Msomeri v Ngeywa & 8 others (Environment and Land Case E016 of 2026) [2026] KEELC 3680 (KLR)

(4) This court be pleased to issue an order preserving the status quo ante obtaining on Parcel Nos. 16 and 17 within the suit property as at the date immediately preceding the 2nd respondent’s unlawful entry and acts of trespass, pending the hearing and determination of this application and the main suit. (5) Pending the hearing and determination of this suit, this court be pleased to issue an order directing the immediate removal of all materials, fences, crops, and any other items unlawfully placed or erected by the 2nd respondent on Parcel Nos. 16 and 17, within the suit property, and to restore the afiected portions on the matrimonial property to their condition, prior to the 2nd respondent’s unlawful interference. (6) Pending the hearing and determination of this application and the suit, this court be pleased to restrain the 1st and 2nd interested parties, whether by themselves, their oficers, agents or otherwise howsoever, from harassing, intimidating, summoning, arresting, charging, or in any manner weaponizing the criminal justice system against the applicant and her family members in relation to dispute over the matrimonial property, save in strict compliance with the law. (7) Pending the hearing and determination of this application and the suit, the court issues an order compelling the 1st and 2nd interested parties to receive, record, and diligently process all complaints and reports lodged by the applicant and her family members in respect of Parcel Nos. 16 and 17 within the suit property, in strict compliance with the law and in a fair, impartial, and non-discriminatory manner. (8) Pending the hearing and determination of this suit, this court be pleased to issue an order directing the Oficer Commanding Station (OCS) Endebess Police Station, and the Oficer Commanding Police Division (OCPD) Endebess to ensure compliance with, and to enforce, all the orders granted in this application. 2. The grounds are set out on the face of the application and in a supporting afidavit of Jane Chemayek, sworn on 7/5/2026. The applicant deposes that she has been married under Sabaot Customary Law to the 1st respondent since 1981, and they are blessed with 6 children, who reside on the parcels 16 and 17, comprised of L.R. Nos. 7076/1, 7076/2, and L.R. No. 6138/4 at Quintim Farm, Tobor Area, Endebess Division, registered in the name of the 4th defendant as per a copy of the afidavit of marriage and an approved subdivision map, attached as JCM-(1) and (2). 3. The applicant deposes that as a family, they reside on parcels No. 16 and 17, which they jointly contributed to purchase from the 3rd respondent, have developed, build a family home, and a family business by the name Kasarani Academy School, held in trust for the family unit as per annexures marked JCM-(3), (4), and (5). 4. The applicant deposes that between 1987 and 1993, the 3rd respondent acquired an interest in the suit property through a purchaser as confirmed by the DC’s letter dated 31/5/1993, authorising possession and allocation to members proportionate to their contributions, attached as annexure marked JCM(6). 5. The applicant deposes that the individual titles are yet to be transferred to the 3rd respondent, for the subdivision has not yet been finalised, although the members' rights under Articles 27, 28, 40, 43, 45, and 60 of the Constitution are protected, as per a letter dated 4/9/2013 by the District Land Adjudication and Settlement Oficer (DLASO), attached as JCM-(7). 6. Further, the applicant deposes that with efiect from 2012, the 1st respondent has become hostile to her and has violated her rights as per Articles 28, 29, and 45 of the Constitution. The applicant also https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3680/eng@2026-06-17 2

