[2017] KEHC 1047 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

MILIMANI

DIVORCE CAUSE NO. 230 OF 2013

BETWEEN

D C M................PETITIONER/APPLICANT

VERSUS

J W C...........................1ST RESPONDENT

J W C........................INTERESTED PARTY

RULING

PLEADINGS

This Ruling is for the Notice of Motion Application dated 28th July 2016 brought under Section 1A (1)(2)(3), 1B, 3A, 63(e) & 99 of the Civil Procedure Act, 2010and Order 40, Rule 7 of the Civil Procedure Rules, 2010 under Certificate of Urgency. The Application sought orders inter-alia that:

1. Pending the Hearing and determination of the Petition, the Order issued on 8th May 2014 by Hon. Kimaru J be varied, set aside and vacated.

2. The order issued on 6th November 2015 be varied and amended in terms of order 4 to state,

“…a temporary injunction do issue, restraining the 1st Respondent J W C by herself, her invitees, servants, agents, licensees, and/or otherwise howsoever from trespassing upon, remaining upon, occupying, leasing, charging, licensing, letting, carrying on any form of business, uttering the title L.R No. 209/[particulars withheld], claiming or asserting to be proprietor thereof, or otherwise however dealing in the plaintiff’s parcel of land L.R 209/[particulars withheld] situate in the city of Nairobi within the Nairobi County, until the hearing and determination of the Divorce cause.”

The grounds adduced in Support of the Application inter-alia were that:

1. A party aggrieved by the subsistence of an Order is entitled to move the Court to have it varied and discharged to mitigate the arising oppression and to ensure justice to all parties.

2. The Respondent is not paying a penny for being in the suit property, yet the Order sought to be set aside of 8th May 2014 benefiting the Respondent at the same time works oppression against the Applicant who is commuting over 170 Km back and forth from Mbugiti, Murang’a County while the Respondent has a house in Syokimau.

3. Upon obtaining the Order of 8th May 2014, the Respondent has not taken any initiative to prosecute her case, and hence the proper status quo order ought to be made to bring fairness to all parties and a just process leading up to the trial and pending the hearing of the matter herein that the Respondent should be ordered to leave the Applicant’s [particulars withheld] property and proceed to stay in her Syokimau house.

4. The Applicant acquired the [particulars withheld] property way back in 1976 before they even met with the Respondent herein, and therefore this specific property is his and does not constitute matrimonial property to be left in the control of the Respondent as she now seeks.

5. The Applicant hired Mwada Security Services to guard the [particulars withheld] property. The Respondent has enjoyed the security so offered, yet the Applicant is not living there which constitutes unjust enrichment which the Court cannot sanction.

6. The 1st Respondent has a property in Syokimau which she has not denied owning in any of her responses filed in the proceedings.

7. There is no valid reason why the 1st Respondent should not be staying in her house in Syokimau and neither is there any valid reason why the Applicant should incur expenses to pay for her continued stay in the Applicant’s property while he is squatting 150 Km away on what was intended to be a short lived and temporal arrangement before an otherwise expeditious trial which has not been.

8. The 1st Respondent has not been evicted, ejected there from or otherwise interfered with her enjoyment thereof. The Respondent ought to be permitted to continue occupying the matrimonial property in Syokimau without let or hindrance.

9. All the Applicant’s clothes, title deeds, share certificates and other vital personal documents are in the [particulars withheld] property effectively under the control of the 1st Respondent against his wish and without the Applicant’s consent.

10. Granting the Application will not in any way prejudice the Respondents.

In his Affidavit in support of the Application he reiterated the afore highlighted grounds and deponed that he purchased the suit property during his marriage to the Interested Party and the Respondent made no contribution towards the purchase and that the Interested Party was still paying all the utility bills of the suit property. He averred that the Interested Party lives in Tharaka Nithi in spite of the fact that he is paying for the Respondent’s stay in L.R 209/[particulars withheld] through the Interested Party’s name. He further averred that the Respondent has a house in Syokimau and thus her continued stay in the suit property is oppressive. He thus sought to have this Court vacate the Order of 6th November 2014 granted by this Court and proceed to order that the Respondent be directed to move to her Syokimau property as doing so will ensure that all parties are on an equal pedestal pending the hearing and determination of the divorce cause. He submitted that his rural house is far from Nairobi and thus has to commute all the way to Nairobi to attend to his personal matters which poses challenges yet he has a house in Nairobi which he bought way back in July 1976 and thud, it does not constitute matrimonial property.

The 1st Respondent replied to the Application vide a Replying Affidavit dated 30th September 2016. She submitted that the current Application was misconceived as it was intended to delay the main issue which was the Divorce Cause.

The 1st Respondent stated that the Applicant sought to review orders issued by Hon Justice Kimaru on 8th May 2014 and this Court on 6th November 2015 instead of awaiting hearing and determination of the matter in this instant case and as consolidated with Judicial Separation Cause Number 219 of 2013. She denied that the Applicant was the one paying the utility bills and maintaining her since he left their matrimonial home.

