[2021] KEELC 2453 (KLR)
The court found that the applicant, as the legal husband, had established a prima facie case for the preservation of the suit properties. The applicant demonstrated that there was imminent risk of the respondent disposing of the properties without his consent, which could prejudice his spousal rights under the...
Source-derived case information.
- Citation
- [2021] KEELC 2453 (KLR)
- Parties
- Applicant: Francis Mbaka; Respondent: Agnes Wanja Francis
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E006 of 2021
- Procedural Posture
- Miscellaneous Application / Exparte Interim Application for Preservation Orders
- Outcome
- Interim inhibition order granted; application to be heard inter partes.
- Legal Topics
- Matrimonial Property Preservation, Injunctions, Spousal Land Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Francis Mbaka
Applicant
Agnes Wanja Francis
Respondent
Procedural Posture
Miscellaneous Application / Exparte Interim Application for Preservation Orders
Legal Issues
- 1 Whether the applicant is entitled to an order of inhibition to preserve the suit properties pending determination of matrimonial property proceedings.
- 2 Whether the respondent should be restrained from disposing of or dealing with the suit properties before the conclusion of divorce and matrimonial property proceedings.
Ratio Decidendi
The court found that the applicant, as the legal husband, had established a prima facie case for the preservation of the suit properties. The applicant demonstrated that there was imminent risk of the respondent disposing of the properties without his consent, which could prejudice his spousal rights under the Matrimonial Property Act and Land Registration Act. To prevent irreparable harm and preserve the subject matter of the dispute, the court exercised its discretion to grant an order of inhibition restraining any dealings with the specified land parcels pending the hearing and determination of the matrimonial property proceedings. The court declined to certify the application as...
Court Disposition
Interim inhibition order granted; application to be heard inter partes.
Orders
- Prayer for inhibition of dealings with LR. Karingani/Gitareni/2206, LR. Karingani/Gitareni/2774, LR. Karingani/Gitareni/2342 is granted pending hearing and determination of matrimonial property proceedings.
- Application is not certified urgent but will be heard on a priority basis.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO. E006 OF 2021
IN THE MATTER OF THE CONSTITUTION OF KENYA (2021) AND
IN THE MATTER OF THE LAND REGISTRATION ACT (NO. 3 OF 2012) AND
IN THE MATTR OF CIVIL PROCEDURE ACT AND RULES ENACTED AND
IN THE MATTER OF SHARING AND PRESERVATION OF MATRIMONIAL PROPERTY
IN THE MATTER OF THE MATRIMONIAL PROPERTY ACT NO. 49 OF 2013
BETWEEN
FRANCIS MBAKA.....................................................................APPLICANT
VERSUS
AGNES WANJA FRANCIS..................................................RESPONDENT
RULING
1. This application is dated 23rd July, 2021. It states that it has been brought to court under Section 17 of the Matrimonial Property Act and under Section 28(a) and Section 93(2) of the Land Registration Act.
2. The application seeks the following orders:
a) That this honourable court be pleased to certify this application as urgent and be heard exparte in the first instance.
b) That this honourable court do issue an order of inhibition, preservation/ restraining any dealings with land parcel number LR. Karingani/Gitareni/2206, LR. Karingani/Gitareni/2774, LR. Karingani/Gitareni/2342 pending the hearing and determination of the divorce and matrimonial property proceedings.
c) That this honourable court do issue an order of temporary injunction against the respondent restraining the defendant, her agents or servants from transferring or seeking any of the above mentioned properties pending the finalization divorce and matrimonial property proceedings.
d) That costs of this application be provided for.
3. The application is buttressed by the supporting affidavit of the applicant, Francis Mbaka, and has the following grounds:
a) That the applicant being the legal husband of the respondent has spousal rights over land parcel number, L.R. KARINGANI/GITARENI/2206, L.R.Karingani/Gitareni/2774, L.R. Karingani/Gitareni/2342.
b) That the applicant has come to learn that the Respondent has started bringing some buyers on the properties with interest of disposing off properties without his consent as required under the law.
c) That there is a great imminent danger of the Respondent disposing off the properties to the detriment of the applicant.
d) That it is in the interest that this application be allowed inhibiting any dealings on the said parcel of land pending the hearing and determination of the proceedings pertaining to this matter.
4. At this exparte stage, pending hearing of this application, I am inclined to only grant (b) for inhibition in order to preserve the suit property.
5. I issue the following orders:
a) The application is NOT certified urgent but will be heard on priority basis.
b) Prayer b is granted
c)The application will be heard interpartes on 21st September, 2021.
d) Costs shall be in the cause.
Delivered in Chambers at Chuka this 26th day of July, 2021 in the presence of:
CC: Ann
Ruling delivered in the absence of the parties
P. M. NJOROGE,
JUDGE.