AKK v PKW [2020] eKLR Case Summary

Court
Court of Appeal at Nairobi
Category
Civil
Judge(s)
Warsame, Kiage & Gatembu, JJ.A
Judgment Date
October 02, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the AKK v PKW [2020] eKLR case summary, focusing on key legal principles, outcomes, and implications relevant to the judiciary.

Case Brief: AKK v PKW [2020] eKLR

1. Case Information:
- Name of the Case: AKK v. PKW
- Case Number: Civil Appeal No. 61 of 2019
- Court: Court of Appeal at Nairobi
- Date Delivered: 2nd October 2020
- Category of Law: Civil
- Judge(s): Warsame, Kiage & Gatembu, JJ.A
- Country: Kenya

2. Questions Presented:
The central legal issues the court must resolve include:
- Whether the preliminary objection raised by the respondent was valid and should have been upheld.
- Whether the High Court erred by failing to recognize the existence of a customary law marriage between the appellant and respondent.
- Whether the shares in the identified companies constitute matrimonial property.
- Whether the High Court erred in denying the appellant an injunction to preserve the matrimonial property pending the resolution of the divorce case.

3. Facts of the Case:
The appellant, AKK, and the respondent, PKW, began cohabiting in 1999 and formalized their marriage under Kikuyu Customary law in 2000, with two children born from the union. The appellant fled their home due to allegations of financial manipulation, trust breaches, and domestic violence. She filed custody and maintenance suits and sought ownership of various properties claimed to have been acquired during the marriage. The appellant's claims included properties and shares in several companies, asserting they were matrimonial property and that the respondent held them in trust for her.

4. Procedural History:
The appellant filed an Originating Summons and a Notice of Motion seeking various orders, including the preservation of properties and shares pending the determination of her claims. The respondent raised a preliminary objection, arguing that the High Court lacked jurisdiction as the existence of marriage had not been established and that the properties in question were not matrimonial property. The High Court upheld the preliminary objection, vacating interim orders and directing the appellant to pursue her claims in the Commercial Division of the High Court. The appellant appealed this ruling.

5. Analysis:
- Rules: The court considered the Matrimonial Property Act, 2013, particularly Sections 7 and 17, which govern the division of matrimonial property and the declaration of rights to contested property, respectively.
- Case Law: The court referenced previous cases, including *Mukisa Biscuit Company vs. Westend Distributors Limited (1969) EA 696*, which defines a preliminary objection, and *PNN vs. ZWN [2017] eKLR*, which clarifies that the court can issue declarations regarding property rights even if a marriage is still subsisting.
- Application: The court found that the trial court erred in limiting its jurisdiction to Section 7 of the Matrimonial Property Act, as the appellant's claims also fell under Section 17. The court concluded that the High Court had jurisdiction to consider the appellant's claims regarding the declaration of rights to property, even before the divorce was finalized.

6. Conclusion:
The Court of Appeal ruled that the preliminary objection was improperly upheld and directed that the Notice of Motion be remitted back to the High Court for hearing. This ruling underscores the importance of recognizing the jurisdiction of courts in matters concerning matrimonial property, even in the absence of a finalized divorce.

7. Dissent:
There were no dissenting opinions noted in the judgment.

8. Summary:
The Court of Appeal set aside the High Court's ruling that upheld the respondent's preliminary objection, affirming that the High Court has jurisdiction to consider claims regarding matrimonial property under Section 17 of the Matrimonial Property Act, 2013, irrespective of the status of the marriage. This decision highlights the court's role in ensuring that parties can seek declarations regarding property rights without being hindered by unresolved marital status, thereby promoting fairness in the division of matrimonial assets.

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