The Applicant filed a second supplementary Affidavit filed on 10th October 2016 wherein he reiterated his disposition in his previous Affidavits as highlighted. He challenged the Respondent to produce He reiterated that he paid security bills for gated area and annexed bills as DMS 4.

DETERMINATION

From the foregoing, the main issue before this Court is whether the Applicant has made his case to warrant the setting aside of the setting aside the Orders of 8th May 2014 granted by Kimaru J which allowed the 1st Respondent to continue residing in the suit property that she considers her matrimonial home pending the hearing and determination of the judicial separation by the respondent and Divorce Cause by the Petitioner. The Applicant also sought orders for variation of the Orders of 6th November 2015 granted by this Court that stated inter-alia:

“…a temporary injunction issues restraining the Respondent J W C by herself, invitees, servants, agents, licensees and/or tenants or otherwise howsoever from leasing, charging, licensing, letting, constructing upon, uttering title L.R 209/[particulars withheld], Githurai Road, Nairobi County, claiming or asserting to be proprietor thereof, or otherwise howsoever dealing in the parcel of land L.R 209/[particulars withheld] Githuri Road, Nairobi County until the hearing and determination of the Divorce Cause…”

Setting aside and variation of an injunction

Order 40 Rule 7of the Civil Procedure Rules, 2010 as read with Section 3A and 63(e) of the Act grants Court powers to issue Orders as may be necessary for the ends of justice. These powers are so given in a bid to enable Courts to further the overriding objectives of the Act and to ensure that it attains its Constitutional mandate of ensuring that justice is done to all.

Order 40 Rule 7 Civil Procedure Rules, 2010 provides:

“Any order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order.”

The provision primarily grants the Court discretion to discharge or vary or even set aside an injunction order if the ends of justice so demand, or if the injunction does not serve the ends of justice it was intended to serve when it was issued as was held in the case of Harrishchandra Bhovanbhai Jobanputra and anotherv.Paramount Universal Bank Limited and 3 others (2014) Eklr. Also see case of Nuh Nassir Abdiv.Ali Wario & 2 others (2013) e KLR EP No.6 of 2013.

In Mobile Kitale Service Station v. Mobil Oil Kenya Ltd & Another (2004) Eklr, Warsame J held inter-alia;

“…an interlocutory injunction is given on the court’s understanding that the defendant is trampling on the rights of the plaintiff. An interlocutory injunction, being an equitable remedy, would be taken away (discharged) where it is shown that the person’s conduct with respect to matters pertinent to the suit does not meet the approval of the court which granted the orders which is the subject matter. The orders of injunction cannot be used to intimidate and oppress another party. It is a weapon only meant for a specific purpose- to shield a party against violation of the legal rights a person is seeking. ”

From the above, it is clear that although a court has unfettered discretion donated to it pursuant to Order 40 Rule 7 CPR 2010, it only exercises it when circumstances so require it after considering the position of both parties at that particular instant and as well as when the injunction was given. This is because, before granting an injunction, a Court is usually guided by the principles for granting injunction as stated in Giellav.Cassman Brown & Co. Ltd. [1973] E.A.

In Felista Chemaiyo Sosten v. Samson Mutai Environment and Land Case 942 of 2012, Munyao Jopined:

“…I think the discretion under Order 40 Rule 7 ought to be sparingly used so as to avoid a situation where it would appear as if the same is being used as a tool for appeal. This is because before issuing the injunction, the court must have been satisfied that it was necessary to grant the same. If it were not satisfied, the court would not have issued the injunction in the first place. However, if the injunction was obtained by concealing facts which if put to the judge in first instance would have affected his judgment on whether or not to give the injunction, then a court can be inclined to vary or vacate the injunction in light of the new facts. So too if the circumstances of the suit have radically changed so that it is no longer necessary to have the injunction...”

From the facts, the Applicant’s main argument is that he married J W C, the interested party herein in 1970s and they bought the suit property L.R. 209/3413 in 1976. After they divorced in 2010 vide Thika CMCC 540 of 2010he married the Respondent and they moved to the suit property as their matrimonial home. The Applicant left the matrimonial home and relocated to his rural home which is far from Nairobi and thus posses commuting challenges. He incurs expense and inconvenience more so as a Senior citizen and would like his share of the matrimonial home. He argues that although he is not residing in that property, he still pays all the utility bills and the 1st Respondent does not contribute towards settling the bills. Since the 2 related matters; the instant case Divorce Cause 230 of 2013 and Judicial Separation 219 of 2013were consolidated, the same have not been set down for hearing and determination. The 1st Respondent despite claiming that she would pursue the dissolution of marriage; there is no evidence to show any effort or attempt to have the matter heard and determined.

The Applicant argues that the suit property does not constitute matrimonial property and 1st Respondent did not “in any way” contribute towards its acquisition. Further, He asks this Court to order that she goes to her home in Syokimau as doing so will ensure they are on an equal pedestal pending the hearing and determination of the divorce cause.

