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ELCPartially AllowedELC NO. 751 OF 2012 (Multi-Track)· [2018] KEELC 2589 (KLR)

M W G v G E M [2018] KEELC 2589 (KLR)

Environment and Land Court
28 May 2018
EOE. O. Obaga
1,079 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court ruled that joint property documents mean no one wins sole ownership of a home bought together, and family disputes belong in family court.

What this practically means

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Executive summary

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The plaintiff, who had cohabited with the defendant since 1997 and had two children with him, sued for a declaration that plot No. [...] Utawala Embakasi belonged to her, a permanent injunction against the defendant's interference, an order restoring her to possession, general damages for loss of use, and costs. She testified that she bought the plot in October 2007 with Kshs.95,000 from an Equity Bank loan but had the defendant's name included on the certificate of ownership, later financed construction of the family house with further loans, and was evicted with the children in January 2012. The defendant, though served, did not attend the hearing; he had filed a defence and counter-claim seeking declaration of sole ownership and a half share of a motor vehicle and business proceeds with an account and audit. The court found the documentary evidence showed a joint purchase on 5.10.2007, with a certificate of ownership issued to both parties by the vendors, Omega Commercial Services Ltd. It declined to grant a sole-ownership declaration or injunction because the ownership documents showed joint ownership and the parties' relationship status was undetermined, holding that any determination of marital status and division of matrimonial property falls within the Family Division of the High Court, not the Environment and Land Court. The court allowed prayer (c) conditionally - restoration to possession if the plaintiff had not been given access under a ruling of 14th November 2013 - and granted the plaintiff only one quarter of the costs, having succeeded on a single prayer. Claims for damages and the counter-claim were not granted.

Key legal issues

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01

Jurisdiction over matrimonial status and matrimonial property

Holding

The court declined to determine whether the parties were married or to divide matrimonial property, holding those matters fall within the Family Division of the High Court

Reasoning

The plaintiff asserted mere cohabitation while the defendant pleaded marriage. The court held the question of marital status and the counter-claim for division of matrimonial property lie within the family court's jurisdiction, so it could not grant declarations on ownership premised on the parties' relationship or entertain the counter-claim.

p. 2
02

Ownership of the suit plot on the evidence

Holding

The documentary evidence established that the plaintiff and defendant jointly purchased the plot; the certificate of ownership was issued to both, so no sole-ownership declaration could issue

Reasoning

The plaintiff obtained an Equity Bank loan of Kshs.100,000, accepted the letter of offer, and a sale agreement of 5.10.2007 shows both parties purchased the plot, with a certificate of ownership issued to both by the vendors, Omega Commercial Services Ltd. The defendant also withdrew Kshs.58,350 the same day. Joint ownership defeated a sole declaration.

p. 2
03

Restoration to possession of the matrimonial home

Holding

Prayer (c) was allowed conditionally, if the plaintiff had not been allowed into the matrimonial home pursuant to the ruling of 14th November 2013

Reasoning

An earlier ruling of 14th November 2013 had already allowed the plaintiff access to the matrimonial home. The court allowed prayer (c) only if that access was not being honoured, and directed the plaintiff to consider filing a suit in a proper court to deal with family issues.

p. 2

Legal principles established

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  • Where ownership documents show joint ownership of suit property, a declaration of sole ownership cannot issue until a court of competent jurisdiction determines each party's contribution
  • The Environment and Land Court has no jurisdiction to determine whether cohabiting parties were married or to divide matrimonial property

Court orders

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  1. 1.If the plaintiff was never allowed into the matrimonial home pursuant to the ruling delivered on 14th November 2013, prayer (c) of the plaint is allowed, with liberty for the plaintiff to consider filing a suit in a proper court to deal with family issues
  2. 2.The plaintiff is granted one quarter (1/4) of the costs of the suit
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act; the court expressly declined to determine matrimonial status or division of matrimonial property as falling outside its jurisdiction

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, "M W G v G E M [2018] KEELC 2589 (KLR)", Case Analysis (2018). ELC NO. 751 OF 2012 (Multi-Track). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2589/eng@2018-05-28

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