[2022] KEHC 11010 (KLR)

EWK v SOK (Civil Suit E016 of 2021) [2022] KEHC 11010 (KLR) (Family) (1 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11010 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Suit E016 of 2021

MA Odero, J

July 1, 2022

Between

EWK

Plaintiff

and

SOK

Respondent

Ruling

1. Before this Court for determination is the Notice of Motion dated 9th June 2021 by which the Plaintiff/Applicant EWK seeks the following orders:-“1. Spent.2. Spent.3. That a temporary injunction be issued to restrain the defendant, his servants and agents from alienating, disposing of and selling the properties mentioned below pending the interpartes hearing and disposal of this suit:a.Title Number Nairobi/Block xx/xxxx situate in Donholm Nairobi;b.Title No. Ngong/Ngong/xxxx, the matrimonial property;c.Title NO. Nakuru Municipality xx/xxx;d.Motor vehicle No. KCT xxxx; and4. The costs of this application be provided for.”

2. The Application was premised upon sections 1A,1B, 3A and 63(c) of the Civil Procedure Rules, 2010 and all other enabling provisions of the law and was supported by the Affidavit of even date sworn by the Applicant.

3. The Respondent SOK opposed the Application through the Replying Affidavit dated 17th November 2021. The Application was canvassed by way of written submissions. The Applicant filed the written submissions dated 2nd March 2022 whilst the Respondent relied upon his written submissions dated 13th April 2022.

Background 4. The parties herein got married to each other on 7th August 1999 at the ACK [Particulars withheld] Church in Nakuru. Their union was blessed with two (2) sons both of whom are now over the age of Eighteen (18) years.

5. The marriage has been rocked with issues and the Applicant averred that she instituted Divorce proceedings at the Chief Magistrates Court in Ngong being case No. 6007 of 2021. However, this Divorce Cause was later withdrawn. Thereafter, the Respondent filed Divorce Cause No. E848 of 2021 at the Milimani Chief Magistrates Court, which cause is still pending hearing and determination.

6. The Respondent avers that during the course of their marital union the parties jointly acquired the following properties all of which are registered in the name of the Respondent –i.Title Number Nairobi/Block xx/xxxx situate in Donholm Nairobiii.Title Number Ngong/Ngong/xxxxx Title Number Nakuru Municipality xx/xxx.iii.Motor vehicle No. KCT xxxx.”

7. That the Ngong Property is the matrimonial home where the couple reside with their children. That the ‘Donholm Property’ is a residential property, which is currently rented out to a tenant at Kshs 80,000 per month. The Applicant states that the rental income is utilized to run the family home and to pay school fees for the children.

8. The Applicant averred that both parties are in paid employment. That she is a business executive with Royal Media Services whilst the Respondent is an Engineering Technician with Kenya Pipeline Company. That despite the Respondent holding a well paying job he does not utilize his income for the upkeep of the family but rather uses it to maintain a second family that he has established with another woman.

9. The Applicant states that she has reason to believe that the Respondent is attempting to clandestinely sell off the ‘Donholm property’ without her knowledge, approval and/or consent in an attempt to defeat the Applicants interest in said property. She pleads that if such sale is allowed to proceed then the rental income will no longer be available to provide for the family causing her irreparable loss. The Application seeks injunctive orders to preserve the named properties pending the hearing and determination of the main suit.

10. As stated earlier the application was opposed. The Respondent confirms that the couple’s marriage has failed and further confirms that he has filed a Divorce Petition at the Milimani Court in Nairobi. The Respondent conceded that the named properties were acquired during the subsistence of his marriage to the Applicant. The Respondent however denies any knowledge of Title Number Nakuru Municipality xx/xxx, which is said to be an undeveloped plot. The Respondent categorically states that he does not own this property.

11. However the Respondent asserts that he acquired the said properties alone without any contribution from the Applicant. In Paragraph 13 of his Replying Affidavit the Respondent sets out in detail how he acquired the said properties. He details the loans he took to purchase the properties and the amounts which he is still repaying to service said loans.

12. The Respondent denies that he had any intention of selling any of the named properties. He denies that the Applicant stands to suffer irreparable harm. According to the Respondent, the Applicant is not entitled to any share in the named properties. He urges the court to dismiss this application entirety.

Analysis and Determination 13. I have carefully considered the Application before this court, the Affidavit filed in Reply as well as the written submissions filed by both parties. The only issue for determination is whether the prayer for injunctive orders ought to be granted. The main bone of contention between the parties is whether the named properties constitute matrimonial property. Section 6 (1) of the Matrimonial Property Act provides as follows:-“(1)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.

