The judiciary has unveiled a new set of procedures and rules to follow when applying to a court for a declaration of matrimonial property rights.
The judiciary – in the new rules – moved to protect the interests and rights of persons involved in the judicial dispute.
According to the rules, property rights can be exercised by, among others, a spouse and an executor.
“Anyone, including the following persons, may bring a civil action to claim any right or remedy in relation to matrimonial property; a spouse, a person against whom a spouse has filed a conflicting claim with respect to property, a trustee in bankruptcy, or an executor of a will.”
An undated photo of a man entering the Mombasa Law Courts
Furthermore, the procedures describe timelines under which a person should apply to claim property rights.
According to the procedures, an application must be made within 12 months from the date on which the final divorce decision is issued.
“Such application must be made within twelve months from the date on which the absolute decision is given.”
As to which courts a person can file a claim with, the procedures have determined that a case claiming property worth more than Ksh20,000,000 must be filed in the High Court.
Matters relating to property below this value are to be dealt with and determined by the Magistrates Courts in accordance with the monetary jurisdiction of the court.
For Muslims, the court to which a request is submitted may be guided by Sharia at the request of the parties.
To file a petition, the applicant must complete a form MP1 listing the parties involved in the claim, their addresses (both physical and postal) and contacts.
The form also states the date the marriage was dissolved and the issues or questions to be determined by the court.
“The claim shall be made by means of an original subpoena, to be returned before a judge or magistrate, in Form MP1 as set forth in the Annex, which sets out: the parties to the proceedings; the respective postal and physical addresses of the parties for service, e-mail any addresses and any telephone contacts; the date the marriage was dissolved; the issues or questions to be determined by the court succinctly set out,” the new rules read in part.
The rules also state that a person can claim ownership of property rights while still in the marriage. However, the applicant must clearly state the grounds on which the claim is made.
The claim submitted under these Rules shall be substantiated by an affidavit stating, among other things, the grounds on which the claim has been brought and whether there has already been a previous claim with regard to the matrimonial property concerned.
The new rules were drafted by the Rules Committee, a special committee in the judiciary charged with maintaining a register of rules and procedures used to guide the work of the courts.
The Milimani Law Courts in Nairobi as pictured on November 18, 2019.