1.What is before this court for ruling is an originating summondated January 7, 2022. The Applicant prays for the following orders:-
2.The summons are based on the grounds set out therein and the applicant’s supporting affidavit sworn on the same date. The parties got married on March 2, 1968. The marriage was dissolved on August 24, 1995. It is the Applicant's case that during the subsistence of the marriage, they acquired matrimonial properties through joint efforts and contributions directly or otherwise. One of the properties is Land parcel No. Dagoretti/Kinoo/T.281. The Applicant avers that the respondent is in possession of the documents pertaining to the aforesaid property and hence, she is fearful that the respondent could dispose of the property. The applicant states that she is in occupation of the property, and if the respondent has already sold it, then she will be at risk of eviction. The applicant further contends that she is entitled to the property in the percentage of her contribution.
3.In response, the respondent filed his replying affidavit dated March 24, 2022. He deposed that indeed he was married to the applicant and the marriage was dissolved on August 24, 1995. The respondent further deposed that he is the registered owner of the said property having purchased it on August 11, 1968. He deposed that at the time of purchase, he was working as the personnel officer Kabete Vet Lab whilst the applicant was not working. According to him, the applicant did not contribute to the purchase of the property. The respondent averred that after the applicant deserted him, which was the ground for the divorce, he found out that the applicant had relocated to the United States of America, therefore, the property cannot be said to be matrimonial property. He deposed that he disposed of the property which is now registered to a third party, therefore, the orders sought cannot be granted. Further, the applicant has not provided proof that she contributed towards the purchase and or development of the suit property.
4.According to the respondent, the Summons have been filed too late and has been caught by the Limitation of Actions Act. The respondent further filed a notice of preliminary objection dated March 24, 2022 stating that the originating summons is time-barred.
5.I have considered the originating summons and affidavits of the parties. Before analyzing the merits of the originating summons, I must first address the respondent’s preliminary objectionregarding the limitation of time. The issue of limitation goes to the jurisdiction and once a matter is statute-barred, the court has no jurisdiction to entertain it. Section 7 of the Limitation of Actions Act stipulates as follows:-
6.The applicant’s right to the suit property if any accrued when the marriage was dissolved on August 24, 1995. It is now about 28 years since the right to bring an action to distribute matrimonial property arose. The applicant needed to commence her claim for the division of the matrimonial property within the time prescribed under section 7 aforementioned. It follows therefore that by the time the applicant filed the Summons, the claim was statute barred.
7.In the case of Bosire Ongero vs Royal Media Services  eKLR the court held that the issue of limitation goes to the jurisdiction of the court to entertain claims and therefore if a matter is statute barred the court has no jurisdiction to entertain the same.
8.I have considered the foregoing and I find that limitation being a substantive law, the provisions of section 1A and 1B of the Civil Procedure Act cannot be invoked with a view to disregard the provisions of another Act of Parliament. Even if the Limitation of Act was procedural legislation, section 3 of the Civil Procedure Act provides:
10.Clearly, this court lacks jurisdiction and the matter is at its end. I will have to down my tools and take no further steps. The preliminary objection herein succeeds in its entirety with the result that the applicant’s originating summons is herein struck out with costs to the respondent.
It is so ordered.