- The judge said a court cannot purport to exercise its inherent jurisdiction and order for the division.
- The court would only intervene to meet the ends of justice where the law is lacking in some respect, he said.
- The court noted that there was no evidence that the properties were held in any sort of trust.
Married couples cannot divide their matrimonial property upon separation without a court’s decree of divorce or any other proof that the marriage between them is dissolved, the High Court in Nyeri has ruled.
Justice Jairus Ngaah held that a couple’s separation does not dissolve their marriage union and the properties remain indivisible until a decree is issued dissolving the marriage.
Justice Ngaah said the essence of Section 7 of the Matrimonial Property Act, 2013 on ownership and division of matrimonial property, is that it does not matter how long a duly married couple may have been separated.
While ruling on a case filed by a man seeking an order to divide property he co-owns with his estranged wife, the judge said a court cannot purport to exercise its inherent jurisdiction and order for the division.
The man, named as Mr DMW, made the application on sub-division of the matrimonial property after his efforts to obtain a divorce decree flopped.
The divorce petition filed in 2014 was dismissed by a magistrate’s court with Judge Ngaah explaining that had it succeeded, the man would have had a chance in the matrimonial suit.
The couple has been separated since 2007 and is living under judicial separation since 2016 following a declaration that they were no longer bound to live together, the court heard.
They married in 1996 under Kikuyu customs but later in 2003, solemnised their union under the African Christian marriage.
The man told the court that he and his wife named Ms LMM separated in 2007 and since then, more than ten years later, they had never cohabited or lived together.