[2023] KEHC 17314 (KLR)

Aseyo v Wabwile (Civil Suit 1 of 2022) [2023] KEHC 17314 (KLR) (11 May 2023) (Ruling)

Neutral citation: [2023] KEHC 17314 (KLR)

Republic of Kenya

In the High Court at Kitale

Civil Suit 1 of 2022

AC Mrima, J

May 11, 2023

Between

Lilian Aseyo

Applicant

and

Samuel Kipyakwayi Wabwile

Respondent

Ruling

1. The parties herein are married and, prior to the institution of these proceedings, used to cohabit in their residential home on the parcel of land known as LR No Waitaluk/mabonde Block 12 (sirende) 447.

2. As a result of the parties’ inability to co-exist under the same roof, the applicant/plaintiff moved out and rented a house elsewhere. The respondent/defendant still resides in the matrimonial home.

3. Consequently, the applicant sought for the reliefs in the notice of motion dated February 15, 2022 which is subject of this ruling.

The Application: 4. The application was brought under section 1A, 1B, 3 & 3A of the Civil Procedure Act, order 5, rule 17, order 40, rule 1 and 2 and order 51, rule 1 of theCivil Procedure Rules.

5. It sought the following reliefs: -1. Spent;2. That pending the hearing and determination of this case and/or further orders of this court, an order of temporary injunction do issue to prevent the defendant/respondent either by himself, or through his agents, servants and/or assigns from selling, charging, developing, transferring, leasing, trespassing onto and/or in any other manner dealing with all those suit parcels of land known as LR No Kitale Municipality Block 1/bidii/891 measuring approximately 0. 81 ha and LR No Waitaluk/mabonde Block 12 (sirende) 447 measuring approximately 0. 101 ha;3. That pending the hearing and determination of this case and/or further orders of this court, the residential premises constructed on LR No Waitaluk/mabonde Block 12 (sirende) 447 measuring approximately 0. 101 ha be offered for rent and the proceeds therefrom be applied towards the mortgage thereof;4. That in the alternative to prayer (3) above, pending the hearing and determination of the main suit, the defendant/respondent who is in possession and/or occupation of the residential premises constructed on LR No Waitaluk/mabonde Block 12 (sirende) 447 be ordered to remit to the plaintiff through her counsel the monthly amounts payable towards the loan at Kshs 60,562. 00 (Kshs sixty thousand five hundred and sixty-two shillings only);5. That this honorable court do may such further orders it deems fit and expedient to serve the best interest of justice pending the hearing and determination of the main cause;6. That costs of this application be in the cause.

6. The grounds upon which the above orders were sought were contained in the body of the application and deposed to vide the applicant’s supporting affidavit sworn on the even date. The applicant also filed written submissions.

7. The application is opposed through the respondent’s replying affidavit sworn on March 24, 2022.

8. The brief facts in this matter are that the applicant is the registered owner of all those parcels of land namely LR No Kitale Municipality Block 1/bidii/891 measuring approximately 0. 81 ha and LR No Waitaluk/mabonde Block 12 (sirende) 447 measuring approximately 0. 101 ha. She deposed that she acquired the said properties by way of financial facilities/mortgages and that she continues to liquidate on a monthly basis from her salary. To that end, the applicant annexed copies of the letters of offer and bank statements showing the monthly payments respectively.

9. The applicant deposed that upon acquisition of the properties, she constructed a residential home on LR No Waitaluk/mabonde Block 12 (sirende) 447 where she resided with her family. Copies of the house plan and bill of quantities were annexed as exhibits.

10. It was the applicant’s case that resulting from the respondent’s hostilities she was compelled to flee the home and seek alternative residential arrangements. The applicant also alleged that she reported the assault to the police and was issued with an excerpt of theOB report.

11. It was deposed that upon her departure, the applicant tried to have the respondent vacate the premises and/or meet the monthly payments in vain.

12. Citing financial constraints out of the new arrangement, the applicant is apprehensive that she is likely to fall into arrears in the loan repayment and may lose the properties once the financial institution exercises its right of foreclosure.

13. The applicant’s anxiety is furthered by the truism of losing her properties if the orders sought are not granted and that the respondent stood to suffer no prejudice as he remains in gainful employment.

14. Through her written submissions, the applicant argued that she had met the conditions precedent for grant of the orders sought. On whether the plaintiff had a prima facie case with chances of success, she submitted in the affirmative by dint of ownership of the two parcels of land.

15. In her calculations on the two loan repayments, the applicant lamented that one of the loans she was payable for a period of 120 months at a rate of Kshs 34,306/= monthly installments effective 2018 and the other one was payable at the sum of Kshs 20,396/= monthly for 60 months. The total monthly loan repayments, therefore, stood at Kshs54,702/=. The applicant averred that she had made substantial payments to date and that any arrears in payment will highly prejudice her and will suffer irreparably.

