[2013] KEHC 696 (KLR)
The court found that the Plaintiff raised a prima facie case regarding the applicability of the Lands Act, 2012 to the charge in question and the recognition of her spousal rights over the matrimonial property. Given that the charge was executed and registered after the commencement of the Lands Act, 2012, there is...
Source-derived case information.
- Citation
- [2013] KEHC 696 (KLR)
- Parties
- Applicant: Dorris Kanini Ndunda; Respondent: Family Bank Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 90 of 2013
- Procedural Posture
- Interlocutory Injunction / Ruling on Notice of Motion for Injunction
- Outcome
- interlocutory injunction granted for a limited period
- Judges
- MM Kasango
- Legal Topics
- Statutory Power of Sale, Matrimonial Property Rights, Injunctive Relief, Land Charges
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dorris Kanini Ndunda
Applicant
Family Bank Limited
Respondent
Procedural Posture
Interlocutory Injunction / Ruling on Notice of Motion for Injunction
Legal Issues
- 1 Whether the charge executed and registered after the commencement of the Lands Act, 2012 is governed by the repealed Registered Land Act or the Lands Act, 2012.
- 2 Whether the Defendant failed to recognize the Plaintiff's spousal rights over the matrimonial property under the Lands Act, 2012.
- 3 Whether the Plaintiff has established a prima facie case to warrant the grant of an interlocutory injunction.
Ratio Decidendi
The court found that the Plaintiff raised a prima facie case regarding the applicability of the Lands Act, 2012 to the charge in question and the recognition of her spousal rights over the matrimonial property. Given that the charge was executed and registered after the commencement of the Lands Act, 2012, there is a legitimate legal question as to which statute governs the transaction. The court, guided by the principles in Giella v Cassman Brown and MBUTHIA v JIMBA CREDIT CORPORATION, determined that it would be inappropriate to make final findings at this interlocutory stage. Instead, the court granted a temporary injunction to preserve the status quo pending the full hearing and...
Court Disposition
interlocutory injunction granted for a limited period
Orders
- An injunction is granted restraining the Defendant, its servants and agents from selling, advertising or alienating property Kwale/Ukunda/3637 for six months from the date hereof or until the determination of this case, whichever occurs first.
- The costs of the Notice of Motion dated 23rd July 2013 shall be in the cause.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 90 OF 2013
DORRIS KANINI NDUNDA ……………………….. PLAINTIFF/APPLICANT
V E R S U S
FAMILY BANK LIMITED ………………….. DEFENDANT/RESPONDENT
RULING
1. The Plaintiff is the wife of NOLLY KANO MUSANGO. Her husband by a charge dated 3rd May 2012 gave the property Kwale/Ukunda/3637 as security for financial advances by the Defendant to Bulk Petroleum Limited the principal debtor. The Principal Debtor has defaulted in the repayment of that facility. The Defendant sought to realize its security by selling the charge property.
2. By the present suit the Plaintiff seeks a declaration that the charge and the Defendant's exercise of statutory power of sale are illegal, null and void. The Plaintiff has pleaded in her plaint that the charge is null and void because firstly it was drawn and executed as per the provisions of the Registered Land Act Cap 300 (RLA). That Act has now been repealed. Secondly, that the Defendant failed to take into account the Plaintiff's spousal rights over the matrimonial property as provided in Sections 28, 93 and 96(3) of the Lands Act, 2012.
3. The Plaintiff filed a Notice of Motion dated 23rd July, 2013 seeking an interlocutory injunction to restrain the Defendant from selling the matrimonial property pending the hearing of this suit.
4. That application, the affidavits and the submissions filed by the parties raised very interesting issues of law that is whether a charge executed and registered after the Lands Act 2012 commenced is governed by the previous law such as in this case RLA or by the Lands Act, 2012. It is admitted by both parties that the charge was executed on 3rd May, 2012 and was registered on 8th May 2012. The Lands Act, 2012 and the Land Registration Act 2012 commenced their operation on 2nd May 2012. It seems also not to be denied that the Plaintiff is the wife of Mr. Musango. Section 93 of the Land Registration Act, 2012 provides as follows-
“93. (1) Subject to the law on matrimonial property, if a spouse obtains land for the co-ownership and use of both spouses or, all the spouses-
a.there shall be a presumption that the spouses shall hold the land as joint tenants unless-
i. a provision in the certificate of ownership or thecertificate of customary ownership clearly states that one spouse is taking the land in, his or her own name only, or that the spouses are taking the land as joint tenants.”
5. Parties have raised counter arguments in support and in opposition of the Notice of Motion which arguments I am of the view I should not make final determination of the same. If I was to make final determination of those issues I would be interfering with the determinations of the Judge who shall hear this matter in full. The Court of Appeal in the case MBUTHIA -VS- JIMBA CREDIT CORPORATION & ANOTHER [1988]KLR1 cautioned against that as follows-
“The correct approach in dealing with an application for an interlocutory injunction is not to decide the issues of fact, but rather to weigh up the relevant strength of each side’s propositions. The lower court judge in this case had gone far beyond his proper duties and made final findings of fact on disputed affidavits.”
6. I do find that the issue in regard to which Statute the charge is subject does raise a prima facie case with a probability of success as required by the now famous case of GIELLA -VS- CASSMAN BROWN & CO. LTD [1973] E.A. 358. Because the Court does find that the Plaintiff has raised a prima facie case the Court will grant the injunction sought but only for a limited period.
7. I grant the following orders-
a. An injunction is hereby granted restraining the Defendant, its servants and agents from selling, advertising or alienating property Kwale/Ukunda/3637 for a period of six (6) months from the date hereof or until the determination of this case whichever occurs first.
b. The costs of the Notice of Motion dated 23rd July 2013 shall be in the cause.
Dated and delivered at Mombasa this 19th day of December, 2013.
MARY KASANGO
JUDGE