Kimotho v Kimotho (Environment and Land Case E056 of 2025) [2026] KEELC 2222 (KLR)

Nature of Proceedings: The Defendant submits that the proceedings herein are civil in nature, which contradicts Rules 4 and 5 of the Matrimonial Property Rules. Procedural Non-compliance: The claim is alleged to violate Rules 7(3), (4), and (5) of the Matrimonial Property Rules. Protection of Defendant: The Defendant relies on Rule 9 of the Matrimonial Property Rules for protection. Directions 4. The court directed that the Preliminary Objection be canvassed by way of written submissions. The parties duly complied and their submissions have been considered in the writing of this ruling. Analysis and Determination 5. The issue for determination is whether the Preliminary Objection dated 4th August 2025 has merit. 6. The Defendant’s objection is founded principally on the argument that this suit is premature and incompetent because it contravenes the Matrimonial Property Act. The Defendant submits that under Section 7 of the Act, division of matrimonial property can only occur upon the dissolution of the marriage. The Defendant further contends that the suit violates Sections 12(3) and 14 of the Act and that the proper procedure, pursuant to Rules 4, 5, and 7 of the Matrimonial Property Rules, ought to have been by way of Originating Summons. 7. Conversely, the Plaintifi submits that this suit is not a claim for the division of matrimonial property, but rather a claim based on fraud. The Plaintifi argues that he is seeking the cancellation of Title to Land Parcel No. Ngong/Ngong/13400 on the grounds that the Defendant had it fraudulently registered in her name. Consequently, the Plaintifi avers that the provisions of the Matrimonial Property Act regarding division of matrimonial property do not apply in this case. 8. The test for what constitutes a valid Preliminary Objection is well-settled. I am guided by the celebrated landmark case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, which was cited by the Defendant. In that case, the Court of Appeal for East Africa held as follows: “ A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration... a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.” 9. Applying this threshold to the instant case, the Court must determine if the objection raises a pure point of law that can be settled on the assumption that all facts pleaded by the Plaintifi are correct. 10. A cursory look at the plaint reveals that the Plaintifi has expressly pleaded fraud as the cause of action. The Plaintifi seeks the cancellation of the title, alleging it was obtained fraudulently and registered in the Defendant's name. The Plaintifi explicitly submits that, "The suit herein... is not seeking for division of matrimonial property upon divorce but is based on fraud". https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2222/eng@2026-02-05 2

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11. The Defendant’s objection asks this Court to strike out the suit on the basis that it seeks division of matrimonial property prematurely. However, to sustain this objection, this Court would first have to determine as a matter of fact whether the suit property is indeed "matrimonial property" validly held, or whether the registration was procured by fraud as alleged by the Plaintifi. 12. This court is of the view that a Preliminary Objection "cannot be raised if any fact had to be ascertained”. Whether or not fraud occurred is a factual issue that requires the production of evidence and the testing of such evidence through cross-examination. It cannot be determined in limine. 13. Consequently, I find that the issues raised by the Defendant require the ascertainment of facts. They are not pure points of law suitable for disposal by way of a Preliminary Objection. The proper forum to determine the validity of the title and the allegations of fraud is a full trial, not a summary dismissal. 14. For the reasons foregoing, the Preliminary Objection dated 4th August 2025 lacks merit and is hereby dismissed with costs to the Plaintifi. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 5TH DAY OF FEBRUARY 2026. M.D. MWANGI JUDGE In the virtual presence of: M/S. Wangechi Munene holding brief for Mr. Mbugua Waihiga for the plaintifi. Mr. Githuka for the Mr. Itaya for the defendant. Court Assistant- Mpoye M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2222/eng@2026-02-05 3

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