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ELCStruck OutNot stated in the judgment (original originating summons, Kericho ELC registry context not confirmed)· [2021] KEELC 1282 (KLR)

Lucy Jebet Kiptoo v Kiptoo Kurui & 3 others [2021] KEELC 1282 (KLR)

Environment and Land Court
1 November 2021
794 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cannot divide a married couple's property while their marriage continues — such disputes belong in the High Court's Family Division.

What this practically means

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Executive summary

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This ruling by E.O. Obaga, Judge of the Environment and Land Court at Eldoret, determined a preliminary objection dated 26th May 2021 raised by the 1st Defendant, the husband of the Plaintiff. The Plaintiff had filed an originating summons seeking a declaration that two properties - Olainguse/Olainguse Block 1 [Olainguse]18 and Kondoo Farm No. 382 - were jointly owned matrimonial properties, joint registration in her name and that of the 1st Defendant, eviction of the 1st Defendant's second wife (the 2nd Defendant) from land on which the 1st Defendant had settled her, an order compelling the 1st Defendant to provide the second wife alternative accommodation, and eviction of the 3rd and 4th Defendants who had purchased portions of the land. The 1st Defendant objected that the ELC lacked jurisdiction over division of matrimonial property, which lies with the High Court Family Division, and that matrimonial property cannot be divided during the subsistence of a marriage. The court held that since the parties' marriage had not been dissolved, division of matrimonial property could not arise; that under Section 17 of the Matrimonial Property Act, disputes between spouses over property are entertained by the Family Division of the High Court; and that the eviction claims against the 2nd, 3rd and 4th Defendants could not clothe the ELC with jurisdiction. The court distinguished the Plaintiff's authorities and upheld the preliminary objection on both limbs, striking out the originating summons and all applications under it, with each party bearing their own costs.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over matrimonial property disputes

Holding

The ELC lacks jurisdiction to entertain division of matrimonial property or declarations of rights in it; such petitions lie in the Family Division of the High Court under Section 17 of the Matrimonial Property Act

Reasoning

Section 17 of the Matrimonial Property Act confines disputes between spouses over property to a petition for declaration of rights in the Family Division of the High Court. Entertaining such a claim would require taking evidence on each spouse's contribution, which the law expressly prohibits during marriage and which is outside the ELC's jurisdiction.

p. 2
02

Whether matrimonial property may be divided during the subsistence of a marriage

Holding

No; division of matrimonial property is only permissible upon dissolution of marriage, and the parties' marriage here is still subsisting

Reasoning

There was no contention that the Plaintiff and the 1st Defendant are married and that the marriage has not been dissolved. Since the Matrimonial Property Act permits division only upon dissolution of marriage and the marriage is subsisting, the question of division cannot arise. The court therefore upheld the preliminary objection on both limbs and struck out the originating summons.

p. 1
03

Whether an eviction claim against third parties can confer jurisdiction on the ELC

Holding

No; the underlying issue remains division of matrimonial property, and the eviction claim does not clothe the court with jurisdiction

Reasoning

The Plaintiff argued her claims included eviction of the 2nd, 3rd and 4th Defendants from purchased portions. The court held that the mere fact the Plaintiff seeks eviction of those Defendants cannot confer jurisdiction, since the underlying issue is division of matrimonial property, which neither the ELC nor the High Court can entertain while the main parties remain married.

p. 2

Legal principles established

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  • Division of matrimonial property can only occur upon dissolution of marriage
  • The Family Division of the High Court, not the Environment and Land Court, has jurisdiction over petitions under Section 17 of the Matrimonial Property Act for declaration of rights in matrimonial property

Court orders

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  1. 1.The Preliminary Objection by the 1st Defendant is upheld on both limbs
  2. 2.The originating summons is struck out together with all applications under it
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Matrimonial Property ActSection 17

Cases cited (2)

  • Lucy Jebet Kiptoo =vs= Kiptoo Kurui
    Kericho ELC No. 20 of 2017 (OS)
  • John Kimani Njenga =vs= Margaret Wanjiru Kanyiri & 2 others
    [2015] eKLR
Jurisdiction invoked
Not expressly invoked; the court reasoned on jurisdiction under Section 17 of the Matrimonial Property Act and the limits of the Environment and Land Court's jurisdiction

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, "Lucy Jebet Kiptoo v Kiptoo Kurui & 3 others [2021] KEELC 1282 (KLR)", Case Analysis (2021). Not stated in the judgment (original originating summons, Kericho ELC registry context not confirmed). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1282/eng@2021-11-01

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