 in the defence
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.