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ELCStruck OutNot stated in the judgment as provided· [2018] KEELC 4154 (KLR)

Kobilo Chepkok v Francis Chepkok Tuwei [2018] KEELC 4154 (KLR)

Environment and Land Court
19 February 2018
1,293 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's land court cannot divide matrimonial property while a marriage is still intact; such claims belong in the High Court's Family Division.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret (M.A. Odeny, J) dated 19th February 2018 on a preliminary objection dated 23rd October 2017 raised by the defendant/respondent. By a plaint dated 17th March 2016 the plaintiff sought a declaration that she and the defendant jointly own Uasin Gishu/Bindura Settlement Scheme/8 and its subdivided portions 345 to 354, and/or settlement of their respective shares and contributions to the acquisition and improvement of the land, together with interim injunctive relief. The defendant objected that the suit, being one for division of matrimonial property, fell outside the court's jurisdiction and within the Family Division of the High Court, particularly as the marriage was subsisting. The court framed the issue as whether it had jurisdiction, applying Article 159 of the Constitution and the Mukisa Biscuit test for preliminary objections. It accepted that Article 162(2)(b) and section 13 of the Environment and Land Court Act confer jurisdiction over land title and occupation disputes, but held that the relief sought would require apportionment of spousal contributions during an undissolved marriage, amounting to distribution of matrimonial property which is best handled in the Family Division. The plaintiff's authorities were distinguished because they involved divorced parties, while the defendant's authorities supported the objection. The preliminary objection was upheld and the suit struck out with costs to the defendant.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over a claim styled as a land dispute but in substance one for division of matrimonial property in a subsisting marriage

Holding

The court lacks jurisdiction; the suit was struck out and the preliminary objection upheld

Reasoning

Although Article 162(2)(b) and section 13 of the ELC Act confer jurisdiction over title to and occupation of land, the prayers in the plaint would require the court to assess each spouse's contribution during the marriage and apportion shares. That is distribution of matrimonial property in an undissolved marriage, which falls to the Family Division of the High Court. Distinguishing authorities relied on by the plaintiff involved divorced parties.

p. 3
02

Nature of a preliminary objection

Holding

Adopting the Mukisa Biscuit test, a preliminary objection must rest on a pure point of law

Reasoning

The court applied Sir Charles Newbold P.'s formulation in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd, that a preliminary objection is akin to a demurrer, assumes the correctness of all facts pleaded by the other side, and cannot be raised where facts must be ascertained or judicial discretion exercised.

p. 2

Legal principles established

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  • A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised
  • The Environment and Land Court cannot entertain a suit that in substance seeks distribution of matrimonial property where the marriage is still subsisting; such distribution is for the Family Division of the High Court

Court orders

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  1. 1.The preliminary objection dated 23rd October 2017 is upheld
  2. 2.The suit is struck out
  3. 3.Costs of the suit awarded to the defendant/respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court ActSection 13(1) and (2)(a)-(e)
  • Matrimonial Property Act2013 (referred to generally)

Cases cited (4)

  • Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd
    (1969) EA 696
  • Jane Wambui Ngeru Vs Timothy Mwangi Ngeru
    Nairobi ELC No. 317 of 2014
  • Muranga HCCC No. 1 of 2013 (OS)
    Muranga HCCC No. 1 of 2013 (OS)
  • Peter Ndungu Njenga Vs. Sophia Watiri Ndungu
    C A No. 2 of 2000
Jurisdiction invoked
Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act

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, "Kobilo Chepkok v Francis Chepkok Tuwei [2018] KEELC 4154 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4154/eng@2018-02-19

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