S W K v S K K [2015] KEHC 1910 (KLR) | Matrimonial Property | Esheria

S W K v S K K [2015] KEHC 1910 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

IN THE MATTER OF MATRIMONIAL PROPERTY ACT

AND

IN THE MATTER OF DIVISION OF MATRIMONIAL PROPERTY CASE NO. 62 OF 2014

S W K..................................PETITIONER/APPLICANT

- Versus -

S K K…............................DEFENDANT/RESPONDENT

R U L I N G

1. In the application dated 26th May 2015, brought by way of Notice of Motion under Order 10 Rule 4of theCivil Procedure Rules 2010and Section 1A and 3Aof theCivil Procedure Act, the Applicant seeks that interlocutory judgment be entered against the Defendant.

2. In her supporting affidavit sworn on even date, she deposes that the Respondent was served with Originating Summons dated 25th September 2014 on 26th September 2014.  That on 21st October 2014, the Respondent filed a Memorandum of Appearance dated 16th October 2014 and served the Applicant, and since then the Respondent has failed/defaulted and/or neglected to file his defence. That it is now more than six months since he was served with the Originating Summons.  The Applicant therefore prays that an interlocutory judgment  be entered against the Respondent.

3. Upon perusal of the court record I note that the Respondent did file on 29th October 2015, a Replying Affidavit sworn on 27th October 2015 in which he opposes the grounds of the Originating Summons. It is therefore not correct as stated by the Applicant that the Respondent has not bothered to file a Replying Affidavit since he filed the Memorandum of Appeal.

4. What is required is to place this matter before a judge in Family Division for direction.  The procedure adopted by the Applicant of coming before the court to seek interlocutory judgment is alien to matters brought under the Matrimonial Property Act.  That procedure belongs to matters brought under the Civil Procedure Act.

5. In the premise the Application is found to be without merit and is dismissed with costs to the Respondent.

SIGNED DATEDandDELIVEREDin open court this 22nd day of October 2015.

……………………

L. A. ACHODE

JUDGE