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ELCAllowedNotice of motion dated 27/05/2021 (ELC, Nakuru)· [2022] KEELC 1843 (KLR)

RW v JMN [2022] KEELC 1843 (KLR)

Environment and Land Court
3 February 2022
MNMwangi Njoroge
2,261 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 protect a spouse's share in land registered in a partner's name by blocking its sale or transfer until the case is decided.

What this practically means

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Executive summary

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RW, the plaintiff, brought a notice of motion dated 27/05/2021 under Section 12(2) of the Matrimonial Property Act, Section 68(1) of the Land Registration Act and Order 40 Rules 1 and 2 of the Civil Procedure Rules, seeking an order of inhibition against two parcels, DUNDORI/LANE BLOCK xxxx (NEW GAKOE) and DUNDORI/LANET BLOCK xxxx (NEW GAKOE), registered in the name of her husband, the defendant JMN. She deposed that the parcels were acquired during the subsisting 1993 customary marriage through joint contribution, that a matrimonial home was built on them, and that the defendant threatened to charge and expose them to foreclosure. The defendant denied her contribution, asserted sole acquisition, and raised a preliminary objection on jurisdiction. The court framed two issues: jurisdiction and whether the inhibition should issue. On jurisdiction, it held that although division of matrimonial property belongs to the High Court under Article 165(3)(a), that aspect is severable, and the plaintiff's claim of contribution challenges the defendant's title, squarely engaging the ELC's jurisdiction under Article 162(2)(b) and Section 13(2) of the ELC Act. On the inhibition, applying Section 68(1) of the Land Registration Act and the principles in Dorcas Muthoni v Michael Ireri Ngari, the court found a prima facie case with a high probability of success and a real risk of alienation rendering the suit nugatory. The application was granted in terms of prayer 3; costs were awarded in the cause.

Key legal issues

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01

Whether the ELC has jurisdiction over a matrimonial-property claim relating to title to land

Holding

The ELC has jurisdiction over the parts of the dispute relating to title, use and occupation of land; the division-of-matrimonial-property aspect is severable and belongs to the High Court but does not invalidate the claim before the ELC.

Reasoning

Article 162(2)(b) and Section 13(2) of the ELC Act confer jurisdiction over disputes relating to use, occupation and title to land. Division of matrimonial property properly lies in the High Court under Article 165(3)(a), but that portion is severable. Because the plaintiff's claim of contribution challenges the defendant's title, the ownership question falls squarely within ELC jurisdiction.

p. 3
02

Whether an order of inhibition should issue pending hearing of the suit

Holding

Yes; the applicant established a prima facie case with a high probability of success, and the suit property risked alienation rendering proceedings nugatory.

Reasoning

Under Section 68(1) of the Land Registration Act the court may inhibit registration of dealings with land. Applying the principles from Dorcas Muthoni v Michael Ireri Ngari, inhibition resembles a prohibitory injunction preserving property pending trial. The title stood in the defendant's name; absent prohibition it risked alienation, and the loss relating to matrimonial rights could not be compensated by damages.

p. 3

Legal principles established

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  • An inhibition under Section 68(1) of the Land Registration Act preserves disputed property pending trial, akin to a prohibitory injunction.
  • A claim by a spouse that she contributed to acquisition and improvement of land, challenging the registered owner's title, falls within the jurisdiction of the ELC notwithstanding that it arises in a matrimonial context.

Court orders

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  1. 1.An order of inhibition issued inhibiting registration of any dealing in respect of parcels DUNDORI/LANE BLOCK xxxx (NEW GAKOE) and DUNDORI/LANET BLOCK xxxx (NEW GAKOE) by way of transfer, charge, subdivision or any other dealing, until the final determination of the suit
  2. 2.Costs of the application to be in the cause
  3. 3.Parties to attend a virtual mention on 3/3/2022 for fixing of a hearing date

Authorities

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Legislation

  • Matrimonial Property ActSection 12(2); Section 17
  • Land Registration ActSection 68(1)
  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Constitution of KenyaArticle 162(2) and (3); Article 165(3)(a)
  • Environment and Land Court ActSection 13(2)
  • Marriage Act
  • Civil Procedure ActSection 3A

Cases cited (6)

  • B W M v J M C
    [2018] eKLR
  • AKK vs PKW
    [2020] eKLR
  • Daniel Gitau Kuria v Muthoni Mbugua Ndumo & 3 others
    [2021] eKLR
  • Dorcas Muthoni & 2 Others Vs Michael Ireri Ngari
    (2016) eKLR
  • Nasibi Aore-Vs- Jane Anyona Omutsani (Kitale Land Case No. 67 of 2011 (O.S)) as consolidated with Kitale Elc No. 86 Of 2012
  • Chepkaptul Akudi James Kukui Lortole (Kitale Land Case No. 39 of 2020)
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act No. 19 of 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "RW v JMN [2022] KEELC 1843 (KLR)", Case Analysis (2022). Notice of motion dated 27/05/2021 (ELC, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1843/eng@2022-02-03

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