Court allows the enforcement of rights that had accrued before the repeal of the Married Women's Property Act, 1882.

RW v AMK

Civil Case No 206 of 2008 (OS)

High Court at Nakuru

Janet Mulwa, J

December 16, 2015

Reported by Beryl A Ikamari

Brief facts

The Plaintiff was married to the Defendant as his second wife in 1965 under Kikuyu customary marriage rights. They separated and she moved from the matrimonial property to live with her son. She was seeking a declaration that the Defendant held a third of the matrimonial property in trust for her.

The Defendant filed a preliminary objection against the Plaintiff's suit. The main grounds of the preliminary objection was that the remedy sought by the Plaintiff amounted to division of matrimonial property and yet section 17 of the Matrimonial Property Act allowed the Plaintiff to seek remedies relating to access and benefits from the property. The Defendant also stated that the Married Women's Property Act, 1882 was repealed under section 19 of the Matrimonial Property Act, which came into effect on January 16, 2014.

The Plaintiff responded to the preliminary objection partly by stating that the Matrimonial Property Act, 2013 could not have retrospective effect. In particular, she elaborated that she filed the Originating Summons in 2008.

Issue

1. Applicability of section 17 of the Married Women Property Act 1882, on division of matrimonial property, to a claim filed before the repeal of the Married Women’s Property Act 1882 by the Matrimonial Property Act, 2013.

Statutes-interpretation of statutes-enforcement of rights that had accrued before the repeal of a statute-whether the rights provided for section 17 of the Married Women’s Property Act 1882 were capable of enforcement in a suit which was filed before the repeal of the Married Women’s Property Act 1882-Married Women’s Property Act 1882, section 17; Matrimonial Property Act, No 49 of 2013, section 19.

Matrimonial Property Act, No 49 of 2013, section 19;

19. The Married Women Property Act shall cease to extend to or apply in Kenya.

Held

1. Section 17 of the Married Women’s Property Act (1882) gave married women rights to file claims over matrimonial property. The Plaintiff was a married woman who sought to enforce rights over matrimonial property and the Act, which was still in force at the time of filing the Originating Summons, was applicable to her. The Originating Summons was therefore competent as it had been filed before the repeal of the Married Women’s Property Act, 1882.
2. The rights which parties to a marriage had before the commencement of the Matrimonial Property Act, 2013 would be determined in accordance with section 17 of the Married Women’s Property Act, 1882. The Originating Summons related to rights to matrimonial property which had accrued and were sought before the new Act came into effect.

Preliminary Objection dismissed.