https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7404

EAB v TMA (Matrimonial Cause E004 of 2025) [2026] KEHC 7404 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEHC 7404 (KLR) Republic of Kenya In the High Court at Kisumu Matrimonial Cause E004 of 2025 A Mabeya, J May 29, 2026 Between EAB Applicant and TMA Respondent Ruling 1.This ruling determines the motion dated 9/10/2025 wherein the applicant seeks injunctive relief against the respondent from interfering in any way with LR No. Kabondo/Kodumo West/XXXX pending the hearing and determination of the suit. 2.The motion is brought under Articles 45 (3) and 68 of the Constitution, Sections 1A, 1B, 3A & 3 (e) of the Civil Procedure Act, Section 17 of the Matrimonial Property Act and Orders 40 (1), (2), (3) & (4) of the Civil Procedure Rules. 3.The motion was anchored on the grounds therein as well as the Supporting Affidavit of Everlyne Atieno Brown. The applicant contended that she and the respondent got married on 17/2/2018 and were blessed with three issues. That during the subsistence of their marriage they stayed on LR No. Kabondo/Kodumo West/XXXX, their matrimonial home situated in Homabay County. 4.That they got divorced in 2024 vide a judgement delivered in Kisumu Chief Magistrates Court Divorce Cause No. E075 of 2024 after which the respondent chased her out of their matrimonial home leaving her and the children out in the cold. 5.That in the course of the marriage, they invested and acquired LR No. Kabondo/Kosumo West/XXXX, Kisumu/Konya/XXXX & XXXX, Kisumu/Nyamware/XXXX and Milele Apartments Block A503. 6.That as a result the aforementioned properties constituted matrimonial property and if not granted the orders sought, the respondent may infringe on her rights over the said properties. 7.The respondent filed a replying affidavit sworn on the 13/10/2025 in which he deposed that he he solely purchased the land parcel Kabondo/Kodumo West/XXXX on 18/9/2001, long before knowing the Applicant and as cohabitation began long after this acquisition, it does not constitute matrimonial property. 8.That the Applicant made no financial, maintenance, or improvement contributions toward that land parcel or any of the other listed properties (including Kisumu/Konya/XXXX, Kisumu/Konya/XXXX, Kisumu/Nyamware/XXXX, and Milele Apartments Block A503) and put her to strict proof of the same as property division is based on proven contribution rather than a blanket 50-50 split. 9.That the marriage between him and the applicant was dissolved on 16/7/2025 in case Kisumu MCDC E075 of 2024 after which the Applicant packed her belongings, took a child born out of wedlock, and stealthily left their Kodumo home. The respondent denied the averment that the applicant left with all their children or that they are "out in the cold" as he has custody of all three of their children and he solely provides for their financial, academic, and emotional needs. 10.That before the divorce case was concluded, the Applicant illegally moved her boyfriend into his Kodumo home and subsequently following the divorce, the aapplicant took his household goods and vandalized the premises, furniture, and fittings when she left, which incident he reported at Sori Police Post. 11.That currently he has fully occupied and repaired his home since July 2025 where he resides whilst the Applicant now resides in Oyugis town, where she runs a private medical clinic thus the balance of convenience tilts in his favour. 12.In rejoinder, the applicant filed a further affidavit sworn on the 16/10/2025 in which he deposed that she and the Respondent began cohabiting as husband and wife in 2003, with children born in 2004, 2007, and 2009. That the traditional Luo customs and dowry requirements were fulfilled, culminating in a celebrated church wedding in 2018 before the marriage was eventually dissolved. 13.That whereas land parcel Kabondo/Kodumo West/XXXX was originally acquired in 2001, it was developed and maintained during their marriage through both her financial and non-financial support. That in the course of their marriage they maintained two specific to wit she lived in the Kabondo home with the children, while the Respondent primarily stayed at the Kisumu property Kisumu/Konya/XXXX, which she also claimed to have helped develop. 14.That whenever she asked for joint registration of properties acquired during the marriage, the Respondent dismissed it by saying "we are one and there is no need" however Kisumu/Manyatta 'B'/954 was jointly registered. 15.The applicant denied voluntarily packing up or running away and instead claimed that shortly after the divorce judgment, the Respondent threw the household items outside the main gate, and used hired goons on motorcycles to lock her, her child, and the house help out in the cold. That she subsequently reported this eviction to the Senta Sori Police Station under OB No. OB6/21/7/2025 and she challenged the Respondent to produce an official OB number for his claims of vandalism, asserting that he never actually filed a police report. 16.That the accusation that she moved a boyfriend into the house were unfounded as the presence of the home's staff would make this impossible. Further that she was the one catering to the children's academic needs, asserting that she paid the college fees for their eldest daughter, school fees for their youngest son (who is in Form 3), and sent pocket money. 