(Being an appeal from the judgment of Hon. J.A Otieno SRM in Embu CM-ELC NO.E059 of 2021 delivered on 14th June 2023)
1. The Appellant herein was the Plaintiff before the trial court wherein she had sued the Respondents vide a Plaint dated 21/10/2021. In the said Plaint, the Appellant had sought, inter alia, an order that the registration of land parcel No’s Gaturi/Weru/12716 and 12717 in the names of the 1st and 2nd Respondents respectively be cancelled and the same be reverted to land parcel No. Gaturi/Weru/8006 in the name of Patrick Kung’u Muturi.
2. It was the Appellant’s contention was that she was married to the 1st Respondent and that at all material times, the 1st respondent was the registered proprietor of the whole of land parcel Gaturi/Weru/8006 measuring approximately 0.28 Ha. She averred that the said land was bought during the subsistence of the marriage and that she contributed financially towards acquisition of the land. She stated that the 1st Respondent however secretly sold the land to the 2nd Respondent and it was subdivided into parcels 12716 and 12717. She stated that the 1st Respondent transferred the land to the 2nd Respondent without following due process and that the actions were malicious and fraudulent with the intention of depriving her of her interest in their matrimonial property. She set out the particulars of fraud against the Respondents.
3. The 1st Respondent in their statement of defence dated 21/02/2022 averred that the suit land was individually owned by him and that he bought it as his retirement project a fact that was known and agreed to by the Appellant. He denied that the land was matrimonial property or that the Appellant had a stake in it and averred that he followed due process in selling the land to the 2nd Respondent. He denied the particulars of fraud set out against him.
4. The 2nd Respondent in their statement of defence dated 17/11/2021 averred that the transaction for purchase of the suit land was not a secret and that the Appellant was aware of the transaction. He denied the particulars of fraud set out against and urged that the Appellant was not entitled to the reliefs sought
5. When the former suit came up for directions, the parties agreed to proceed with the hearing by way of viva voce evidence.
6. PW1 Fraciah Wanjiku Kung’u adopted her witness statement dated 17/01/2022 as her evidence in chief. She produced a copy of a Marriage Certificate, a copy of the title to land parcels 8006 and 12716, the green card for land parcel 8006, an acknowledgement dated 25/03/2010, searches for land parcel 12716 and 12717, a loan statement from Winas Sacco and a power of Attorney dated 10/05/2011 as Plaintiff Exhibits 1 to 11.
7. She testified that took a loan of Kshs. 270,000 from Winas Sacco to finance development of the suit land. She stated that their matrimonial home is registered in the 1st Respondents name including some of their other properties. She further stated that she contributed Kshs. 300,000 in the purchase of the suit property while the 1st Respondent contributed Kshs. 100,000. She stated that she had no intention of instituting divorce proceedings against the 1st Respondent but he had however threatened to file for divorce. She maintained that she was not aware of the transfer of the suit land to a 3rd party until she learnt of the same from the Land Control Board.
8. PW2 David Njeru Harrun adopted his witness statement dated 17/01/2022 as his evidence in chief. He testified that he sold the suit land to the 1st Respondent who was accompanied by his wife being the Appellant. He stated that the sale agreement was made between him and the 1st Respondent.
9. PW3 Mathew Muturi Kung’u the Appellant and the 1st Respondents son, adopted the witness statement dated 09/02/2022 as his evidence in chief. He testified that the 1st Respondent is the registered owner of the suit land but that it was jointly owned by his parents. He stated that he was not involved in any transaction over the land.
10. DW1 Patrick Kung’u Muturi adopted his witness statement dated 21/02/2022 as his evidence in chief. He produced in evidence a copy of the title deed for land parcel 4685, copies of searches for land parcels Gaturi/Githimu/1644 and Gaturi/Weru/8006, a copy of a police abstract and Kenya Gazette, the mutation for land parcel 8006, a copy of a title deed for land parcel 4687 and Loc 4/Gakara/1112, a sale agreement dated 16/11/2009, a notification of approval/disapproval for development, a statement from Harambee Sacco Society Limited and photographs showing the Appellants rental houses on land parcel Gaturi/Githimu/1644 as Defendants Exhibits 1-12.
11. He testified that the Appellant was his wife since 1986. He stated that land parcel Gaturi/Weru/ 2746 was sold to him by PW2 and that he subdivided it into Gaturi/Weru/8006 and 8007. He sold parcel 8007 to the 2nd Respondent and subdivided parcel 8006 into parcels 12716 and 12717. He averred that he sold parcel 12717 to the 2nd Respondent whereas land parcel 12716 is in his name. He averred further that his wife owns land parcel Gaturi/Githimu/1644.
12. He testified that the Appellant did not make any payment towards purchasing the original land parcel whereas he paid the sum of Kshs. 100,000 and an additional Kshs. 400,000 which was to be paid after obtaining the Land Control Board consent. He maintained that they had another property in their names being Gaturi/Weru/4655 and that two others were in the Appellants name, being Gaturi/Githimu/1644. He stated that he purchased the suit land from his savings at Harambee Sacco. He stated that he did not obtain the Appellants consent when selling land parcel 8006 as they had an oral agreement that it was his retirement plan. He maintained that he was not aware that the Appellant took a loan to purchase the suit land and that he only heard that she paid PW2.
