[2017] KEHC 9797 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

FAMILY DIVISION

ORIGINATING SUMMONS NO. 16 OF 2014

E W W ………….…..……......….……..APPLICANT/RESPONDENT

VERSUS

A N M..……...…….…..………….……RESPONDENT/APPLICANT

RULING

1. Before me for determination is an Application dated 13. 3.17 in which A N M the Respondent/Applicant herein seeks in the main the following:

a) An order restraining the Applicant/Respondent from threatening, abusing, coming to the Respondent’s home and place of work or in any other way harassing the Respondent/Applicant.

b) Stay of execution, review/variation or setting aside of the orders of the Court of 9. 6.16.

c) Costs.

2. The order of 9. 6.16 directed the Respondent/Applicant to pay to E W W, the Applicant/Respondent herein the sum of Kshs. 20,000/= as monthly rent. The Respondent/Applicant avers in his Supporting Affidavit sworn on 13. 3.17 that he had to vacate his home in Nyali to take up military accommodation in Nairobi upon his transfer there. In spite of this, the Applicant/Respondent refused to vacate the premises in Nyali thereby causing the Respondent/Applicant great embarrassment and loss of esteem amongst his military peers. The Applicant/Respondent then used the Respondent/Applicant’s desperation as leverage to acquire alternative accommodation at an upscale neighbourhood. He agreed to her demands in the expectation that he would be able to supplement his salary with alternative income. His only source of income however is his salary. The Respondent/Applicant avers that since June 2016, he has faithfully paid the money in compliance with the Court order. He further avers that he has solely borne the responsibility of providing for his children without any assistance from the Applicant/Respondent who he accuses of abdicating her parental responsibilities. According to him, the Applicant/Respondent has various businesses which generate regular income and that it is only fair that she caters for her personal needs including shelter. He claims that the obligation to pay monthly rent to the Applicant/Respondent is a heavy financial burden upon himself and prayed that the same be discharged.

3. The Respondent/Applicant further claims that the Applicant/Respondent went to the Respondent/Applicant’s house but upon being denied access by the security guards hurled insults at them. The Applicant/Respondent has also developed a habit of maliciously sending text messages to the children purporting that the same were authored by the Respondent/Applicant with a view to creating animosity between him and the children. The Respondent/Applicant therefore has reasonable apprehension of imminent threat to his life and person.

4. The Applicant/Respondent in her Replying Affidavit sworn on 15. 6.17 denies all the allegations by the Respondent/Applicant. She avers that it was not mandatory for her to vacate the house. Being an officer’s wife she could only be forced to vacate on the Respondent/Applicant’s instructions. Upon her vacating the house, the Respondent/Applicant acquired a government house in mid October 2016 for his family but he is living there with one Joyce Wanjiru. It is difficult for their children to stay in that house with the children of the said Joyce Wanjiru. She further claims that the Respondent/Applicant’s salary is sufficient to maintain his family but he has diverted his obligation to the other family. According to her, the Respondent/Applicant is aware that she is unable to sustain herself as her savings were channeled to the building in Mtwapa.

5. The Applicant/Respondent alleges that the Respondent/Applicant has only paid rent for the months of August, September and October. According to her the Respondent/Applicant’s mpesa statements show his lavish lifestyle with Joyce Wanjiru and Jane Githinji, women she claims to know well. The Applicant/Respondent further claims that the Respondent/Applicant purchased a brand new vehicle in October yet he claims to be under financial stress. She denies having any business premises generating income and avers that her shop is on the verge of collapsing. The Applicant/Respondent further denies engaging the security guards at the Respondent/Applicant’s home or causing animosity between the children and their father. She urged the Court to compel the Respondent/Applicant to pay the rent ordered as the rent arrears continue to increase.

6. I have considered the Application, the rival affidavits, submissions by the Applicant/Respondent as well as the cited authorities. The issues for determination are:

i) Is the Respondent/Applicant entitled to injunctive relief?

ii) Should there be a stay of the Order of 9. 6.16

iii) Should the Order of 9. 6.16 be reviewed varied or set aside?

Is the Respondent/Applicant entitled to injunctive relief?

7. The Respondent/Applicant seeks an order restraining the Applicant/Respondent from threatening, abusing, coming to the Respondent’s home and place of work or in any other way harassing the Respondent/Applicant. The principles governing the grant of interlocutory injunction as set out in the case of Giella –vs- Cassman Brown [1973] EA 358) are well settled:

“The conditions for a grant of an interlocutory injunction are now I think well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant must otherwise suffer irreparable injury, which would not adequately be compensated by an award for damages. Thirdly if the court is in doubt, it will decide an application on the balance of convenience.”

8. Has the Respondent/Applicant established a case for the grant of interlocutory injunction pending the hearing and determination of the suit? The relationship between the parties herein is extremely toxic. Attempts at mediation have failed. The Court has observed the parties in Court and it is evident that there is a lack of goodwill between them. The Respondent/Applicant is a military man. He did aver that the refusal of the Applicant/Respondent to vacate the military house in Nyali caused him great embarrassment and loss of esteem amongst his military peers. He further averred that the Applicant/Respondent had a verbal exchange with the security guards after being denied access to the Respondent/Applicant’s home. Although this was denied by the Applicant/Respondent, it would appear to me that the Respondent/Applicant has reasonable grounds to be apprehensive that by the Applicant/Respondent going to the Respondent/Applicant’s home and place of work or in any other way harassing him may cause him irreparable loss and damage. I am satisfied that the second test in the Giella case has been met and even if it were not, the balance of convenience would tilt in favour of the Respondent/Applicant.

