PWK v EWK (Miscellaneous Cause E171 of 2021)  KEHC 15348 (KLR) (Family) (17 November 2022) (Ruling)
Neutral citation:  KEHC 15348 (KLR)
Republic of Kenya
Miscellaneous Cause E171 of 2021
AO Muchelule, J
November 17, 2022
1.The applicant P.W.K. and the respondent E.W.K. are Kenyans. They got married under Kikuyu customary law in July 1998, and have a daughter L.A.M. who was born on August 2, 1998. The couple moved to the United States of America (U.S.A). The applicant has filed Divorce Petition No. 23 of 2020 against the respondent at the Chief Magistrate’s Court at Nairobi. The petition has not been heard and determined.
2.The instant notice of motion dated September 22, 2021 was filed by the applicant seeking that, pending the hearing and determination of the above petition, this court does issue a temporary injunction restraining the respondent, and all those acting under him, from selling, transferring, alienating, disposing, charging or otherwise interfering with the following properties which she claimed were matrimonial properties acquired and/or developed using resources that they had jointly contributed to:-a)Gilgil/Gilgil Block 1/XXXXb)Gilgil/Gilgil Block 1/XXXX;c)Tinganga/Cianda Block 1/XXX;d)Tigoni/Mambrouke Block 1/XXX; ande)Tigoni/Karanjee Block XXXX.She stated that after the finalisation of the divorce cause she will file a cause of the determination of matrimonial property.
3.The respondent opposed the application and, among other things, denied that the properties were matrimonial property between them. His case was that he alone acquired the properties after the couple was divorced in 2011 by the Circuit Court of Jackson County at Kansas City, Missouri in the USA following his petition.
4.According to the applicant the parties are still married until the Chief Magistrate’s Court has determined her petition.
5.This notice of motion was brought under, among other provisions, Order 40 rule 1 of the Civil Procedure Rules. Order 40 rule 1 provides as follows:(a)that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or(b)that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.”
6.It is evident that there is no suit pending before this court which could have formed the basis of this notice of motion under Order 40 rule 1. A suit for the determination of matrimonial property under the Matrimonial Property Act, No. 49 of 2013 is supposed to be brought by way of originating summons. No such summons were filed in this court. The pending divorce proceedings before the subordinate court cannot be the suit contemplated under Order 40 rule 1 as they are not before this court, and this court cannot be seen to be estimating their probability of success under, for instance, Giella v Cassman Brown & Co. Ltd.  EA 358 as the matter was before another court. In any case, those proceedings were not brought for the determination of matrimonial property between the applicant and the respondent.
7.That being the case, the present application is misconceived as the court’s jurisdiction to hear and determine it has not been properly invoked. The motion is struck out with costs.
DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 17TH DAY OF NOVEMBER 2022A.O. MUCHELULEJUDGE