16. On whether she would suffer irreparable harm that couldn’t be compensated by an award of damages, the applicant submitted that the intention of the orders sought was to preserve the substratum of the matter.

17. Finally, she submitted that the balance of convenience shifted in her favor.

18. The applicant then urged this court to grant the reliefs sought in the application.

19. The respondent vide his replying affidavit deposed that he remained legally married to the applicant since 2008 and that the suit parcels are their matrimonial homes.

20. He deposed that the parties in this matter purchased the properties during the subsistence of their marriage which is yet to be dissolved and mutually agreed to have them registered in the plaintiff’s name.

21. It was posited that the respondent actively participated in the construction of the residential house on LR No Waitaluk/mabonde Block 12 (sirende) 447 and attached copies of receipts showing building materials he purchased for the construction.

22. The allegations of assault were denied. Instead, he countermanded that the injuries depicted in the pictures arose from a road traffic accident. In that regard, the respondent maintained that the applicant moved out of the matrimonial house out of her own volition and not as alleged.

23. The respondent accused the applicant of possessing vindictive and self-centered traits geared towards dispossessing him of their matrimonial home so that she could gain benefit.

24. In disputing the allegation that the applicant’s financial position was dwindling, the respondent argued that the applicant had progressed in her career and was well resourced such that she would comfortably repay the loans whereas he continued earning a paltry salary. He attached evidence on the net salaries.

25. Justifying further his inability to meet the loan payments, the respondent disclosed that during they had agreed that the respondent would meet the school fees expenses of their two children, upkeep and maintenance of the entire household amongst other things while the applicant repaid the mortgages. He annexed copies of receipts in support of bills that he paid.

26. The respondent lamented that an injustice will be occasioned if the orders sought are granted given that he still had responsibilities to undertake. He also disclosed that the applicant had filed other two suits against him being CMC Children’s Case No 77 of 2022 and Divorce Cause No 9 of 2022 with a view to bring his life to a standstill.

27. He pleaded that the application be dismissed with costs.

28. The respondent did not file any written submissions.

Analysis: 29. this court has carefully considered the application, the affidavits and annexures thereto as well as the submissions on record.

30. Being a matter on whether injunctive reliefs ought to issue, the court remains alive to the law governing such arena in civil disputes, being order 40, rule 1 and 2 of the Civil Procedure Rules and the settled judicial principles.

31. It is undeniable that the principles for consideration in injunctive reliefs are well settled courtesy of the much-celebrated case in Giella v Cassman Brown (1973) EA 358. The case developed the following three principles: -a.The applicant to demonstrate a prima facie case with probability of success;b.The applicant to show that will suffer irreparable loss or damage that will not be adequately compensated by an award of damages;c.If in doubt on the above two requirements, the court to decide the matter on the balance of convenience.

32. Going forward, a consideration of the requirements will now follow.

A Prima Facie case: 33. Aprima facie case was defined in Court of Appeal in civil appeal No 77 of 2012, Nguruman Limited v Jan Bonde Nielsen &2 others [2014] eKLR as under: -We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.”

34. In Mrao v First American Bank of Kenya Limited & 2 Others (2003) KLR 125 a prima facie case was defined to mean: -…. In a civil application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later.

35. In David Ndii & others v Attorney General & others [2021] eKLR, the court had the following to say about a prima-facie case: -45. The first issue for determination in matters of this nature, is whether a prima facie case has been established and a prima facie case, it has been held, is not a case which must succeed at the hearing of the main case. However, it is not a case which is frivolous. In other words, it has to be shown that a case which discloses arguable issues has been raised and, in this case, arguable constitutional issues.

36. What constitutes a prima-facie case was further dealt with by the Court of Appeal in Mirugi Kariuki v Attorney General civil appeal No 70 of 1991 (1990-1994) EA 156, (1992) KLR 8. The court, in an appeal against refusal to grant leave to institute judicial review proceedings by the High Court, stated as follows: -It is wrong in law for the court to attempt an assessment of the sufficiency of an applicant’s interests without regard to the nature of his complaint. If he fails to show……. that there has been a failure of public duty, this court would be in error if it granted leave. The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse of the legal process. It enables this court to prevent abuse by busy-bodies, cranks and other mischief-makers... In this appeal, the issue is whether the applicant in his application for leave to apply for orders of certiorari and mandamus demonstrated to the High Court a prima facie case for the grant of those orders. Clearly, once breach of the rules of natural justice was alleged, the exercise of discretion by the Attorney General under section 11(1) of this Act was brought into question. Without a rebuttal to these allegations, this appellant certainly disclosed a prima-facie case. For that, he should have been granted leave to apply for the orders sought. (emphasis added).

37. In Re Bivac International SA (Bureau Veritas) (2005) 2 EA 43, the court while expounding on what a prima-facie case or arguable case is, stated that such a decision is not arrived at by tossing a coin or waving a magic hand or raising a green flag, but instead a court must undertake an intellectual exercise and consider without making any findings on the main matter, the scope of the remedy sought, the grounds and the possible principles of law involved.

