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ELCStruck OutELC Case No. 168 of 2014· [2019] KEELC 3278 (KLR)

BMO v MO & another [2019] KEELC 3278 (KLR)

Environment and Land Court
9 May 2019
NMN.A. MATHEKA
1,208 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Even a registered landowner cannot use the Environment and Land Court to evict family members from matrimonial property—spousal disputes belong in the High Court.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of L.R. No. Kakamega/Iguhu/XXX, sued the two defendants for a declaration of ownership, eviction, and a permanent injunction, alleging trespass and wrongful occupation. She had earlier obtained an award at the Ikolomani Land Disputes Tribunal adopted as judgment in Kakamega CM Award No. 112 of 2006. The 1st defendant asserted that the plaintiff and the 2nd defendant are his wives and that the land, acquired by him in 1994 and registered in the joint names of the plaintiff and her son WO, is matrimonial property; the 2nd defendant corroborated him and the defendants urged that the matter was matrimonial and should not be entertained by the court. The court applied sections 24(a) and 26(1) of the Land Registration Act, confirming that registration vests absolute and indefeasible ownership subject only to challenge on fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition. Tracing the registration history, the court found all transactions occurred during the subsistence of the 1st defendant's marriages and held the land to be matrimonial property without a doubt. Applying sections 2, 7 and 17 of the Matrimonial Property Act, 2013, the court held that a claim for a declaration of rights to matrimonial property contested between spouses lies before the High Court, not the Environment and Land Court. The court accordingly struck out the suit with no orders as to costs, the parties being a family.

Key legal issues

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01

Whether the suit property is matrimonial property

Holding

The court found that the suit land was acquired and transferred during the subsistence of the 1st defendant's marriages to the plaintiff and the 2nd defendant, and is matrimonial property beyond doubt.

Reasoning

The court traced the registration history: the land was first registered in the 1st defendant's name, then transferred to the 2nd defendant and her son, then finally to the plaintiff. The 1st defendant acquired the land in 1994 during his marriages. Both wives remain married to him. The court therefore found the land to be matrimonial property, engaging the Matrimonial Property Act, 2013 and the principle of contribution.

p. 2
02

Whether the Environment and Land Court has jurisdiction over a claim to matrimonial property

Holding

The court held that a claim for declaration of rights to matrimonial property contested between spouses lies before the High Court under the Matrimonial Property Act, 2013, not the Environment and Land Court, and struck out the suit.

Reasoning

Although the plaintiff was the registered proprietor under the Land Registration Act, once the court found the property to be matrimonial property, section 17 of the Matrimonial Property Act governs applications for declarations of rights between spouses. The Environment and Land Court lacked jurisdiction over such a claim, notwithstanding the plaintiff's title being undisputed.

p. 2
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Effect of the plaintiff's registration as proprietor of the suit land

Holding

The plaintiff's registration vested absolute ownership under sections 24(a) and 26(1) of the Land Registration Act, subject to challenge only on fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition.

Reasoning

The court noted it was not in dispute that the plaintiff was the registered owner. It recited sections 24(a) and 26(1) of the Land Registration Act conferring absolute and indefeasible ownership on a registered proprietor. However, this title protection did not cure the jurisdictional bar arising from the matrimonial character of the property.

p. 2

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership in that person
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition
  • Ownership of matrimonial property vests in the spouses according to their contribution towards its acquisition
  • Claims for declaration of rights to matrimonial property between spouses must be brought under the Matrimonial Property Act before a court with jurisdiction, not the Environment and Land Court

Court orders

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  1. 1.The suit is struck out
  2. 2.No orders as to costs, the parties being a family

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Matrimonial Property Act, 2013Section 7
  • Matrimonial Property Act, 2013Section 2 (definition of contribution and spouse)
  • Matrimonial Property Act, 2013Section 6(3)
  • Matrimonial Property Act, 2013Section 17(1)
Jurisdiction invoked
Jurisdiction under the Land Registration Act and the Environment and Land Court Act; court held matrimonial property claims lie before the High Court under the Matrimonial Property Act, 2013

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, "BMO v MO & another [2019] KEELC 3278 (KLR)", Case Analysis (2019). ELC Case No. 168 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3278/eng@2019-05-09

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