[2022] KEHC 1355 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

(CORAM: CHERERE-J)

CIVIL CASE NO. E029 OF 2021

BETWEEN

FLORENCE GAKII MWITI........................APPLICANT/PLAINTIFF

AND

BANK OF BARODA..............................RESPONDENT/DEFENDANT

RULING

Background

1. Land Parcel No. NTIMA/IGOKI/9446 is registered in the name of Applicant’s spouse David Marete Gikundi (Deceased).

2. By a letter dated 10. 10. 2020, deceased requested for an overdraft facility of Kshs. 10,000,000/- to prop up and run a milling business known as Topland Millers from the Respondent which was secured by a charge over NTIMA/IGOKI/9446 (suit property) which was executed by the deceased and one Nelly Dolly Kathure in her capacity as his spouse.

3. Applicant avers that she married the deceased in 2002 and only became aware of the loan facility after his death on 21st April 2021. She avers that the suit property was charged without her knowledge, information and consent and denies that Nelly Dolly Kathure is deceased’s spouse. She contends that under Section 28 and 93 of the Land Registration Act, the charge over the suit property is null and void for lack of a legal spousal consent.

Notice of motion

4. By a Notice of Motion dated 3rd November 2021, Applicant, seeks the following orders:

1) Spent

2) THAT this Honorable Court be pleased to grant interlocutory order of injunction against the Respondent, his servants, agents, workers, representatives or any other person claiming through them, restraining them, continuing to charge interest and deduct funds from the account held with the defendant’s Bank Account No. 9495XXXXXXXXXX pending the hearing and determination of this application inter-parties.

3) THAT this Honorable Court be pleased to grant interlocutory order of injunction against the Respondent, his servants, agents, workers, representatives or any other person claiming through them, restraining them, continuing to charge interest and deduct funds from the account held with the defendant’s Bank Account No. 9495XXXXXXXXXX pending the hearing and determination of this suit.

4) THAT this Honorable Court do issue an Order requiring the Bank to supply the Applicant with all the documents regarding the transaction P/NO. NTIMA/IGOKI/9446 to the charge of the property suit and status report of the Bank Account No. 9495XXXXXXXXXX pending the hearing and determination of this application.

5) THAT this Honorable Court do issue an Order requiring the Bank to supply the Applicant with all the documents regarding the transaction P/NO. NTIMA/IGOKI/9446 to the charge of the property suit and status report of the Bank Account No. 9495XXXXXXXXXX pending the hearing and determination of this suit.

6) THAT this Honorable Court do issue any other order in the interest of justice.

7) Costs of the application be provided for.

5. The application is opposed vide a Replying Affidavit sworn on 19th November 2021 by Richard Wanjau Ngahu, the defendant’s Meru branch manager. He avers that the deceased, his wife Nelly Dolly Kathure and daughter Brenda Karimi Gikundi approached the bank when the deceased wanted financial accommodation to assist prop up and run his milling business known as Topland Millers which had a facility with NCBA Bank which he wanted the Respondent to take over. The deceased provided a business plan with the daughter being a witness and named her a managing partner. He contends that Applicant’s prayer for stopping of accrual of interest on the term loan and overdraft facility is misguided as there still exists a contract between the deceased and the Respondent and her prayer for supply of documents is misconceived as she is a stranger in law to the estate of the deceased. He avers that the charge over the suit property was properly drawn and executed and contains spousal consent of Nelly Dolly Kathure and that there being no evidence that the suit property is matrimonial property, the suit and that application are misconceived.

6. In response, Applicant by her further Supporting Affidavit sworn on 3rd February 2022 avers that her step daughter Brenda daughter was deceased’s authorized agent of account No. 9594XXXXXXXXXX and not the stated account No. 9594XXXXXXXXXX that is the subject of this suit. She also maintains that Nelly Dolly Kathure is not deceased’s spouse.

7. By a further replying affidavit sworn on 18th February, 2020, Richard Wanjau Ngahu, the defendant’s Meru branch manager avers that deceased held a current account No. 9594XXXXXXXXXX and that account No. 9495XXXXXXXXXX was the overdraft account.

Plaintiff/Applicant’s submissions

8. The Plaintiff/Applicant submits that it an injunction ought to issue for the reason she is the legal wife of deceased and having not signed spousal consent is likely to suffer substantially in the event that the Respondent stakes a claim on the suit property. In support thereof, reliance has been placed on the following authorities;

1) Giella v Cassman Brown & Co. [1973] E.A 358

2) Nguruman Limited v Jan Bonde Nielsen & 2 Others CA No. 77 Of 2012 [2014] eKLR

3) Mrao Ltd Vs First American Bank of Kenya and 2 others [2003] eKLR

4) Margaret Njeri Muiruri (Being the Administrator of the Estate of Joseph Muiruri (Deceased)) v Bank of Baroda (Kenya) Ltd [2001] eKLR

