JNM v COA (Matrimonial Cause E040 of 2024) [2026] KEHC 2884 (KLR) (Family) (6 March 2026) (Ruling) Neutral citation: [2026] KEHC 2884 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI (MILIMANI LAW COURTS) FAMILY MATRIMONIAL CAUSE E040 OF 2024 PM NYAUNDI, J MARCH 6, 2026 IN THE MATTER OF THE MARRIED WOMEN’S PROPERTY ACT (1882) SECTION 17 AND IN THE MATTER OF MATRIMONIAL PROPERTY ACT 2013 (UNDER ORDER 37 OF THE CIVIL PROCEDURE RULES AND SECTION 3A OF THE CIVIL PROCEDURE ACT AND SECTIONS 2,9,12(1) AND 14 OF THE MATRIMONIAL PROPERTY ACT BETWEEN JNM ............................................................................................................ APPLICANT AND COA ........................................................................................................ RESPONDENT RULING 1. The Cause herein was initiated by the Respondent’s Originating Summons dated 4th April 2024, in which she sought inter alia the following orders 1. That this Honourable Court be pleased to issue a declaration that all the under-listed properties which are registered in the names of the Defendant or any other person (buyers) are held beneficiary (sic) and/or in trust for the Plaintiff/ Applicant to wit:i. A declaration that Land Reference Number Bulbul Plot XXXX/ Residential/ Bulbul is a matrimonial property ii. A declaration that Land Reference Number Mayanja land, North Bukusu/ XXXX, Waitaluk Kapkpi Block 12/ Chamg/ 380 and Rongai Plot are matrimonial properties https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2884/eng@2026-03-06 1
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iii. 2. A declaration motor vehicles KAS XXXX, IOC XXXX and Mini Bus KBZ XXXX are matrimonial properties….. The applicant then filed this Notice of Motion dated 29th October 2025 presented under Article 159(2) and 40 (1) of the Constitution of Kenya; Section 6,7,14, and 17 of the Matrimonial Properties Act, Rule 4(a), 5(1)(b), 20, 21 and 30 (1) of the Matrimonial Property Rules, Order 40 Rules 1&2, Order 51 Rule 1 of the Civil Procedure Rules, 2010 for Orders – 1. Spent 2. That the Court be pleased to grant a temporary injunction restraining the Respondent herself her agents or whomsoever is acting on her behalf from attaching transferring, selling, conveying, charging, leasing, constructing, developing or in any way dealing with LR No. Waitaluk/ Kapkoi Block 12/ Chngei/ 648 pending the hearing and determination of this application. 3. That the Court be pleased to grant a temporary injunction restraining the Respondent herself her agents or whomsoever is acting on their behalf from attaching, transferring, selling, conveying, charging, leasing, constructing, developing or in any way dealing with LR No. Kajiado/ Ntashart/ 5957 pending the hearing and determination of this application. 4. That the Court be pleased to grant a temporary injunction restraining the Respondent herself her agents or whomsoever is acting on their behalf from attaching, transferring, selling, conveying, charging, leasing, constructing, developing or in any way dealing with LR No. Kajiado/ Ntashart/ 5954 pending the hearing and determination of this application therefore seeks the following orders- 5. That the Court be pleased to issue any other orders expedient in the circumstances. 3. The respondent has opposed her application and states that the application is defective as it seeks injunctive orders of properties that are not before the Court, and the properties are not pleaded in a substantive suit. 4. I consider the issue raised in response to prayers 3 and 4 to be preliminary and that I must address the issue of the competence or defectiveness of that application before I consider the application on its merit. The applicant has not filed a reply or counterclaim as required under the matrimonial property rules. He has instead proceeded to file a notice of motion seeking injunctive relief in respect of two properties that are not in the Originating Summons. 5. He submits that the objection raised by the applicant with regard to prayers 3 and 4 relates to a procedural requirement and that the provisions of Article 159 (d) of the Constitution of Kenya enable this Court to overlook the lapse so as to address the substantive issue. 6. The relevant provision is Order 3 of the Civil Procedure Rules, which is couched in mandatory terms. Absent the originating pleading, the Notice of motion has no feet to stand on. It is not merely a procedural technicality, as stated by the applicant. Kiage, JA in Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others [2013] eKLR stated: ... I am not in the least persuaded that article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2884/eng@2026-03-06 2
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administration of justice. This Court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is a clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned... 7. In striking out prayers 3 and 4 of the application, I rely on the decision in Proto Energy Limited v Hashi Energy Limited (2019) eKLR, where it was held as follows: Order 3 Rule (i) (ii) provides that every suit shall be instituted by way of a Plaint. As a general rule a suit can only be instituted by way of a plaint, petition or an originating summons. A Notice of Motion is not legally recognized as an originating process. A Notice of Motion can only be filed within a property instituted suit. The Applicants failed to file any originating process in this matter. I find that the attempt to institute this suit by way of a Notice of Motion renders the entire suit defective. 8. With regards to prayer 2, I have seen the title for LR No. Waitaluk/Kapkoi Block 12/Chngei/648: The property is registered in the joint names of the parties. Both are staking a claim to the asset. It is important that it be preserved so as to await the outcome of the suit. I will therefore grant that limb. 9. Consequently, the application partially succeeds with the following ordersa. Prayers 3 and 4 are stuck out. b. Prayer 2 is allowed, and the Respondent is restrained by herself, her agents, or whoever is acting on her behalf from attaching, transferring, selling, conveying, charging, leasing, constructing, developing or in any way dealing with LR No. Waitaluk/ Kapkoi Block 12/ Chngei/ 648 pending the hearing and determination of the Originating Summons. c. The Respondent will file his response within 14 days. Leave granted to the applicant to file a further affidavit in response within 7 days of service. d. Mention before the Deputy Registrar on 30th March 2026 to confirm compliance and take further directions. 10. On account of the relationship between the parties, there shall be no order as to costs. 11. Parties are at liberty to exercise their right of appeal within 30 days It is so ordered DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 6TH DAY OF MARCH, 2026. P. M. NYAUNDI JUDGE In the presence of: Ng’alamoi Court Assistant Ms. Kamau holding brief for Swaka for Applicant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2884/eng@2026-03-06 3
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Mwariri for Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2884/eng@2026-03-06 4
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