1. The Plaintiff filed an Originating Summons dated 16th February, 2023 under Section 17 of the Matrimonial Property Act. She seeks declarations that the two properties listed therein be declared matrimonial property and that the defendant holds 50% or higher portion of the properties in trust for her.
2. The Defendant filed a preliminary objection seeking dismissal of the suit for lack of jurisdiction. The points are twofold;
i. That the properties in dispute are not located within the territorial jurisdiction of the court;
ii. That there is no marriage between the parties and that no divorce has been undertaken, and that therefore the court has no jurisdiction to entertain the suit.
3. The Plaintiff opposed the preliminary objection, and the parties also prepared submissions, which I have considered.
4. The issue for determination is whether this court has jurisdiction to entertain this suit.
5. In AW v KMK [2025] KEHC 5120 (KLR ), the Court in determining a preliminary objection stated as follows;
“For a Preliminary Objection to succeed it must satisfy the following tests in that it should only raise a pure point of law, it is argued on the assumption that all the facts pleaded by the other side are correct and lastly, it cannot be raised if any fact that has to be ascertained by evidence or if what is sought is the exercise of judicial discretion. A valid preliminary objection should dispose of the suit if successful.”
6. Section 17 of the Matrimonial Property Act provides as follows;
“ Action for declaration of rights to property
(1) A person may apply to a court for a declaration of rights to any property that is contested between that person and a spouse or a former spouse of the person.
(2) An application under subsection (1) -
(a) shall be made in accordance with such procedure as may be prescribed;
(b) may be made as part of a petition in a matrimonial cause; and (c) may be made notwithstanding that a petition has not been filed under any law relating to matrimonial causes.”
7. This Court, therefore, has jurisdiction to hear and decide cases seeking a declaration of rights over disputed property between parties to a marriage, even if the marriage has not been dissolved.
8. A preliminary objection must rely solely on legal principles and not on facts that need to be proven by evidence. Determining whether a marriage exists is a factual issue that involves examining evidence, and it therefore does not qualify as a preliminary objection.
9. The Plaintiff’s claim relates to LR No. 17456, which is stated to be within Nakuru and parcel number Ngong/Ngong 103207, situated at Kajiado.
10. The determination of whether these properties qualify as matrimonial property under the Matrimonial Property Act similarly involves a factual question that demands an examination of evidence and cannot be determined through a preliminary objection.
11. The Civil Procedure Act clearly delineates the parameters of territorial jurisdiction, stipulating the appropriate venue for the filing of legal actions. In instances akin to the authorities cited by the Plaintiff, the case may be adjudicated in either of the respective jurisdictions in instances where the properties are located within more than one territorial bounds.
12. Further, courts may consider various special circumstances, such as the parties’ residency, the place where the marriage was celebrated, the jurisdiction of the marriage dissolution, and other relevant factors that the court finds significant when preferring territorial jurisdiction over another. This is necessary because litigating each property at its location would result in multiple separate proceedings, which is not legally feasible.
13. The pleadings in this case indicate that the properties are in Nakuru and Kajiado. Additionally, they show that there has been prior litigation between the parties at Nakuru Law Courts. The Defendant also resides in Nakuru, and the property LR No. 17456, referred to as the matrimonial home, is situated within Nakuru.
14. Upon reviewing the pleadings and submissions, and considering the circumstances of this case, I have determined that this suit should have been filed in the High Court of Kenya at Nakuru rather than in Nairobi. Therefore, I order that the suit be transferred to the High Court of Kenya at Nakuru for hearing and determination.
15. Costs shall abide the outcome of the suit.
16. Mention on 20 th April, 2026 before the Deputy Registrar, Nakuru.
Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 02nd day of March, 2026.
HON. C. KENDAGOR
JUDGE
2. The Defendant filed a preliminary objection seeking dismissal of the suit for lack of jurisdiction. The points are twofold;
i. That the properties in dispute are not located within the territorial jurisdiction of the court;
ii. That there is no marriage between the parties and that no divorce has been undertaken, and that therefore the court has no jurisdiction to entertain the suit.
3. The Plaintiff opposed the preliminary objection, and the parties also prepared submissions, which I have considered.
4. The issue for determination is whether this court has jurisdiction to entertain this suit.
5. In AW v KMK [2025] KEHC 5120 (KLR ), the Court in determining a preliminary objection stated as follows;
“For a Preliminary Objection to succeed it must satisfy the following tests in that it should only raise a pure point of law, it is argued on the assumption that all the facts pleaded by the other side are correct and lastly, it cannot be raised if any fact that has to be ascertained by evidence or if what is sought is the exercise of judicial discretion. A valid preliminary objection should dispose of the suit if successful.”
6. Section 17 of the Matrimonial Property Act provides as follows;
“ Action for declaration of rights to property
(1) A person may apply to a court for a declaration of rights to any property that is contested between that person and a spouse or a former spouse of the person.
(2) An application under subsection (1) -
(a) shall be made in accordance with such procedure as may be prescribed;
(b) may be made as part of a petition in a matrimonial cause; and (c) may be made notwithstanding that a petition has not been filed under any law relating to matrimonial causes.”
7. This Court, therefore, has jurisdiction to hear and decide cases seeking a declaration of rights over disputed property between parties to a marriage, even if the marriage has not been dissolved.
8. A preliminary objection must rely solely on legal principles and not on facts that need to be proven by evidence. Determining whether a marriage exists is a factual issue that involves examining evidence, and it therefore does not qualify as a preliminary objection.
9. The Plaintiff’s claim relates to LR No. 17456, which is stated to be within Nakuru and parcel number Ngong/Ngong 103207, situated at Kajiado.
10. The determination of whether these properties qualify as matrimonial property under the Matrimonial Property Act similarly involves a factual question that demands an examination of evidence and cannot be determined through a preliminary objection.
11. The Civil Procedure Act clearly delineates the parameters of territorial jurisdiction, stipulating the appropriate venue for the filing of legal actions. In instances akin to the authorities cited by the Plaintiff, the case may be adjudicated in either of the respective jurisdictions in instances where the properties are located within more than one territorial bounds.
12. Further, courts may consider various special circumstances, such as the parties’ residency, the place where the marriage was celebrated, the jurisdiction of the marriage dissolution, and other relevant factors that the court finds significant when preferring territorial jurisdiction over another. This is necessary because litigating each property at its location would result in multiple separate proceedings, which is not legally feasible.
13. The pleadings in this case indicate that the properties are in Nakuru and Kajiado. Additionally, they show that there has been prior litigation between the parties at Nakuru Law Courts. The Defendant also resides in Nakuru, and the property LR No. 17456, referred to as the matrimonial home, is situated within Nakuru.
14. Upon reviewing the pleadings and submissions, and considering the circumstances of this case, I have determined that this suit should have been filed in the High Court of Kenya at Nakuru rather than in Nairobi. Therefore, I order that the suit be transferred to the High Court of Kenya at Nakuru for hearing and determination.
15. Costs shall abide the outcome of the suit.
16. Mention on 20 th April, 2026 before the Deputy Registrar, Nakuru.
Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 02nd day of March, 2026.
HON. C. KENDAGOR
JUDGE