[2016] KEHC 6680 (KLR)

[2016] KEHC 6680 (KLR)

The court found that the plaintiffs, as wives of the defendant and mothers of the children, had locus standi to bring the suit, as their claim was based on trust and not merely on distribution of matrimonial property. The preliminary objection based on lack of locus and the inapplicability of the Married Women’s Property Act 1882 was dismissed, as the Matrimonial Property Act 2013 governed the dispute at the time of filing. The plaintiffs established a prima facie case for injunctive relief, as their averments regarding dispossession and risk of further alienation were unrebutted by the defendant, who failed to file a replying affidavit. The court held that the risk of irreparable harm...

Citation
[2016] KEHC 6680 (KLR)
Parties
Applicant: Hellen Muthoni Muthike; Applicant: Nancy Muthoni Muthike; Respondent: Fausto Muthike Mbuko
Court
High Court
Court Station
High Court at Kerugoya
Jurisdiction
Kenya
Judgment Date
26 February 2016
Case Number
Environment & Land Case 306 of 2014
Procedural Posture
Notice of Motion / Ruling on Preliminary Objection and Interlocutory Injunction Application
Outcome
Plaintiffs' application for interlocutory injunction granted; defendant's preliminary objection dismissed.
Judges
BN Olao
Legal Topics
Matrimonial Property, Trusts in Land, Injunctive Relief, Locus Standi, Preliminary Objection, Alienation of Property
Source Language
English
Land and Property Family and Children Civil Procedure Matrimonial Property Trusts in Land Injunctive Relief Locus Standi Preliminary Objection +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

Hellen Muthoni Muthike

Applicant

Nancy Muthoni Muthike

Applicant

Fausto Muthike Mbuko

Respondent

Procedural Posture

Notice of Motion / Ruling on Preliminary Objection and Interlocutory Injunction Application

Legal Issues

  1. 1 Whether the plaintiffs have locus standi to file suit against the defendant over the suit properties.
  2. 2 Whether the suit should have been brought under the Married Women’s Property Act 1882 or the Matrimonial Property Act 2013.
  3. 3 Whether the defendant holds the suit properties in trust for the plaintiffs and their children.

Ratio Decidendi

The court found that the plaintiffs, as wives of the defendant and mothers of the children, had locus standi to bring the suit, as their claim was based on trust and not merely on distribution of matrimonial property. The preliminary objection based on lack of locus and the inapplicability of the Married Women’s Property Act 1882 was dismissed, as the Matrimonial Property Act 2013 governed the dispute at the time of filing. The plaintiffs established a prima facie case for injunctive relief, as their averments regarding dispossession and risk of further alienation were unrebutted by the defendant, who failed to file a replying affidavit. The court held that the risk of irreparable harm...

Court Disposition

Plaintiffs' application for interlocutory injunction granted; defendant's preliminary objection dismissed.

Orders

  • A temporary injunction is issued restraining the defendant from selling, charging, or transferring L.R. No. MWERUA/TEBERE/B/4034, 4035, 4041, 4042, 4043, 4044, 4045, 4046, and 4047 pending hearing and determination of the main suit.
  • Parties to expedite compliance with Order II Civil Procedure Rules and have the suit heard and determined within twelve months, failing which the injunction shall lapse unless otherwise directed by the court.