Rwg Alias Rwg v Jgk

The Defendant/Respondent’s Submissions. 3. The respondent submits that the Matrimonial Property Act regulates rights between spouses during and on dissolution of marriage; it does not confer on a spouse a free standing power to convert property that remains part of a deceased’s estate into matrimonial property where the essential incidents of ownership and vesting remain within the estate and succession process. The respondent further submits that where the property remains registered in the deceased’s name and is subject of a pending succession cause, courts have held that issues of ownership, distribution and the protection of estate property are matters for the probate/succession forum and not for adjudication in the first instance under matrimonial property proceedings. To support his contentions, the respondent relies on the case of Re Estate of the Late George Dipondo (Deceased) (Succession Cause E001 of 2023) [2025] KEHC 15682 (KLR) (31 October 2025). 4. The respondent submits that the applicant has not provided proof showing a registered transfer or other documentary act that would perfect a gift of the land to him prior to the death of the purported donor. The respondent argues that it is established law that a gift inter vivos in respect of land must be complete and perfected in accordance with the requirements of law. An oral promise or mere occupation or photographs do not amount to a completed gift of land. The respondent further argues that where a transfer was not effected, the land remains part of the estate and must be traced and accounted for in the succession cause; the donee alone cannot rely on an unperfect promise to create a proprietary interest and thereby convert estate property into matrimonial property. The Plaintifi/Applicant’s Case 5. The applicant submits that the estate in question has already been distributed pursuant to a confirmed grant. The applicant argues that she is not challenging the succession proceedings or the confirmed grant but is seeking a declaration of matrimonial rights against the respondent in respect of the suit properties which properly falls within the jurisdiction of this Honourable Court. Relying on the case of Re Estate of Daniel Khasievera Anusu (Deceased) [2022] eKLR, the applicant submits that courts have consistently held that once a confirmed grant has been issued, the work of the succession or probate court is largely at an end and it no longer has a role in overseeing the subsequent transmission or use of the assets. 6. The applicant further relies on the case of Re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR and submits that the jurisdiction of the succession or probate court is limited to matters directly concerning the estate, its survivors, beneficiaries and the distribution of assets pursuant to the Law of Succession Act. The applicant argues that once the grant is confirmed, the property vests in the personal representative who holds it in trust for the beneficiaries. Confirmation of the grant crystallizes the entitlement of the beneficiaries and any subsequent registration or transfer in the name of the beneficiaries is merely procedural, designed to give effect to the rights already conferred by the confirmed grant. Thus the absence of registration does not negate the beneficiaries’ proprietary interests in the estate property. Registration is simply the formal implementation of the grant and does not create the rights, the entitlement arises upon confirmation of the grant. The applicant argues that the respondent cannot plausibly deny ownership of the parcels while simultaneously claiming the authority to sell or otherwise deal with the property. 7. The applicant argues that the respondent having been expressly named as a beneficiary in the confirmed grant for the two parcels of land is attempting to find refuge in the shadow between confirmation and registration in a manner that would deny her rightful interest. The applicant submits that since their marriage, the suit properties were appropriated as the parties’ matrimonial home where they https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5938/eng@2026-04-30 2

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settled and raised their family. The applicant further submits that she has resided on the properties continuously since 1984 during which period the parties established, developed and sustained their matrimonial home and brought up their three children. The character of the properties crystallized into matrimonial property by virtue of their long use, occupation and centrality to the family unit thereby vesting in her a recognizable beneficial interest. Thus the properties qualify as matrimonial property within the meaning of Section 6 of the Matrimonial Property Act, 2013. 8. The applicant further submits that she made direct and substantial contribution both monetary and non monetary to the development and improvement of the matrimonial home including and through income derived from her hawking business and her sole responsibility in raising the children after the respondent’s desertion in 1991. Her long occupation, developments effected on the land and the fact that it remains her only home underscore her beneficial interest and to permit the respondent to unilaterally dispose of the suit properties would defeat her proprietary rights and render her homeless contrary to the principles of equity and the protective intent of matrimonial property law. 9. The applicant submits that she and the respondent are still legally married and that the suit properties were acquired during the subsistence of their marriage, albeit through inheritance by the respondent by his mother, she contributed to building their matrimonial home thereon and still resided on the suit land portions thereof the properties cannot be excluded from being part of matrimonial property. To support her contentions, the applicant relies on the cases of SN vs FM [2019] eKLR and ENK vs JNK [2015] eKLR. 10. Relying on the case of Mukisa Biscuit Manufacturers Ltd vs West End Distributors Ltd (1969) EA 696, the applicant argues that the grounds advanced by the respondent invite the court to determine whether there existed a completed gift inter vivos, whether the respondent holds proprietary interests in the suit property and whether the applicant made contributions sufficient to warrant recognition of matrimonial property rights under the Matrimonial Property Act, which issues are inherently factual requiring the court to examine evidence and cannot be solved at the preliminary stage. Thus, these issues cannot be sustained as a valid preliminary objection. The Law Whether the preliminary objection is sustainable 11. The case of Mukisa Biscuits Manufacturing Ltd vs West End Distributors (1969) EA 696 is notorious on the issue of what constitutes a preliminary objection. The court observed thus:…..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. 12. Sir Charles Newbold P. stated: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 has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop. 13. Similarly the Supreme Court in the case of Hassan Ali Joho & Another vs Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2013 [2014] eKLR held that:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5938/eng@2026-04-30 3

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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. 14. Further in the case of Hassan Nyanje Charo vs Khatib Mwashetani & 3 Others, [2014] eKLR the court held that:Thus a preliminary objection may only be raised on a ‘pure question of law.’ To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record. 15. Evidently, a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law. 16. The respondent argues that the court lacks jurisdiction to declare the suit properties as matrimonial property when they form part of the estate of his deceased mother Hannah Wangui Kiarii vide Succession Cause No. E008 of 2023. 17. The issue of jurisdiction is a fundamental one as was held in the case of Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd (1989) eKLR, the Court of Appeal held:Jurisdiction is everything. Without it, a court has no power to make one step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. 18. On perusal of the record, both parties annexed a Certificate of Confirmation of Grant from Ruiru Chief Magistrate’s Court Succession Cause No. E008 of 2023 In the Matter of the Estate of Hannah Wangui Kiarii dated 14th August 2024. The said grant indicates that the respondent is the sole beneficiary of LR. Nos. Ruiru Kiu/Block 2 (Githunguri)/14444 and 14445. The respondent has further annexed certificates of title which show that his deceased mother is the registered owner of the said properties. It is, therefore, clear that the respondent has not undertaken or completed transmission process. That notwithstanding, it is evident that the succession cause has been concluded and therefore the succession court has become functus officio. Therefore this court has the jurisdiction to handle the matter on whether the suit properties were acquired during the subsistence of the marriage between the parties and whether the applicant made any contributions to the same thereby the properties becoming matrimonial properties. These issues as raised are issues of fact which would require parties to ventilate their individual cases through evidence. 19. Accordingly, the preliminary objection is not sustainable as it raises questions of fact as opposed to being points of law. I find the preliminary objection dated 12th November 2025 lacking merit and it is hereby dismissed with costs. 20. The costs of this application shall abide in the suit. 21. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 30TH DAY OF APRIL 2026. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5938/eng@2026-04-30 4

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