13. DW2 Charles Mwangi Muga adopted his witness statement dated 17/11/2021 as his evidence in chief. He produced the title deed for land parcels 12717 and 8007 and photographs as Defendant’s Exhibits 1 to 3 respectively. He testified that He purchased the suit land from the 1st Respondent and fully complied with all statutory requirements and that he has been in possession of the land. He further testified that he has purchased two parcels of land from the 1st Respondent being parcels 12717 and 8007 and that the Appellant represented the 1st Respondent at the Land Control Board during the sale of land parcel 8007. He stated that he did not know whether the Appellant was involved in the sale of parcel 12717.
14. Upon analyzing and determining the suit before it, the trial court found that the Appellants claim, though framed as seeking the cancellation of titles to land parcels 12716 and 12717 and reversion to the original parcel 8006, would in substance amount to a declaration that the suit property is matrimonial, a matter which falls outside the trial court’s jurisdiction. The suit was consequently dismissed with costs to the Respondents.
15. The Appellants’ were aggrieved with the impugned decision and preferred the present Appeal on the following grounds;
a. That the Learned Trial Magistrate erred in Law and fact when she held that she lacked jurisdiction to hear the suit before her.
b. That the Learned Trial Magistrate erred in Law and fact when she failed to analyze the evidence as tendered by the Appellant
c. That the Learned Trial Magistrate erred in Law and fact when she failed to consider the fact that the Appellant's case was seeking orders based on the fact that she had contributed towards purchase of the suit land.
d. That the Learned Trial Magistrate erred in Law and fact when she held that the Plaintiff's suit was purely a claim on matrimonial property.
e. That the learned Magistrate erred in Law and fact when she raised and resolved the issue of jurisdiction on her own motion when parties were not given a chance to address the issue.
f. That the decision by the Trial Magistrate was against the weight of evidence and in contravention of the rules of natural justice.
g. That the Learned Trial Magistrate erred in Law and fact when she awarded costs to the Respondents.
16. The Appellant sought to have the appeal allowed, and the suit allowed as prayed in the plaint before the trial court as well as cots of the appeal to be borne by the Respondents.
17. When the appeal came up for directions, the parties agreed to canvass the appeal by way of written submissions. The Appellant filed submissions through the firm of Victor L. Andande & Company Advocates dated 26/02/2025.
18. She submitted that the trial court erred in law and fact in holding that it lacked jurisdiction. It was argued that the court downed its tools on the mistaken presumption that the suit concerned subdivision of matrimonial property, yet the claim was premised on the Land Registration Act and sought cancellation of registrations effected without spousal consent, a matter properly falling within the jurisdiction of the Land Court. They relied on the case of CKS versus JSS & Another (Matrimonial Cause No. 1 of 2019)(2022)KEHC 12495(KLR) to support that position. It was further submitted that the authority relied upon by the Appellant being the case of MWK versus SKK & 5 others (2018) Eklr which was an Environment and Land Court case was not considered by the trial court.
19. The Appellant further submitted that the trial court failed to analyse the evidence showing that the suit land was matrimonial property and that the Appellant had contributed towards its acquisition, and that such evidence was disregarded solely on the basis of the finding on jurisdiction. It was argued that the court ought to have considered the evidence and, in any event, issued orders preserving the property. It was submitted further that the trial court erred by raising and determining the issue of jurisdiction suo motu without affording the parties an opportunity to address the court on the issue therefore making an erroneous finding. They relied on the case of Joseph Ndegwa & Domisiano Kamencu versus M’abutu M’rinyu, land Adjudication & Settlement Officer Tigania District & Attorney General (2022) KEELC 1817 to support that position. They urged that the appeal be allowed.
20. The 1st Respondent filed submissions through the firm of Njiru Mbogo & Company Advocates dated 14/10/2024.
21. He submitted that, the trial court correctly held that they lacked jurisdiction to hear the suit and properly downed their tools on that basis. They argued that the central issue before the trial court was whether land parcel number Gaturi/Weru/8006 was matrimonial property. It was submitted that the Appellant herself had pleaded, at paragraph 5 of the plaint, that the suit land was purchased during the subsistence of the marriage between the Appellant and the 1st Respondent and that she had contributed towards its acquisition. The trial court was therefore right in concluding that the property was matrimonial in nature and that it lacked jurisdiction to determine the dispute.
22. It was submitted further, that with respect to the other grounds of appeal, namely the alleged failure to analyse evidence, failure to consider contribution by the Appellant, the finding that the suit was purely a matrimonial property claim, the court’s raising of the issue of jurisdiction suo motu, and the allegation that the decision was against the weight of evidence and the rules of natural justice, the 1st Respondent submitted that once the trial court had found that it lacked jurisdiction, it was not necessary for it to deal with any other issues in the suit.
