MD v VM (Matrimonial Cause E001 of 2026) [2026] KEHC 5203 (KLR) (23 April 2026) (Ruling) Neutral citation: [2026] KEHC 5203 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KAKAMEGA MATRIMONIAL CAUSE E001 OF 2026 S MBUNGI, J APRIL 23, 2026 BETWEEN MD .............................................................................................................. APPLICANT AND VM .......................................................................................................... RESPONDENT RULING 1. The Respondent filed a Notice of Preliminary Objection challenging the competence of this suit on the grounds that: a. The suit is a matrimonial property dispute improperly filed as a succession cause contrary to Section 17 of the Matrimonial Property Act; b. This Court lacks jurisdiction sitting as a Probate and Administration Court; c. The Applicant lacks locus standi; d. The suit is frivolous, vexatious and an abuse of the court process. 2. The Court has considered the pleadings on record. No written submissions were filed, but the Court is nonetheless obligated to determine the objection based on the law and material before it. 3. The law on preliminary objections is well settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, where the Court of Appeal for East Africa defined a preliminary objection as a pure point of law argued on the assumption that all pleaded facts are correct. The Court further held that a preliminary objection cannot be raised where facts must be ascertained or where judicial discretion is required. 4. This principle has been reaffirmed in Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others, where the Supreme Court cautioned that preliminary objections must not be used to determine contested facts. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5203/eng@2026-04-23 1
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5. Similarly, in Attorney General v David Ndii & Others, the Court of Appeal emphasized that disputes ought, where possible, to be determined on their substantive merits rather than terminated on procedural technicalities. Issues for Determination 7. The Court identifies the following issues for determination: a. Whether this Court lacks jurisdiction by reason of how the suit was registered; b. Whether the Applicant lacks locus standi. a. Whether the Court Has Jurisdiction 8. Jurisdiction is fundamental and must be determined at the earliest opportunity. In the celebrated case of Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others, the Supreme Court held that: " a court’s jurisdiction fiows from the Constitution or legislation or both. A court can therefore not arrogate to itself jurisdiction exceeding that which is conferred upon it by law." 9. Likewise, in Owners of the Motor Vessel Lillian S v Caltex Oil Kenya Ltd, the Court held that jurisdiction is everything and without it a court must down its tools. 10. The Respondent’s argument is that the matter was filed as a succession cause and therefore this Court, sitting as a probate court, lacks jurisdiction. However, a careful perusal of the pleadings reveals that: a. The matter is expressly titled as a Matrimonial Property Cause; b. The dispute is between living parties; c. The claim concerns division and ownership of matrimonial property. 12. In Phoenix of East Africa Assurance Company Ltd v S M Thiga t/a Newspaper Service, the Court of Appeal held that jurisdiction is determined from the substance of pleadings and not procedural labels or errors. 13. The issue before this Court is therefore one of misclassification by the registry, rather than lack of jurisdiction. 14. Article 159(2)(d) of the Constitution obligates courts to administer justice without undue regard to procedural technicalities. 15. In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others, the Supreme Court held that procedural rules are handmaidens of justice and should not be used to defeat substantive claims. 16. Similarly, in Republic v Karisa Chengo & 2 Others, the Court emphasized that courts should interpret procedural issues in a manner that promotes access to justice. 17. The Court further notes that procedural lapses which do not go to jurisdiction are curable, as held in Microsoft Corporation v Mitsumi Computer Garage Ltd & Another. 18. In the present case, the error is administrative and attributable to the registry. It does not alter the substance of the dispute or the jurisdiction of this Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5203/eng@2026-04-23 2
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19. This Court, sitting in the Family Division, has jurisdiction under Section 17 of the Matrimonial Property Act to determine disputes relating to matrimonial property. 20. Accordingly, the objection on jurisdiction is without merit. b. Whether the Applicant Has Locus Standi. 21. In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others, the Supreme Court held that a party must demonstrate a sufficient legal interest in the subject matter. However, whether such an interest exists is a question that often requires evidence. 22. In Law Society of Kenya v Commissioner of Lands & Others, the Court held that where locus standi depends on contested facts, it cannot be determined as a preliminary objection. 23. In the present case, determining the Applicant’s standing would require inquiry into the relationship between the parties and the nature of the property in dispute. These are factual matters that fall outside the scope of a preliminary objection. Determination 24. The Court therefore finds that: i. The objection on jurisdiction is misconceived, as the Court has jurisdiction based on the pleadings; ii. The classification of the matter as a succession cause is a curable administrative error; iii. The issue of locus standi raises factual matters and is not a proper ground for a preliminary objection; iv. The Preliminary Objection lacks merit. Orders 25. Accordingly, the Court makes the following orders: a. The Preliminary Objection is hereby dismissed in its entirety; b. The Deputy Registrar is directed to reclassify the matter as a Matrimonial Property Cause; c. Costs shall be in the cause. d. Mention 14.10.2026 for directions. DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 23RD DAY OF APRIL, 2026. S. N. MBUNGI JUDGE In the presence:CA: Velma Mr. Mbetera holding brief for Kering for the Defendants present online. Mr. Nyaga for the Plaintiff absent though have seen a name of Julius Nyaga in the platform. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5203/eng@2026-04-23 3
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