Court slams brakes on Mombasa woman's bid to own lover's property
In her court documents, the woman claimed that she had lived in the property in question due to her intimate relationship with the man, who treated her as his wife and her son as his own. However, in 2015, the man evicted them with the intention of selling the property
The battle for a share of a property that she once called her matrimonial home has come to an end for a woman and her son after the High Court dismissed their plea to take the dispute to the Supreme Court.
The two now face an uncertain future following the court's decision.
Justice Gregory Mutai ruled that his court lacked jurisdiction to handle the matter since the decision being appealed originated from the Court of Appeal, rather than the High Court where he presides.
“Accordingly, it is my view that this court has no jurisdiction to grant the orders sought as it has already become functus officio (expired) Consequently, I will not delve into the other issues,” said the judge.
Justice Mutai further noted that the woman’s submission on jurisdiction was based on a presumption that certain things are likely to happen, which makes them irrelevant to the case.
In her court documents, the woman claimed that she had lived in the property in question due to her intimate relationship with the man, who treated her as his wife and her son as his own.
However, in 2015, the man evicted them with the intention of selling the property.
The woman started the case in 2015, where she sought a permanent injunction restraining the man or his agents from interfering with their use and enjoyment of the property.
She also sought a declaration that she has an equitable interest in all the property measuring 0.0330 hectares situated in the Shanzu area of Mombasa, as well as general damages.
Justice Mugure Thande heard the case and dismissed the application in a ruling delivered in 2019.
The judge ruled in favour of the man, declaring that no marriage exists between the two and that the man has no obligation to maintain the woman and her son.
Furthermore, the court ordered the woman and her son to give vacant possession of the suit property within three months.
The woman was dissatisfied with this ruling and filed an appeal at the Court of Appeal.
The appellate court dismissed her application and confirmed the judgment, declarations, and orders of Justice Thande.
Dissatisfied again, the woman filed a notice of appeal at the High Court, expressing her intention to appeal to the Supreme Court against the decision of the Court of Appeal.
She asked Justice Mutai to certify her case as urgent and as one that raises issues of general public importance, but her request was denied.
The woman claimed that following the delivery of the judgment in May 2022, the man’s advocate served her with a demand letter, threatening eviction from the property if she failed to vacate.
Fearing this outcome, the woman applied for a temporary injunction to prevent interference with her use and enjoyment of the property until the matter could be heard before the Supreme Court.
She argued that without the injunction, she and her son would suffer irreparable loss, rendering their appeal to the Supreme Court meaningless.
In response, the man filed a notice of preliminary objection, asserting that the matter had already been heard and a judgment delivered in his favour in 2019, and a subsequent one in 2022.
He claimed that the court lacked jurisdiction to entertain the matter because its duty had been fully discharged, and therefore, it now rested with the Court of Appeal.
The man also contended that the woman’s application was incompetent, defective, an abuse of the court process, and should be dismissed.
In a quick rejoinder, through Gikandi Ngibuini Company Advocates, the woman argued that the preliminary objection did not raise pure points of law and should be dismissed.
The advocate further argued that the issue at hand primarily concerned the minor, as the man had willingly taken on parental responsibility and even initiated proceedings to adopt the child.
The advocate highlighted that the child had known no other home apart from the disputed property and that he had seen the construction of the house where he was intended to grow up.
“This court is the appropriate forum to adjudicate the dispute, as the eviction was based on the judgment of this very court,” said the advocate.
However, Justice Mutai held that his court lacked jurisdiction to grant the orders sought, adding that there was no legal basis to delve into other issues raised in the matter.