Defendant/Respondent submissions

9. The Defendant/Respondent submits that the facility is not disputed and the Applicant has therefore not established a primafaciecase with a probability of success. It was argued that the Plaintiff/Applicant has not demonstrated that the suit property is matrimonial home and she is likely to suffer loss that cannot be compensated by an award for damages. On supply of the charge documents and deceased account documents, Defendant contends that Applicant is non-suited having not obtained letters of administration to deceased’s estate. Finally, it was contended that Plaintiff/Applicant is making an attempt to avoid the payment of the loan facility which is detrimental to the bank. In support thereof, reliance was placed on the law and the following authorities:

1) Giella v Cassman Brown & Co. [1973] E.A 358

2) Section 79(3) of the Land Act

3) Elyjoy Kageni v Bank of Africa Kenya Limited & 3 others [2017] eKLR

4) Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others [2016] eKLR

5) Standard Chartered Bank Kenya Ltd v Intercom Services Ltd & 4 others [2004] eKLR

Analysis and Determination

10. I have considered the notice of motion in the light of the affidavits thereto and on submissions by the parties.

11. Any discussion on temporary injunctions is not complete without reiteration of the requirements for grant of injunctions as set-out in the Giella vs Cassman Brown [1973] EA 358 as follows:

“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 might otherwise suffer irreparable injury, which would not be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience."

12. The principles on which courts will grant an injunction were restated by the Court of Appeal in Nguruman Limited V. Jan Bonde Nielsen & 2 Others, CA NO. 77 OF 2012, together with the mode of their application as follows:

“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;

(a) establish his case only at a prima facie level,

(b) demonstrate irreparable injury if a temporary injunction is not granted, and

(c) ally any doubts as to (b) by showing that the balance of convenience is in his favour.

13. From the foregoing, it is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. (See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86).

14. The Court of Appeal in the case of Mrao Ltd Vs First American Bank of Kenya and 2 others[2003] eKLR interpreted the condition as to prima facie case as follows:

"A prima facie case in a civil application includes but is not confined to a "genuine and arguable case". It is a case which on the material presented to court; a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the other party as to call for an explanation or rebuttal from the latter."

15. Both parties agree that deceased was advanced an overdraft by the Respondent which was secured by a charge over NTIMA/IGOKI/9446 (suit property). It is also not disputed that the deceased opened an overdraft account No. 9495XXXXXXXXXX.

16. It is on record that the facility was executed by the deceased over the suit land which Applicant says was both matrimonial and ancestral having been inherited by the deceased from his father. Applicant informed the Court that she was carrying on business in the suit land and that her consent as the legal wife of the deceased was necessary but was not obtained.

17. Section 6 of the Matrimonial Property Act. No. 49 of 2013 provides as follows:

Meaning of matrimonial property

(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.

18. Section 2 of the Act 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.

19. The property that the Applicant refers to as matrimonial property is Land Parcel No. NTIMA/IGOKI/9446. No action has been taken by the Respondent to realize the said land which was charged by the deceased. I hence find that the Applicant has not demonstrated that she has suffered or is likely to suffer any loss unless the order of injunction is granted. Having not demonstrated any loss, I equally find that no prima facie case has been established to warrant an injunction. The application for an injunction is in my considered view premature.

20. Finally, a perusal of the Notice of Motion dated 3rd November 2021 and the plaint discloses that the prayers sought in the summons are substantially different from those sought in the suit. The Plaint seeks orders to compel respondent to cancel charge overNTIMA/IGOKI/9446 and permanent injunction to restrain Respondent from interfering withNTIMA/IGOKI/9446 whereas the summons seeks disclosure and access of information relating to Deceased’s Account No. 9495XXXXXXXXXX. It is now well settled that for a litigant to seek temporary injunction as an interim relief, the Applicant must have included a substantive prayer for permanent injunction or similar relief in the plaint.

21. Emukule, J. in John Kubai M’eringa vs. Fredrick Ntongai M’eringa [2009] eKLR considered WINSTONE VS WINSTONE [1959]3 ALL ER 580whereWinn J. said:

“in my view these words are to be construed and understood as limited to the granting of an injunction ancillary to and comprised within the scope of the substantive relief sought in the proceedings in which the application for injunction is made”

22. Simpson J as he then was adopted the same reasoning in Shah vs Shah [1981] K.L.R 374. In this case, as shown above, there is no correlation between the prayers in the Notice of Motion (the interlocutory pleading) and the Plaint (the principal pleading). The Notice of Motion ought to be anchored in the statement of claim in the plaint and where this has not been done, an Applicant would be disentitled to the reliefs sought.

23. Even supposing that the summons was anchored on the Plaint, it is apparent that the prayers sought to access and or preserve an account belonging to a deceased person is only available to a legal representative which the Applicant is not.

24. On the material presented before the court, I find that Plaintiff/Applicant has not raised any arguable point on which she would be entitled to this court’s exercise of discretion in her favor. In the end the notice of motion dated 03rd November 2021 is found to have no merit and is dismissed with costs to the Defendant/Respondent.

DELIVERED IN MERU THIS 17TH DAY OF MARCH 2022

WAMAE. T. W. CHERERE

JUDGE

Appearances

Court Assistant - Kinoti

For the Plaintiff - Ms. Gikundi hb for Ms. Kiome for Charles Kariuki & Kiome Advocates

For the Defendant- Mr.Kiruai for Kiautha Arithi & Co Advocates