38. The Court of Appeal in Nairobi civil appeal No 44 of 2014 Naftali Ruthi Kinyua v Patrick Thuita Gachure & Another (2015) eKLR while dealing with what aprima facie case is, referred to Lord Diplock in American Cyanamid v Ethicon Limited (1975) AC 396, when the Judge stated thus: -If there is no prima facie case on the point essential to entitle the plaintiff to complain of the defendant’s proposed activities, that is the end of any claim to interlocutory relief.

39. In sum, therefore, in determining whether a matter discloses a prima-facie case, a court must look at the case as a whole. it must weigh, albeit preliminarily, the pleadings, the factual basis, the respective parties’ positions, the remedies sought and the law.

40. Returning to the matter at hand, there is no doubt that the subject properties are registered in the applicant’s names. It is also not in doubt that the acquisition of the said properties was by way of mortgages and that the applicant is the one who makes the monthly loan repayments.

41. There is a further undisputed fact that the applicant no longer stays in the subject premises.

42. In the instant originating summons, the applicant sought for inter alia a declaration that she has an entitlement in, and an order on the ascertainment of her shares in the respective properties.

43. The respondent has not flagged the suit as frivolous. He readily admitted that indeed the factual position on the acquisition of the properties as stated by the applicant remained true.

44. In such a state of affairs, it goes without much say that the applicant has demonstrated a prima facie case with a probability of success.

45. The first requirement is, hence, satisfied.

Irreparable loss: 46. On this principle, the Court of Appeal in Nguruman Limited case(supra) expressed itself as hereunder: -On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.

47. In this matter, the applicant is apprehensive that as a result of her moving out of the matrimonial house for her safety, she has since incurred more expenses and is likely to default in the loan repayments, hence, prejudicing the subject properties.

48. The respondent contended that the parties had agreed that whereas the applicant serviced the mortgages, the respondent took care of the rest of the family matters.

49. The applicant did not file any response to the respondent’s replying affidavit. As such the allegation that the applicant progressed in her career and that she is in a better position to not only repay the instalments, but to also manage a decent living unlike the respondent who depends on a paltry salary is uncontested.

50. It is further undisputed that at the moment the applicant gets net salary of around Kshs 57,000/= after offsetting the loan instalment whereas the respondent has a net income of around Kshs 17,000/= after paying a loan instalment in respect of a separate financial advancement.

51. Given that the mortgage repayments stand atKshs 54,702/= monthly, it is the position that the respondent is unable to offset the same from his disclosed earnings. Further, if the respondent has to find an alternative accommodation so as to rent the matrimonial premises, then it means that he will have to survive on the paltry Kshs 17,000/=.

52. A court while making any decision in family matters must remain sensitive to the plight of the children. In this case, it is not disputed that the respondent takes care of the other needs of the two children of their union. Therefore, any decision which is likely to affect the children must be made in light of article 53 of the Constitution which calls for considerations of the best interests of children in any matter concerning such children.

53. On a careful analysis of this requirement, it appears to this court that the parties ought to maintain the prevailing status quo on the properties. Whereas the respondent is likely to suffer inconvenience if he is compelled to repay the mortgages, nevertheless, he cannot be left to deal with the properties at large since there is evidence that it is the applicant who is repaying the mortgages. There is no doubt that appropriate orders ought issue otherwise the applicant may be exposed to irreparable loss more so since she does not reside in the residential home.

54. Further, this court takes the position that this is a matter which ought to instead be expeditiously heard and determined so that the finality of the parties’ interests is ascertained.

55. Having said so, there is no need of considering the third requirement since it is apparent that some injunctive orders ought to issue.

Disposition: 56. Deriving from the above discussion, the following final orders do hereby issue: -1. Pending the hearing and determination of this case, an order of temporary injunction be and is hereby issued preventing the defendant/respondent either by himself, or through his agents, servants and/or assigns from selling, charging, developing, transferring, leasing, and/or in any other manner dealing with all those suit parcels of land known as LR NoKitale Municipality Block 1/bidii/891 measuring approximately 0. 81 ha and LR No Waitaluk/mabonde Block 12 (sirende) 447 measuring approximately 0. 101ha as to change the ownership of those parcels of land.2. The parties shall endeavor an expedited hearing and determination of this matter.3. As the application partially succeeds, each party shall bear its own costs.

It is so ordered.

DELIVERED, DATED AND* SIGNED AT KITALE THIS 11TH DAY OF MAY, 2023. A. C. MRIMAJUDGERuling No. 1 virtually delivered in the presence of:Miss. Isiaho, Counsel for the Petitioner.Miss. Lichuma, Counsel for the Respondent.Regina/Chemutai – Court Assistants.