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deposes that on 28/1/2024, a reconciliation family meeting, attended by the area chief as per annexure marked JCM-(8), instead addressed the issue of subdivision of the land only. However, on 12/2/2026, the 2nd respondent unlawfully and forcefully entered and trespassed onto the parcels No. 16 and 17 to claim the land after an alleged purchase from the 1st respondent, with a view of evicting her and the family therefrom and in the process assaulting family members as per the annexed medical report marked JCM-(9). 7. The applicant deposes that the 2nd respondent has now invaded and fenced ofi the matrimonial home, causing immense destruction, loss, and damage as per attached photographs marked JCM-10(a), (b), and (c). 8. Further, the applicant deposes that upon report to Endebess Police Station, the 2nd respondent portrayed himself as the victim and caused her family members to be arrested and arraigned in Kitale MCCR E416 of 2026, Republic -vs- Stella Chebet, as per the annexed charge sheet and a notice by DCI marked JCM-(11) and (12). 9. The applicant terms the acts of sale of the suit property as without her spousal consent or knowledge, followed by the forceful entry and eviction contrary to her right as a spouse, to use, enter, possess, and own the matrimonial home. 10. The application is opposed by the 1st respondent, through a replying afidavit sworn by Peter Mukori Ngeywo on 16/4/2026. He terms the court as lacking jurisdiction to hear and determine the suit, which is a matrimonial property dispute in nature. 11. The 1st respondent deposes that he is a member of the 3rd respondent, Member No. 74 and 75, as per the membership list attached as JCM-(4) and (5), hence a beneficial owner of Plot Nos. 16 and 17. The 1st respondent admits calling a family meeting in 2024 to divide his land as per minutes attached as PMN-1(A) and (B), wherein he gave the applicant 2 acres of the suit property, and retained 1 acre, which he later sold to the 2nd respondent and moved out due to disagreement with the applicant. 12. The 1st respondent says that the minutes did not indicate a temporary division or intention to utilize the land for only 6 years, as alleged or at all by the applicant. The 1st respondent denies that the 2nd respondent has trespassed on the 1 acre of the suit property, since he sold the same to him, upon surrendering the 2 acres to the applicant, in addition to 3 other acres of land in Chepyuk, Mt. Elgon. 13. The 1st respondent denies the alleged intimidation or harassment of the applicant and her children; otherwise, he is the one whom they have been intimidating or harassing before the suit was filed. Further, the 1st defendant denies secretly disposing of any matrimonial property as alleged or at all, save for what he has alluded to above; hence, the order sought should not issue to restrain him from dealing with the suit property, which the applicant has no right over. 14. The 1st respondent relies on written submissions dated 23/4/2026. It is submitted that jurisdiction is everything, as held in Owners of Motor Vessel Lillian “S” -vs- Caltex Oil (K) Ltd [1989] eKLR. 15. In this case, based on the preliminary objection dated 15/4/2026, it is submitted that this suit ofiends Section 17 of the Matrimonial Property Act as read together with Rule 6(1) of the Matrimonial Rules, which delegates the power to handle such a dispute to the High Court and not this court. 16. The 1st respondent submits that the substratum of this suit is a matrimonial property claim. Reliance is placed on FHJ -vs- EAR Civil Appeal No. 108 of 2019 [2025] KEC 596 [KLR] (21st March 2025) (Judgment) and IIK -vs- JKK [2025] KEHC 3537 [KLR]. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3680/eng@2026-06-17 3

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17. Jurisdiction means the power to hear and determine a suit. It is a creature of the Constitution, statute, or both, as held in Motor Vessel Lillian “S” -vs- Caltex Oil (K) Ltd (supra). Jurisdiction is everything; without it, a court has to down its tools. Jurisdiction must be there at the time of filing the suit. In S.K. Macharia & Another -vs- Kenya Commercial Bank Ltd & Others [2012] KESC 8 [KLR], it was afirmed that a court cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. 18. The jurisdiction of the Environment and Land Court and the High Court is delineated under Articles 162 2(b) and 165(3) and (5) of the Constitution. In Joseph Ombogi Ongentoto -vs- Martha Ongentoto SC Petition No. 11 of 2020, the court observed that the Matrimonial Property Act No. 49 of 2013 came into efiect on 16/1/2024. 19. The court said that under Article 45(3) of the Constitution, parties to a marriage are entitled to equal rights at the time of marriage, during, and at its dissolution, which right is inherent and indefeasible to all human beings. The court said that under Section 17 of the Matrimonial Property Act, the procedure for a title to land question between a husband and wife is by filing an Originating Summons at the High Court, and that the only way to apportion and divide matrimonial property is by each party showing the nature of their contribution. 20. The court said that Article 45(3) of the Constitution underscores the concept of equality as one that ensures that there is equality and fairness to both spouses. Further, the court held that equality advocates for such a party who may seem disadvantaged for failing to have the means to prove direct financial contribution, not to be stopped from getting a share of the matrimonial property. The court said that equality does not mean the re-distribution of the property rights at the dissolution of a marriage or assume an automatic entitlement to a 50% share, on the fact of being married. 21. The court said that under Article 45(3) of the Constitution, events are to ensure that at the dissolution of a marriage, each party to a marriage gets a fair share of the matrimonial property based on their contribution. 22. The jurisdiction and the procedure to handle matrimonial property are governed by the Matrimonial Rules 2022. The court to handle the matter is the High Court, where the value of the suit property is above Kshs. 20,000,000/=. 23. In BWM -vs- MWN & Another [2025] KEHC 1364 1 [KLR] (1st October 2025) (Judgment), the court held that the Environment and Land Court has no jurisdiction to determine issues of matrimonial property or marriage validity. 24. In LCL -vs- WLR [2025] KEELC 1165 [KLR] (12th March 2025 (Judgment), the court determined that it had no jurisdiction to decide whether the disputed properties are matrimonial or to allocate shares among the spouses, since that is preserved to the High Court. 25. Further, in IMN -vs- AMMN & Another Matrimonial Case No. 52 of 2023 [2026] KEHC 5348 [KLR] (23rd April 2026) (Judgment), the court said that as per Section 7 of the Matrimonial Property Act, for matrimonial property to be divided between the parties, dissolution of marriage must have taken place, but under Section 17 of the Matrimonial Property Act, a party can apply for declaratory orders before the marriage is dissolved, as held in AKK -vs- PKN [2020] eKLR, where the Court of Appeal held that divorce cause does not prevent a party from bringing an action for declaration of right to property before the High Court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3680/eng@2026-06-17 4