17.That the children are suffering emotionally because they no longer have a stable family home to visit during school holidays and that she does not run a private clinic or live comfortably in Oyugis town but is rather forced to reside with her brother, a situation she describes as highly uncomfortable. 18.The respondent on his part filed a further affidavit sworn on the 21/10/2025 in response denying that the applicant contributed to the development or maintenance of land parcels Kabondo/Kodumo West/XXXX and Kisumu/Konya/XXXX asserting that he purchased and maintained the Kabondo land entirely on his own. 19.That while he predominantly stayed in Kisumu due to work, he visited Kabondo nearly every weekend, and the children stayed with him during boarding school holidays. 20.As regards the jointly registered property, Kisumu/Manyatta 'B'/954, he claimed he only used the applicant's payslip to accelerate securing a KCB loan facility, which loan he single-handedly repaid without any financial contribution from the applicant. 21.In regard to the July 2025 events, the respondent deposed that he was tipped off that the applicant planned to move out with his belongings and upon arriving at the home he found her items paraded in the compound. That he separated their belongings and had her workers move her items outside to facilitate her planned departure, before locking the gate. 22.That he subsequently reported this break-in to the Senta Sori Police Base under O.B. NO. 04/16/07/2025 at 1457HRS after which the applicant later returned with police and the local area chief to peacefully collect the remainder of her belongings, proving she was never forcefully evicted. 23.That they always kept their financial investments strictly separate and while he covered all day-to-day family upkeep, bills, and school fees, the applicant used her income solely for her personal and professional growth including funding her university education, investing in an Old Mutual Money Market fund, buying her own car, and starting her private medical clinic thus demonstrating that the applicant was a person of substantial means who was not stranded. 24.The respondent reiterated that he handled the children's upkeep stating that the applicant only paid school fees for their last-born son because she unilaterally transferred him from Maseno School to Nova Pioneer Academy against his wishes thus taking on that financial undertaking voluntarily. 25.That the applicant had a child born out of wedlock with her boyfriend which was the central ground for their initial divorce. 26.The parties filed submissions in disposal of the matter. I have gone through the annextures to the supporting affidavit as well as the replying affidavit and further affidavits filed by both parties. The applicant is seeking an injunction restraining the respondent from interfering in any way with LR No. Kabondo/Kodumo West/XXXX which she asserts is matrimonial property. 27.The principles for grant of an injunction are now well settled having been set out in the locus classicus Giella v Cassman Brown & Co Ltd (1973) EA 358. First an applicant must demonstrate that she has a prima facie case with probability of success. Secondly, an injunction will not normally be granted unless the applicant might otherwise suffer irreparable loss. Thirdly, if the court is in doubt, it will decide an application on a balance of convenience. 28.The court is at this stage required to satisfy itself that there is a prima facie case established. The Court of appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others (2003) KLR 125 considered what constitutes a prima facie case and held that:“In civil cases, a prima facie case is a case in 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 to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.” 29.The applicant’s case is hinged on the fact that the property in question is the matrimonial property and that the same could be sold or in another way interfered with without her consent. 30.Section 7 of the said Matrimonial Property Act provides the manner of dividing of matrimonial property. The section states that: -“Subject to section 6 (3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.” 31.The evidence on record is that the applicant and respondent were married, that they maintained two specific homes being the Kabondo home subject of this motion and the Kisumu home; that the applicant used to live in the Kabondo home with the children, while the Respondent primarily stayed at the Kisumu property. That the respondent would visit the Kabondo home and in return the children would stay with him during the school holidays. 32.At this juncture, I cannot conduct a mini-trial on whether the applicant is entitled to the said property as matrimonial property. However, she has established a prima facie case that she is going to suffer irreparable loss if a temporary injunction is not issued. 33.In the interest of justice, I make the following orders: -a.That an order of temporary injunction is hereby issued restraining the Respondent from damaging, selling, charging or otherwise interfering in any way the properties known as LR No. Kabondo/Kodumo West/XXXX pending the hearing and determination of the suit.b.Cost of the Application be in the cause.It is so decreed. DATED AND DELIVERED AT KISUMU THIS 29TH DAY OF MAY, 2026.A. MABEYA, FCI ArbJUDGE