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ELCOtherNotice of Motion Application dated 3rd November, 2021 (Nairobi ELRC/ELC suit)· [2021] KEELC 103 (KLR)

CNN v SM [2021] KEELC 103 (KLR)

Environment and Land Court
30 December 2021
MMM.D. Mwangi
1,160 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 ruled it cannot evict a spouse from property claimed as a matrimonial home; only the High Court's Family Division can decide.

What this practically means

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Executive summary

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The plaintiff, a wife, filed a notice of motion dated 3rd November 2021 seeking a mandatory interlocutory injunction evicting her husband (the defendant) from Land Parcel No. NAIROBI/BLOCK xxxx, restraining him from entering, trespassing or dealing with the property, and requiring the OCS Mihango Police Station to provide security during eviction. She claimed to be the sole registered owner who bought and developed the property before their 2015 marriage, alleging the defendant entered it in 2017 without her consent and has been abusive. The defendant opposed the application, asserting the property is matrimonial property which he jointly purchased and developed, invoking Section 12 of the Matrimonial Property Act, 2013 which prohibits evicting a spouse from a matrimonial home. He disclosed that he had filed Nairobi HCCFOS/E088/2021 before the Family Division of the High Court seeking a declaration of rights over the same property, and contended the dispute belonged to the Family Court. Justice M.D. Mwangi raised jurisdiction as the threshold issue, noting the marriage had not been dissolved and one party asserted the property was matrimonial property. Following Justice Odeny's decision in Kobilo Chepkok v Francis Chepkok Tuewei (2018) eKLR, the court held that jurisdiction over division of, or declaration of rights over, matrimonial property lies with the High Court. Without expressing any view on the merits, the court directed that the matter be placed before the Presiding Judge of the Family Division of the High Court, Nairobi, forthwith. No costs order was made.

Key legal issues

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Whether the Environment and Land Court has jurisdiction over an interlocutory application for eviction where the suit property is alleged to be matrimonial property

Holding

The court lacks jurisdiction; the matter belongs to the Family Division of the High Court, particularly as a matrimonial property suit over the same property is already pending there

Reasoning

The parties are husband and wife in an undissolved marriage; the defendant contends the property is matrimonial property within the meaning of the Matrimonial Property Act, 2013, and has filed a suit seeking a declaration of rights over it in the Family Division. Determining the plaintiff's eviction application would require apportioning spousal contributions, effectively distributing matrimonial property during a subsisting marriage, a task reserved for the High Court's Family Division.

p. 2

Legal principles established

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  • The jurisdiction over division of, or declaration of rights over, matrimonial property vests in the High Court (Family Division), even where the dispute concerns registered land.

Court orders

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  1. 1.This matter be placed before the Presiding Judge of the Family Division of the High Court, Nairobi forthwith for further directions

Authorities

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Legislation

  • Matrimonial Property ActSection 12

Cases cited (1)

  • Kobilo Chepkok v Francis Chepkok Tuewei
    (2018) eKLR
Jurisdiction invoked
Jurisdiction of the Environment and Land Court vis-à-vis the High Court (Family Division) over matrimonial property disputes 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, "CNN v SM [2021] KEELC 103 (KLR)", Case Analysis (2021). Notice of Motion Application dated 3rd November, 2021 (Nairobi ELRC/ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/103/eng@2021-12-30

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