1.The Applicant move the court through the Originating Summons (OS) dated 30th March 2023 seeking, inter alia, orders for distribution of matrimonial property which was acquired during the subsistence of her marriage to the Respondent. She also sought orders for the dissolution of their marriage citing irreconcilable differences. The Application is supported by an affidavit wherein she reiterates the grounds listed on the face of the application. She further sought orders for the maintenance of the child of the marriage.
2.The Respondent opposed the OS through a Notice of Preliminary Objection wherein he listed the following grounds: -1.That this Honourable Court lacks jurisdiction to hear the matter pursuant to the provisions of Section 73 (d) (ii) of the Children Act 2001.2.That this Honourable Court lacks jurisdiction to hear the matter pursuant to the provisions of Section 9 of the Magistrates’ Court Act Cap 10.3.That the parties are bound by the contracts dated 15th July 2021 and 13th August 2021 giving rise to the suit and ought to refer the dispute to arbitration.4.That the motion is premature, incompetent, an abuse of the court process and should be dismissed with costs.
3.The OS was canvassed by way of written submissions.
4.The Respondent submitted that there are courts that are designated to hear and determine children’s matters. He cited Section 73 of the Children’s Act which provides that children’s courts shall determine issues of parental responsibility, custody, maintenance and guardianship at the first instance. It was also submitted that the OS involves a claim under the customary law as defined under Section 2 of the Magistrates’ Court Act and that by dint of the provisions of Section 9 of the said Act jurisdiction to hear and determine matters relating customary law is vested in the Magistrates Court. He urged this Court to dismiss the Application as it raises issues that had already been determined through arbitration as shown in the various contracts signed at the end of the arbitral process.
5.The Applicant, on the other hand, submitted that Section 2 of the Civil Procedure Act defines the court as ‘the High Court’ or ‘subordinate courts’ in the exercise of its civil jurisdiction. She maintained the Constitution vests the High Court with unlimited jurisdiction and further, that Section 2 of the Matrimonial Causes Act lists child care as a matter that should be arbitrated upon in matrimonial causes. It was submitted that the provisions cited by the Respondent were amended by the Children Act, 2022 and are therefore not applicable to the present case.
6.I have considered the grounds listed in the Preliminary Objection, the Originating Summons and the parties’ rival submissions. The main issue for determination is whether the Preliminary Objection is merited.
7.It is trite that a Preliminary Objection should be based on a pure point of law which, if established, will mark the end of the proceedings before a court.
8.What constitutes a Preliminary Objection was discussed in the oft cited case of Mukisa Biscuits Manufacturing Ltd vs. West End Distributors (1969) EA 696 where the Judges held thus: -Sir Charles Newbold, P. in the same case further stated: -
9.The PO challenges this court’s jurisdiction to hear and determine the OS in the first instance. Jurisdiction is the authority or power vested in the court to hear and determine a matter before it. In the celebrated case of Owners of the Motor Vessel “Lillian S” vs Caltex Kenya Limited.  KLR 1 the Court held: -
10.It is trite that the jurisdiction of a court is drawn from the Constitution and legislation. Article 165 of the Constitution of Kenya grants the High Court unlimited original jurisdiction in both civil and criminal cases except those that are specifically excluded by the Constitution. This means that this Court has jurisdiction over children matters.
11.Section 90 of the Children’s Act No. 29 of 2022 provides for the designation of children’s courts while Section 91 of the same Act outlines the jurisdiction of the Children’s court. While this Court appreciates that matters relating to the maintenance of children may be determined before it, it must still pay homage to the authority of the children’s courts. I find that the Children’s Court has the jurisdiction to entertain children’s matters in the first instance. (See JKM vs. COO (Divorce Cause 52 of 2013)  eKLR, KEHC 7487 (KLR) (Family).
12.On the issue of African Customary law, I agree with the Applicant’s submissions that the sections of the law that the Respondent cited are no longer in use. Be that as it may, Section 7 of the Magistrates’ Court Act No. 26 of 2015 states as follows: -7.Civil jurisdiction of a magistrate's court(3)A magistrate's court shall have jurisdiction in proceedings of a civil nature concerning any of the following matters under African customary law —a.land held under customary tenure;b.marriage, divorce, maintenance or dowry;c.seduction or pregnancy of an unmarried woman or girl;d.enticement of, or adultery with a married person;e.matters affecting status, and in particular the status of widows and children including guardianship, custody, adoption and legitimacy; andf.intestate succession and administration of intestate estates, so far as they are not governed by any written law.
13.The Applicant averred that even though dowry was not paid according to Gusii customary laws, she was married to the Respondent with whom they had one child. The Respondent however disputed these assertions. My finding is that the appropriate forum to canvass the veracity of the Applicant’s claims, in the first instance, is before the magistrate’s court and not the High Court.
14.In the same vein, it is trite that parties should institute cases before the courts of the lowest grade that are competent to try those suits and not proceed to superior courts as the courts of first instance. I associate myself with the decision of Waweru, J. in High Court Divorce Cause No 181 of 2000, Faith Nyawira Ngatia Karungaru vs- Wilson Ngatia Karungaru (UR) where he held that divorce causes in respect of marriages contracted under the African Christian Marriage and Divorce Act (cap 151), or even those contracted under the Marriage Act (cap 150) in which the parties were Africans who professed the Christian faith, were triable, in the first instance, by subordinate courts of the first class and that the High Court had only appellate jurisdiction in respect of such marriages.
15.The above finding does not however mean that the above precedent, which is now entrenched in practise, takes away the High Court’s unlimited jurisdiction to hear and determine the matters. The practise is merely a mechanism which assists the judicial system to operate in a good and orderly fashion so as to ensure proper case management and efficient delivery of justice.
16.My finding is that since the prayers in the Applicant’s Originating Summons relate to distribution of matrimonial property and dissolution of marriage, it is my view that this Court is not the appropriate forum for such reliefs.
17.In sum, I find that Preliminary Objection dated 20th May 2023 is merited and I therefore uphold it. I direct that this matter be placed before the Chief Magistrate’s Court in Nyamira for hearing and determination. I make no orders as to costs.
18.Mention before the Chief Magistrate’s Court on 21st November 2023.
19.It is so ordered.