Should there be a stay of the Order of 9. 6.16

9. It was submitted for the Applicant/Respondent that the Respondent/Applicant has come to Court with unclean hands as he has failed to comply with the Court Order. He has failed to file a statement as ordered by the Court. Further, no basis has been laid for stay of execution of the order. It was further argued that no new matters have arisen to warrant stay orders.

10. The Court did order the Respondent/Applicant to pay to the Applicant/Respondent the monthly rent of Kshs. 20,000/= which is what he had indicated to the Court he could afford. The issue of payment of this amount has been contentious. The Applicant/Respondent has all along claimed that the amount has not been paid regularly while the Respondent/Applicant insists that he has faithfully complied with the Court Order. The Respondent/Applicant claims that he agreed to the Applicant/Respondent’s demands in the expectation that he would be able to supplement his salary with alternative income. The Court did order parties to file the file a tabulation of the rents paid and received. The Applicant/Respondent filed her tabulation while the Respondent/Applicant did not.

11. On 29. 6.17, this Court did grant the Respondent/Applicant another 14 days within which to file the tabulation of rent paid, a further affidavit and written submissions in respect of the Application herein. When the matter came up on 27. 7.17, counsel appearing for the Respondent/Applicant informed the Court that he had just filed the further affidavit and submissions that morning. On the application by counsel for the Applicant/Respondent, the further affidavit and submissions were expunged from the record for having been filed out of time without leave of the Court. The Court also observed that the tabulation of rent paid by the Applicant/Respondent was not filed within time prescribed. In light of the above, I do find that the Respondent/Applicant on account of failure to comply with Court’s orders has come to Court with unclean hands and is therefore undeserving of the orders sought.

Should the Order of 9. 6.16 be reviewed, varied or set aside?

12. The jurisdiction of the Court for review of orders is provided for in Order 45 Rule 1 (1) of the Civil Procedure Rules provides:

45 (1) Any person considering himself aggrieved—

(1) Application for review of decree or order

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is hereby allowed,and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.

13. From the above provision, it is evident that the law allows an aggrieved party to apply for review of an order on the basis of recovery of new and important matters or evidence which after due diligence, was not within his knowledge. In the present case, the Respondent/Applicant’s ground for review of the order is that he agreed to the Applicant/Respondent’s demands in the expectation that he would be able to supplement his salary with alternative income. He only has his salary as his income. It is a trite financial principle that it is imprudent to make a financial commitment based on anticipated income that may or may not come. The Respondent/Applicant’s net pay according to his annexed pay slip of February 2017 is Kshs. 71,915. 55. The pay slip of June 2016 when the order was made was however not produced nor indeed any other, for comparison purposes. In light of this the Respondent/Applicant has not placed any new and important matter or evidence before this Court for consideration. Moreover, a cursory look at the mpesa statements produced show that the Respondent/Applicant made transactions that far exceed his monthly net salary. Between the months of July 2016 and February 2017, he transacted amounts of between over Kshs. 91,000/= and over Kshs. 500,000/= per month thus negating the claim that he relies only on his monthly salary.

14. The Court ordered the Respondent/Applicant to pay the monthly amount of Kshs. 20,000/= towards the Applicant/Respondent’s rent pursuant to the Respondent/Applicant’s own proposal. This fact is conceded by the Respondent/Applicant when he states that he agreed to the Applicant/Respondent’s demands in the expectation that he would be able to supplement his salary with alternative income. The Court of Appeal in The Board of Trustees National Social Security Fund v Michael Mwalo [2015] eKLR cited Setton on Judgements and Orders (th Edn), Vol. 1 pg 24:

“Prima Facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them…

cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court…; or if the consent was given without sufficient material facts, or in general for a reason which would enable the court to set aside an agreement.”

15. No evidence was placed before the Court that the order was obtained by fraud or collusion. Further the proposal by the Respondent/Applicant to pay a rent contribution of Kshs. 20,000/= per month to the Applicant/Respondent was not given without sufficient material facts. The Respondent/Applicant was well aware of his financial position even as he made the proposal to the Court. In my view the contention by the Respondent/Applicant is not a cogent reason to persuade this Court to set aside the order of 9. 6.16. In the circumstances the Court is not satisfied that the Respondent/Applicant is deserving of the orders sought.

16. The upshot of this Ruling is that the Respondent/Applicant’s Application dated 13. 3.17 partially succeeds. I do therefore make the following orders:

i) The Applicant/Respondent is hereby restrained from threatening, abusing and going to the Respondent/Applicant’s home and place of work or in any other way harassing the Respondent/Applicant.

ii) The prayers for stay of execution, review/variation or setting aside of the Orders of the Court of 9. 6.16 are all hereby declined.

iii) Each party to bear own costs.

DATED, SIGNED and DELIVERED in MOMBASA this 6th October 2017

__________

M. THANDE

JUDGE

In the presence of: -

……………………………………….… for the Respondent/Applicant

…………………………………....…… for the Applicant/Respondent

…………………………..................….. Court Assistant