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26. In Nderitu -vs- Nderitu [1997] LLR 606, the court held that for a wife to succeed, she has to show that she was married to the husband, the property was acquired during coverture, and that she contributed directly or indirectly to the acquisition of the assets. 27. Section 93 of the Land Registration Act provides that if a spouse obtains an interest in land during the subsistence of a marriage, such shall be deemed as matrimonial property and shall be dealt with under the Matrimonial Property Act. 28. Section 12(1) of the Matrimonial Property Act provides that an estate or interest in any matrimonial property shall not, during the subsistence of a monogamous marriage and without the consent of both spouses, be alienated in any form, whether by way of sale, gift, lease, mortgage or otherwise. 29. Section 93 of the Land Registration Act provides that dealing with such property without spousal consent may render the transaction void at the option of the non-consenting spouse. Spousal consent is a condition precedent before the transfer of the matrimonial home, as held in JKN -vs- JWN [2022] eKLR, and in Kadzo Mkutano -vs- Mwamboje Kadosho & Others [2016] eKLR. 30. The 1st respondent raises a jurisdiction question that the predominant issue in the plaint dated 26/2/2026, is whether or not the suit property is matrimonial property belonging to the applicant and the 1st respondent, and so are the prayers sought therein generally and in particular, prayers (b), (d), (e), (g), and (h). Jurisdiction is to be determined by looking at the parties’ pleadings. 31. This court has looked at the pleadings by the plaintifi and the 1st defendants. Disputes touching on matrimonial property acquisition, shares thereto, and subdivision do not fall within the Environment and Land Court. The court in Kenya Ports Authority -vs- Modern Holdings E. A Ltd [2018] KECA 293 [KLR] underscored the significance of jurisdiction. Jurisdiction cannot be conferred by the consent of parties or assumed by the court. 32. As much as there are other parties to the suit, the cornerstone of the dispute is whether the suit property during its acquisition was by the contribution of the plaintifi and the 1st defendant at the time of coverture, and if the 1st defendant has dwelt with it in favour of the 2nd defendant without the consent of the spouse. All these issues require settlement by a court seized of jurisdiction, whose authority extends to invalidating any such sale or transfer. 33. The upshot is that I decline jurisdiction to hear and determine the suit as between the plaintifi and the 1st defendant. The suit is transferred to the High Court of Kenya, Kitale, for disposal of the portion falling under its jurisdiction. 34. There will be no order as to costs. 35. Orders accordingly. RULING DATED AND SIGNED, VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 17TH DAY OF JUNE 2026. HON. C.K. NZILI JUDGE, ELC KITALE. RULING DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 17TH DAY OF JUNE 2026. In the presence of: Court Assistant - Matui/Nancy https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3680/eng@2026-06-17 5

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Mr. Gemenet for the 1st defendant/respondent N/a for plaintifi/applicant N/a for the interested party https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3680/eng@2026-06-17 6

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