1. By Notice of Motion dated 22 nd May 2025 the Applicant seeks for orders that-
a. THAT the suit commenced by way of Originating Summons dated 28 th January 2025 be struck out in limine for want of jurisdiction.
b. THAT the costs of this application and suit be awarded to the respondent.
2. The application is based on the grounds on the face of the application and supported by the affidavit of ZULFIKAR PREMJI DHANJI, the applicant sworn on 22 nd May 2025.
3. He avers that contrary to the assertion by the applicant the property LR NO. 209/871/1/4 ( NOW NAIROBI/ BLOCK/37/15) is matrimonial property, it was actually the subject of a trust by virtue of a Deed of Trust executed on 31 st December 1993 between the respondent and her daughters. The applicant argues that this Court is devoid of jurisdiction and the proper forum for the resolution of the matter is the Environment and Land Court.
4. The respondent opposes the application and asserts that the dispute touches on property that was acquired during the pendency of the marriage and this is the Court vested with jurisdiction.
5. The Notice of Motion as presented is essentially a preliminary objection, and if successful, its effect would be to terminate the proceedings without allowing the matter to proceed to a full hearing on its merits. The preliminary objection raised challenges the jurisdiction of the Court.
6. Hon. Mativo J ( as he then was) in Petition 264 of 2017 summarised the primacy of jurisdiction thus-
Jurisdiction is the very basis on which any Tribunal or court tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity. The importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to the Court of Appeal or to this Court; a fortiori, the Court can suo motu raise it. It is desirable that a Preliminary Objection be raised early on the issue of jurisdiction, but once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce. It is always in the interest of justice to raise the issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.
7. It is submitted by the respondent that the claim falls squarely within the Matrimonial Properties Act.
8. In Julius v Mitei (Civil Appeal E001 of 2021) [2022] KEHC 13295 (KLR) , it was emphasised that Courts must zealously safeguard precious judicial time citing the Court of Appeal in Muchanga Investments Limited vs Safari Unlimited ( Africa) Ltd. & 2 Others [2009] KLR 22 when the Court said-
Judicial time is the only resource the courts have at their disposal, and its management does positively or adversely affect the entire system of the administration of justice.
9. It is for this reason that I have considered the sustainability of this Originating Summons as presented under the Matrimonial Property Act, 2013, it must fail for two reasons.
10. It is common ground that the marriage herein was dissolved on 13th December 1994. The Matrimonial Property Act is not retrospective in its application. This was settled in JOO v MBO & 2 others [2023] KESC 4 (KLR).
11. Even assuming that resort is made to the repealed Married Women's Property Act, 1882, the applicant does not explain the 31-year delay in filing this suit after the dissolution of the marriage. In R H L v J L [2014] KEHC 958 (KLR), the Court similarly dismissed an Originating Summons for violating the Limitation of Actions Act.
12. Similarly, for the two reasons outlined above, I will dismiss the Originating Summons herein for being misconceived, incompetent, and bad in law.
13. On account of the relationship between the parties, there shall be no order as to costs.
14. Parties are at liberty to exercise their right of appeal within 30 days
It is so ordered
Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 24 th day of April, 2026.
a. THAT the suit commenced by way of Originating Summons dated 28 th January 2025 be struck out in limine for want of jurisdiction.
b. THAT the costs of this application and suit be awarded to the respondent.
2. The application is based on the grounds on the face of the application and supported by the affidavit of ZULFIKAR PREMJI DHANJI, the applicant sworn on 22 nd May 2025.
3. He avers that contrary to the assertion by the applicant the property LR NO. 209/871/1/4 ( NOW NAIROBI/ BLOCK/37/15) is matrimonial property, it was actually the subject of a trust by virtue of a Deed of Trust executed on 31 st December 1993 between the respondent and her daughters. The applicant argues that this Court is devoid of jurisdiction and the proper forum for the resolution of the matter is the Environment and Land Court.
4. The respondent opposes the application and asserts that the dispute touches on property that was acquired during the pendency of the marriage and this is the Court vested with jurisdiction.
5. The Notice of Motion as presented is essentially a preliminary objection, and if successful, its effect would be to terminate the proceedings without allowing the matter to proceed to a full hearing on its merits. The preliminary objection raised challenges the jurisdiction of the Court.
6. Hon. Mativo J ( as he then was) in Petition 264 of 2017 summarised the primacy of jurisdiction thus-
Jurisdiction is the very basis on which any Tribunal or court tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity. The importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to the Court of Appeal or to this Court; a fortiori, the Court can suo motu raise it. It is desirable that a Preliminary Objection be raised early on the issue of jurisdiction, but once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce. It is always in the interest of justice to raise the issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.
7. It is submitted by the respondent that the claim falls squarely within the Matrimonial Properties Act.
8. In Julius v Mitei (Civil Appeal E001 of 2021) [2022] KEHC 13295 (KLR) , it was emphasised that Courts must zealously safeguard precious judicial time citing the Court of Appeal in Muchanga Investments Limited vs Safari Unlimited ( Africa) Ltd. & 2 Others [2009] KLR 22 when the Court said-
Judicial time is the only resource the courts have at their disposal, and its management does positively or adversely affect the entire system of the administration of justice.
9. It is for this reason that I have considered the sustainability of this Originating Summons as presented under the Matrimonial Property Act, 2013, it must fail for two reasons.
10. It is common ground that the marriage herein was dissolved on 13th December 1994. The Matrimonial Property Act is not retrospective in its application. This was settled in JOO v MBO & 2 others [2023] KESC 4 (KLR).
11. Even assuming that resort is made to the repealed Married Women's Property Act, 1882, the applicant does not explain the 31-year delay in filing this suit after the dissolution of the marriage. In R H L v J L [2014] KEHC 958 (KLR), the Court similarly dismissed an Originating Summons for violating the Limitation of Actions Act.
12. Similarly, for the two reasons outlined above, I will dismiss the Originating Summons herein for being misconceived, incompetent, and bad in law.
13. On account of the relationship between the parties, there shall be no order as to costs.
14. Parties are at liberty to exercise their right of appeal within 30 days
It is so ordered
Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 24 th day of April, 2026.