MMM v LOO [2020] KEHC 10256 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

CIVIL SUIT NO. 6 OF 2016 (OS)

MMM.........................................................................................APPLICANT

AND

LOO.......................................................................................RESPONDENT

RULING

1. I have considered the application dated 9th September 2019 by the respondent LOO. I accept that the originating summons for division of matrimonial property dated 26th February 2016 was filed together with an application of the same date seeking injunction to restrain the respondent from selling, leasing, mortgaging, charging and transferring the stated matrimonial property and to restrain the respondent from evicting the applicant MMM. from the matrimonial home.  Against the application was filed a notice of preliminary objection.  The objection was heard and determined on 31st October 2016.  The application was severally set down for hearing.  Directions were give that parties do file written submissions on it.  On 23rd July 2018 counsel appeared before me for that application.  I indicated I would render a decision on 23rd October 2018.  Unfortunately, my record showed “Judgment on 23rd October 2018” instead of “Ruling on 23rd October 2018. ”  This led me to write a decision on the originating summons instead of ruling on the application.  This was a mistake, and it was inadvertent.

2. I appreciate that no direction had been taken on the originating summons.

3. The result is that the ruling/judgment entered on 23rd October 2018 was irregular and is hereby set aside.

4. The mistake was on the part of the court and therefore I do not order for costs.

5. I ask that this matter be heard by another court.  There will be mention on 26th November 2020 before Judge Mutuku who shall henceforth handle the matter.

DATED and DELIVERED at NAIROBI this 5TH NOVEMBER 2020.

A.O. MUCHELULE

JUDGE