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ELCOtherNot stated in judgment (plaint dated 20/2/2019, filed 21/2/2019)· [2019] KEELC 2288 (KLR)

Susan Kwamboka Nyakundi v Fredrick Mathenge Macharia [2019] KEELC 2288 (KLR)

Environment and Land Court
18 July 2019
MNMwangi Njoroge
2,276 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court can hear disputes over a matrimonial home, not just land ownership, so such cases don't have to go to the Family Division.

What this practically means

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Executive summary

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This is a ruling by Mwangi Njoroge J of the Environment and Land Court at Kitale on a preliminary objection dated 11/3/2019, in which the defendant contended that the court lacked jurisdiction because the dispute concerned matrimonial property, which he said fell within the Family Division of the High Court. The plaintiff, married to the defendant since 2005 with two children, had filed a plaint and an application seeking an interim injunction restraining the defendant from interfering with parcel No. Kitale Municipality/Koitogos Block 15, where the family home stands, and sought a declaration that the property is her matrimonial home together with a permanent injunction. The court found that the defendant had, through his partial reply to the plaint and his counsel's submissions, expressly admitted that the suit land is matrimonial property, effectively settling the declaratory prayer. The court then held that under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, its mandate covers the use and occupation of land, not merely title, and that occupation of land as a matrimonial home falls within that mandate. Relying on Jane Wambui Ngeru v Timothy Mwangi Ngeru, the court affirmed that various courts enjoy concurrent jurisdiction over matrimonial property disputes where land is involved. The preliminary objection was dismissed with costs, leaving the suit and injunction application to proceed.

Key legal issues

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01

Jurisdiction of the ELC over matrimonial home disputes

Holding

The preliminary objection fails; the ELC has jurisdiction over the use and occupation of land even where the land is matrimonial property, and can grant injunctive relief protecting occupation of a matrimonial home.

Reasoning

Article 162(2)(b) grants the court power over disputes relating to the use and occupation of, and title to, land. Section 13 of the Environment and Land Court Act confers jurisdiction over 'any other dispute relating to environment and land' and empowers the court to grant injunctions and declarations. The use and occupation of a matrimonial home is use and occupation of land. The defendant's admission that the suit land is matrimonial property only amounts to an admission of part of the claim, leaving the injunction prayer for determination by this court.

p. 3
02

Effect of the defendant's admission that the property is matrimonial property

Holding

The defendant's submissions and partial reply to the plaint amount to an express admission that the suit land is matrimonial property, effectively settling prayer (a) of the plaint.

Reasoning

The defendant admitted paragraphs 3, 4 and 5 of the plaint (marriage, matrimonial home at Kibomet, two children) and his counsel's submissions asserted a presumption that the house on the parcel is the matrimonial home. The court treated these pleadings and submissions as supplementing one another, and concluded the admission was unequivocal, so the declaratory prayer was settled, leaving only the permanent injunction prayer.

p. 2

Legal principles established

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  • The Environment and Land Court's jurisdiction under Article 162(2)(b) extends to disputes concerning the use and occupation of land, including the occupation of land as a matrimonial home; the court is not confined to disputes concerning title.
  • Concurrent jurisdiction over matrimonial property disputes is vested in various courts, and the ELC may hear such disputes where they involve or relate to land.

Court orders

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  1. 1.The defendant's preliminary objection dated 11/3/2019 is dismissed
  2. 2.The defendant to pay the costs of the preliminary objection

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 165(3)
  • Constitution of KenyaArticles 42, 69 and 70
  • Environment and Land Court ActSection 13
  • Matrimonial Property Act 2013Sections 2, 6(1) and 14(a)
  • Marriage Act of 2014Not specified
  • Civil Procedure ActOrder 1A, 1B, 3 & 3A
  • Civil Procedure RulesOrder 40 Rules 1, 2, 3 & 4; Order 51 Rule 1

Cases cited (3)

  • Kabilo Chepkok -vs- Francis Chepkor Tuwei
    Eldoret ELC Case No. 57 of 2016
  • B.W.M. -vs- J.M.C.
    Murang'a ELC Case No. 379 of 2017
  • Jane Wambui Ngeru v Timothy Mwangi Ngeru
    [2015] eKLR [Nairobi ELC Suit No. 317 of 2014]
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Susan Kwamboka Nyakundi v Fredrick Mathenge Macharia [2019] KEELC 2288 (KLR)", Case Analysis (2019). Not stated in judgment (plaint dated 20/2/2019, filed 21/2/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2288/eng@2019-07-18

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