23. The 1st Respondent further submitted that the trial court properly relied on the decision in EMW v RMK (2002) to the effect that distribution of matrimonial property in an undissolved marriage is best left to the Family Court, and on the principle in Owners of the Motor Vessel “Lillian S” versus Caltex Oil (Kenya) Ltd (1989) KLR 1 that jurisdiction is everything and that a court without jurisdiction has no power to take any step.
24. The 2nd Respondent filed submissions through the firm of Mwangi Kennedy & Company Advocates dated 20/01/2025.
25. He submitted that the learned trial magistrate correctly found that the dispute between the Appellant and the Respondents was matrimonial in nature and that she therefore lacked jurisdiction to hear and determine the suit. It was argued that, from the pleadings and the oral evidence, the dispute concerned spouses who were still married, and that the Land Court had no jurisdiction to determine whether the property was matrimonial or to inquire into the contribution of each spouse.
26. The 2nd Respondent relied on the case of Kobiko Chepkok versus Francis Chepkok Tuwei (2018) Eklr to submit that where a court is required to interrogate the contributions of each spouse and to apportion rights in property during a subsisting marriage, such a dispute amounted to determination and distribution of matrimonial property, which is best handled by the Family Division of the High Court. He further submitted that the Appellant had not sought a declaration that the property was matrimonial. Instead, her prayers were solely for revocation of title and being registered jointly with the 1st Respondent.
27. He submitted that the trial court did not err in downing its tools after finding that it lacked jurisdiction. He submitted further, that without prejudice, there was no fraud in the transfer of land parcel number Gaturi/Weru/12717 to the 2nd Respondent. It was argued that although the Appellant pleaded various particulars of fraud, she did not challenge the process of obtaining Land Control Board consent, the execution of the transfer instrument or the registration of the land in the name of the 2nd Respondent. It was contended that the Appellant failed to prove any ground to warrant cancellation of title.
28. The 2nd Respondent further relied on section 26 of the Land Registration Act and submitted that a certificate of title is prima facie evidence of proprietorship and may only be challenged on the ground of fraud or misrepresentation to which the proprietor is proved to be a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme, none of which had been proved in the present case. He urged that the appeal lacked merit and that it ought to be dismissed.
29. The court has considered the record of appeal as set out above. The court is of the view that the main issue for determination is whether the trial court erred in holding that it lacked jurisdiction to determine the suit.
30. From the pleadings and the evidence, it is not in dispute that the Appellant and the 1st Respondent are husband and wife in a subsisting marriage and that the suit land parcel Gaturi/Weru/8006 subsequently subdivided into parcels 12716 and 12717, was acquired during the subsistence of that marriage. The Appellant’s case before the trial court was that she contributed financially towards the acquisition of the said land, and that the land formed part of their matrimonial property. The reliefs sought in the plaint were for cancellation of the resultant subdivisions of land parcel 8006 being land parcels 12716 and 12717 and the same be reverted to land parcel 8006 in the name of the 1st Respondent. The 1st Respondent on his part argued that the land was not matrimonial property and that he acquired it as part of his retirement plan something that he agreed on with the Appellant.
31. The trial court in its findings observed that it lacked jurisdiction to entertain the suit as the determination of the same would in itself be a declaration that the property was matrimonial which it lacked the jurisdiction to do. The Appellant in her submissions argued she was seeking to have the court find that the suit land was sold without spousal consent as it was matrimonial property and therefore the sale was fraudulent.
32. In the a recent decision in the Court of Appeal in the case of CKS v SOL & another [2025] KECA 103 (KLR), the court observed as follows:
“While the learned Judge was correct that the Environment and Land Court established under Article 162(2) of the Constitution and sections 2 and 101 of the Land Registration Act, have jurisdiction to deal with matters relating to land, the learned Judge failed to take into account Section 93 of the Land Registration Act, which deals with co-ownership and other relationships between spouses. That section states as follows:
“Subject to any written law to the contrary, if a spouse obtains an interest in land during the subsistence of a marriage for the co-ownership and use of both spouses, or all spouses, such property shall be deemed to be matrimonial property and shall be dealt with under the Matrimonial Property Act.”
The implication of section 93 of the Land Registration Act, is that, in so far as jurisdiction concerning interest in land subject of co-ownerships and other relationship between spouses is concerned, the Land Registration Act has given deference to the Matrimonial Property Act. As such, disputes regarding such properties have to be dealt with under the Matrimonial Property Act, and this gives the High Court that has jurisdiction under the Matrimonial Property Act, jurisdiction to deal with such disputes.”
33. From the foregoing, this Court is satisfied that the trial court properly directed itself on the law and arrived at a sound and well-reasoned determination. However, the Court will set aside the order dismissing the suit and instead strike it out to allow the parties to seek relief in the appropriate Court.
34. Given the relationship of the parties, each party shall bear their own costs of the lower court case and of the appeal.
DATED, SIGNED AND DELIVERED AT EMBU THIS 19th DAY OF FEBRUARY, 2026.
……………………………………
HON. JUSTICE E. CHERONO
JUDGE
In the presence of;
1. Mr. Mwangi Maina for the 2nd Respondent.
2. Mr. Andande for the Appellant.
3. 1st Respondent/Advocate-absent.
4. Diana C/A.
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