14. Whilst both parties agree that the properties in issue were acquired during the subsistence of their marriage, the position of the Respondent is that since he paid for the said properties alone, the Applicant has no stake in the same

15. The question of whether or not the properties constitute matrimonial property as well as the question of whether or not the Applicant is entitled to a share of said properties cannot be determined at this interlocutory stage. These are issues, which can only be determined after a full hearing of the suit at which both parties will be accorded the opportunity to adduce evidence in support of their position.

16. At this stage the court is only being asked to determine whether the injunctive orders being sought are merited. The circumstances under which an interlocutory injunction may be granted were set out in the celebrated case of GiellavCasman Brown & Company Limted (1972) E.A. as follows:-(i)The Plaintiff must establish that they have a prima facie case with a high probability of success.(ii)The Plaintiff must demonstrate that they are likely to suffer irreparable loss that cannot be adequately compensated by an award of damages.(iii)In the event the court is in any doubt the case is to be declared on a balance of probability.

17. The Applicant stated that she was apprehensive that the Respondent if not restrained by the court may move to clandestinely dispose of the named properties before the main suit is determined. The Respondent denied that he has any intention to sell of said property. The Applicant averred that she had come across a sale Agreement in respect of the Donholm property. The said sale Agreement is annexed to the Applicants supporting Affidavit (marked as ‘C’).

18. The sale Agreement indicates that the Respondent as vendor offers to sell the property known as Nairobi/Block 82/xxxx to one Rahow Ibrahim Hussein for an amount of Kshs 13,200,000.

19. The existence of this sale Agreement is in my view a clear indication of an intention to sell. Although the Agreement has not been executed, the Respondent would not have gone to the trouble of preparing the sale Agreement unless he had an intention to sell the said property. It is not in dispute that this Donholm property was acquired during the subsistence of a marriage, which is yet to be dissolved. The entitlement (if any) of the Applicant to a share of this property is yet to be determined by the court. If the Respondent is allowed to sell the same to a third party then the main suit will be rendered nugatory as the Applicants beneficial interest in the same will be defeated. This in my view, would lead to irreparable harm.

20. The parties concede that the Ngong Property is the matrimonial home where the family resides. The same is registered in the name of the Respondent. Obviously, any sale and/or transfer of this Ngong Property will render the family homeless not to mention defeating any interest which the Applicant may have in the same.

21. The Respondent has in his submission isolated the Ngong Property and submitted that injunctive orders ought not to issue in respect of this property as the same is charged to his employer Kenya Pipeline Company Limited (the ‘third party’). That the said third party has a first charge over the property which right cannot be varied and/or limited by the orders of this court since the said third party has not been enjoined in these proceedings.

22. The fact of the matter is that any orders which this court will make in respect of the Ngong Property are orders which will be directed at the Respondent not at his employer. It is against the Respondent that the injunctive orders are being sought not against his employer. It is the Respondent to whom the orders will be directed not to the third party. Any rights which the third party may have as chargee will not be affected by the decision made by this court. As such, I find no merit in the submissions made in this regard.

23. Regarding the undeveloped plot in Nakuru the Respondent has denied under oath any knowledge of this Plot No. 25/xxx. The Respondent denies owing said Plot. The applicant has not availed any evidence in the form of a Title to confirm who owns this undeveloped Plot in Nakuru Municipality. It would be unsafe for this court to make orders in respect of a plot whose ownership is not known.

24. With respect to the motor vehicle I note from the Respondents reply that although he is registered as the sole owner of motor vehicle No. KCT xxxx, another vehicle Registration KCQ xxxx is registered in the name of the Plaintiff. This fact has not been denied by the Applicant. Therefore, each party has one vehicle registered in their name. I do not consider that the sale of a motor vehicle will occasion irreparable harm to the Applicant this I decline to make any orders in respect of the said vehicle.

25. Finally, the application for injunctive orders is in my view merited. I do allow the Notice of Motion dated 9th June 2021 in the following terms.(1)A temporary injunction be and is hereby issued to restrain the Respondent, his servants, agents and/or assigns from alienating disposing, transferring or selling the properties mentioned below pending the interpartes hearing and disposal of this suit.(i)Title Number Nairobi/Block xx/xxxx situate in Donholm, Nairobi.(ii)Title Number Ngong/Ngong/xxxxx(2)This being a family matter each side will bear its own costs.

DATED IN NAIROBI THIS 1ST DAY OF JULY, 2022. …………………………………MAUREEN A. ODEROJUDGE