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ELCStruck OutNakuru/Teret/xxx suit (plaint filed 17th April 2015, Environment and Land Court at Nakuru)· [2020] KEELC 685 (KLR)

ACS v ECK & another [2020] KEELC 685 (KLR)

Environment and Land Court
12 November 2020
3,735 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court struck out both a wife's eviction suit and the husband's counterclaim because matrimonial property disputes must start with divorce in the right court.

What this practically means

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Executive summary

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This first-instance Environment and Land Court suit at Nakuru concerned a woman-to-woman marriage contracted under Kalenjin customary law. The plaintiff, a childless married woman, married the first defendant with her husband's (MAT) approval and dowry of four cows. The first defendant moved onto the suit property, Nakuru/Teret/xxx, with her seven children, including the second defendant, but bore no further children. Disagreements led clan elders to propose that the plaintiff relocate the first defendant to alternative land at Keringet; the defendants refused, and the plaintiff sued for a mandatory injunction evicting them, an order that they relocate to Keringet or Nessuit, dissolution of the customary marriage, and costs. The defendants counterclaimed for permanent orders restraining eviction and a declaration that the two acres they occupy belong to the first defendant and the children of the marriage. The court distilled three issues: its jurisdiction to dissolve the marriage, its jurisdiction over the matrimonial property dispute, and entitlement to the reliefs sought. Applying the predominant purpose test, the court found the suit property to be both matrimonial property and the matrimonial home, and the litigation to be essentially a matrimonial dispute over distribution of matrimonial property, which requires dissolution of marriage first. The court held it lacked jurisdiction over both the divorce and the property distribution, declined to salvage the matter, and struck out both the plaint and the counterclaim, ordering each party to bear their own costs in light of their close family ties.

Key legal issues

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01

Jurisdiction to dissolve a customary marriage

Holding

The Environment and Land Court has no jurisdiction to dissolve a marriage; that jurisdiction rests with the resident magistrate's court under Section 69 of the Marriage Act

Reasoning

Article 162(2)(b) and Section 13 of the Environment and Land Court Act confer jurisdiction only over environment and land disputes. Section 69 of the Marriage Act No. 4 of 2014, read with the definition of 'court' in Section 2, vests jurisdiction to dissolve customary marriages in the resident magistrate's court. The marriage between the parties still subsists, hence the prayer for dissolution, which this court cannot grant.

p. 4
02

Jurisdiction over the matrimonial property dispute disguised as a land claim

Holding

Although the ELC broadly has jurisdiction over land use and occupation disputes between spouses, the predominant purpose of this litigation is resolution of a matrimonial dispute and distribution of matrimonial property, over which the court lacks jurisdiction

Reasoning

Applying the predominant purpose test, the plaint at its core seeks eviction of a wife and children from the matrimonial home, while the counterclaim seeks a declaration of shares in the same home. Both reliefs flow from a decree of dissolution of marriage. The suit property is both matrimonial property and the matrimonial home, and distribution requires divorce first under Section 7 of the Matrimonial Property Act.

p. 5
03

Rights of a registered proprietor vis-à-vis spousal interest

Holding

Even if the plaintiff is the registered proprietor, her rights under the Land Registration Act are subject to the first defendant's spousal interest under Section 7 of the Matrimonial Property Act

Reasoning

The plaintiff relied on Sections 24, 25 and 26 of the Land Registration Act as an absolute right to quiet possession. The court held that these rights would be subject to the first defendant's spousal interest, since the suit property is the matrimonial home occupied by both spouses and their children, and matrimonial property may only be divided upon dissolution of the marriage.

p. 5

Legal principles established

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  • A suit filed in a court without jurisdiction is a nullity that cannot be remedied or transferred
  • The predominant purpose test determines whether a dispute is a land dispute for the ELC or a matrimonial dispute for another forum
  • Matrimonial property can only be divided between spouses upon divorce or dissolution of marriage

Court orders

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  1. 1.Striking out both the plaintiff's suit and the counterclaim
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162; Articles 42, 69 and 70
  • Environment and Land Court Act, 2011Section 13
  • Marriage Act No. 4 of 2014Sections 2, 68 and 69
  • Magistrates' Courts Act, No. 26 of 2015Section 5
  • Matrimonial Property Act, No. 49 of 2013Sections 2, 6, 7 and 17
  • Land Registration Act, 2012Sections 2, 24, 25 and 26
  • Environment and Land Court ActSection 13 as read with Section 17 of the Matrimonial Property Act (jurisdiction argument)

Cases cited (12)

  • Kenya Ports Authority v Modern Holdings (E.A) Limited
    [2017] eKLR
  • E. J. T v J. K. L
    [2019] eKLR
  • Estate of Cherotich Kimong'ony (deceased) - Monica Katam vs Jackson Chepkwony & Another
    [2011] eKLR
  • Agnes Kwamboka Ombuna v Birisira Kerubo Ombuna
    [2014] eKLR
  • Emily Chepngeno Ruto & 6 others v David Kiprono Koske
    [2019] eKLR
  • Simon Langat & 6 others v Rebecca Chemutai Sinei
    [2013] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service
    [2019] eKLR
  • Daniel N Mugendi v Kenyatta University & 3 others
    [2013] eKLR
  • Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Suzanne Butler & 4 Others v Redhill Investments & Another
    [2017] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011

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, "ACS v ECK & another [2020] KEELC 685 (KLR)", Case Analysis (2020). Nakuru/Teret/xxx suit (plaint filed 17th April 2015, Environment and Land Court at Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/685/eng@2020-11-12

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