The Supreme Court has sent an estranged couple back to the High Court after finding that the man jumped the gun when he was ordered not to sell an alleged matrimonial wealth until a dispute with a woman claiming to be his ex-wife is settled.
A five-judge bench composed of Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung'u, Isaac Lenaola, and William Ouko found that there was no case for the Supreme Court to settle as the Family Court had not even heard in full whether the couple was married or not and whether the two should split the matrimonial wealth.
A man named Washington Muchiri filed the appeal against Elizabeth Wangari who claims that they were in a come-we-stay marriage when they acquired the wealth.
However, the five judges dismissed his case after finding that the Court of Appeal was right in ruling that the High Court has unlimited powers to hear and determine the marital status between the two.
"In conclusion, we find that as long as the twin issues of the monetary value of the properties in dispute and the nature of the relationship between the appellant and respondent were not determined by the two Superior courts, the appellant has not properly invoked Article 163(4)(a) of the Constitution by purporting to challenge the jurisdiction of the High court.
In the circumstances, no appeal lies before us as of right. Further, as long as the aforesaid issues were not determined by the two Superior Courts, the submissions by the appellant that there were constitutional determinations by the Superior courts are merely preemptive," the bench headed by Justice Ibrahim ruled.
In the case, the court heard that Muchiri and Wangari had cohabited and lived together as a husband and wife between 2008 and 1018.
Wangari stated that in between, she helped Muchiri acquire the Thome home by contributing money or through indirect contribution. She stated that the assets in Muchiri's name were out of joint efforts.
Her case also targeted parcels of land, motor vehicles, and developments made at their Thome home.
She narrated that they parted ways after their relationship turned sour.
The woman told the court that Muchiri kicked her out of the love nest.
She sought the court's declaration that the long cohabitation was a marriage and that she was entitled to matrimonial wealth.
Muchiri on the other hand told the court that Wangari was introducing extraneous issues. He argued that the High Court and the Court of Appeal failed to find that it had no powers to determine a matrimonial dispute if there is no evidence that there was a divorce.
According to him, the right place to battle over whether there was a marriage or not was the magistrate's court and not the High Court.
He stated that if one was allowed to directly approach the High Court, then the law would have cleared out. Instead, he said the High Court was taking away the powers of the lower court by entertaining the matrimonial case.
"Therefore, that such a determination not only embarrasses the fair and proper adjudication of a dispute but also infringes on the appellant's right to a fair hearing before an independent and impartial court as guaranteed under Article 50(1) of the Constitution," argued Muchiri.