Matrimonial Property Act, 2013, Section 6(1)provides;

For the purposes of this Act, matrimonial property means—

(a) the matrimonial home or homes;

(b) household goods and effects in the matrimonial home or homes; or

(c) any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.

Section 2 defines matrimonial home to mean “...any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property…”

From the definition provided by the Act, there is no doubt that the issue of division of matrimonial property shall be canvassed after dissolution of the marriage between the Applicant and 1st Respondent.

This being the case, it is paramount for the parties to first conclude their Divorce and separation cause before indulging the Court in determining whether or not the suit property is matrimonial property which issues will be canvassed after the dissolution of the marriage when the parties institute a matrimonial property case.

In the meantime the 1st Respondent has not shown any effort to have the instant matter heard instead she continues to enjoy exclusive use and stay in the suit property L.R. 209/[particulars withheld] to the detriment of other stakeholders to ownership and/or share of the same property. Although the Court granted interlocutory injunction on 8th May 2014 when a nuisance claim was lodged against the 1st Respondent and on 6th November 2015 when this Court maintained status quo to allow the divorce proceedings to commence; the circumstances have drastically changed. Instead of parties pursuing dissolution of marriage so as to pave way for division of matrimonial property to take off, they have used the Interlocutory injunction to settle finally issues of matrimonial property. Consequently, some parties have undue advantage over the suit property over other parties languishing in destitution. This is not the purpose for granting interlocutory injunction.

In JOHN MOSINGI MARUBE VS COUNTY COMMISSIONER KISII COUNTY AND 2 OTHERS, PETITION NO. 39 OF 2015, thus:

“[13]by definition, a temporary injunction is a provisional order to restrain the doing of a particular act or to require a certain state of affairs to be altered for the time being, either until the trial of the suit, or until further order. (see,principles of injunctions by richard kuloba).the grant of such injunction is discretionary and since it has the potential to bear a permanent effect, the court must be extremely careful in exercising its discretion to ensure that the justice of the case is not compromised at an interlocutory stage.it is for this reason that guidelines for grant of such injunctions were set out in cases such asAMERICAN CYANAMIND CO.VS. ETHICON LTD [1975] A.C. 396ANDGIELLA VS CASSMAN BROWN & CO. LTD. [1973] EA 358. (emphasis added)

In the case of REV. MADARA EVANS OKANGA DONDO vs HOUSING FINANCE COMPANY OF KENYA NAKURU HIGH COURT NO262 OF 2005 Justice Kimaru held;

The Court will always invoke inherent jurisdiction to prevent abuse of the due process of the Court......The inherent jurisdiction of the Court enables the Court to exercise control over the process by regulating its proceedings, by preventing the abuse of the process and by compelling the observance of the process.......to ensure observance of the due process of the law, to prevent improper vexation or oppression, to do justice between parties and secure fair trial between them.

From the above cited cases, Injunctions are equitable remedies and serve to do justice between parties. In the instant case the continued retention of the injunction granted by the Court on 8th May 2014 and affirmed on 6th November 2015 serve as final orders of the existing dispute pending for hearing and determination. The parties have not made effort or attempt to have the pending matters being heard and determined on merit. It is on record that the Applicant has incurred loss of residence, financial commitment to pay the suit property's utility bills and has no access to the home even to collect his personal effects. For these reasons, this Court must maintain fair play between the parties in the absence of the matters pending going for full hearing and determination. Therefore in exercise of this Court's inherent jurisdiction, the orders of 8th May 2014 and 6th November 2015 with regard to Interlocutory injunction are hereby withdrawn and dismissed forthwith so as to prevent delay and obstruction of justice between the parties.

DISPOSITION

1. The court order by Hon Justice Kimaru of 8th May 2014 and the one by this Court of 6th November 2015 on Interlocutory injunction are expunged , withdrawn and dismissed.

2. The continued stay in suit property L.R. 209/3413 by the 1st Respondent shall be on condition the consolidated suits Divorce Cause 230 of 2013 and Judicial Separation 219 of 2013are set down for hearing in any Court within the Family Division within 90 days from today for hearing and determination.

3. In default,the Applicant to also set down the matter for hearing and determination.

4. If no attempts by either party is made to have the main matter listed for hearing within the stated period then the 1st Respondent shall be evicted from the suit premises and the Applicant shall retain possession of the residence and pay all utility bills henceforth.

5. The date error made by this Court in its Orders of 6th November 2015 is hereby corrected as 8th May 2014 not 2015 under Section 99 and 100 of the Civil Procedure Act, 2010.

4. The Applicant shall stop paying for utility bills forL.R. 209/3413 forthwith as he has no use and/or access to the suit property.

5. The Applicant shall have access to remove and take away his personal effects from the said premises.

6. Any aggrieved party may apply.

7. Each party shall bear their own costs.

IT IS SO ORDERED.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 3RD DAY OF NOVEMBER 2017.

M.W.MUIGAI

JUDGE