[1992] KEHC 133 (KLR)
The court found that the applicant had established a prima facie case for the grant of an interlocutory injunction. The evidence presented in the affidavits indicated ongoing harassment by the defendant based on her alleged status as the applicant's wife, which had caused the applicant distress and disruption in his...
Source-derived case information.
- Citation
- [1992] KEHC 133 (KLR)
- Parties
- Applicant: Hezron Ndanyi Lidede; Defendant: Margaret Kamunya Emonde
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2084 of 1992
- Procedural Posture
- Chamber Summons Application / Ruling on Interlocutory Injunction
- Outcome
- interlocutory injunction granted
- Legal Topics
- Declaratory Relief, Marriage Validity, Injunctions, Harassment, Capacity to Marry
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hezron Ndanyi Lidede
Applicant
Margaret Kamunya Emonde
Defendant
Procedural Posture
Chamber Summons Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the defendant from harassing or interfering with him on the basis of an alleged marriage.
- 2 Whether the applicant has established a prima facie case with a probability of success to warrant the grant of an injunction.
- 3 Whether damages would be an adequate remedy if the injunction is not granted.
Ratio Decidendi
The court found that the applicant had established a prima facie case for the grant of an interlocutory injunction. The evidence presented in the affidavits indicated ongoing harassment by the defendant based on her alleged status as the applicant's wife, which had caused the applicant distress and disruption in his professional life. The court held that unless restrained, the defendant's actions could not be adequately compensated by damages. Applying the established principles for granting interlocutory injunctions, the court concluded that the applicant was entitled to the relief sought, pending determination of the main suit regarding the validity of the alleged marriage.
Court Disposition
interlocutory injunction granted
Orders
- The defendant is restrained by herself and/or her agents from interfering with or harassing the plaintiff in her alleged capacity as the plaintiff’s wife or in any other manner howsoever until the final determination of the suit or until further orders of the Court.
- Costs of the application shall be costs in the cause.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO 2084 OF 1992
HEZRON NDANYI LIDEDE.................................APPLICANT
VERSUS
MARGARET KAMUNYA EMONDE...................DEFENDANT
RULING
The suit on which this chamber summons application is based was started by a plaint and it is a declaratory suit seeking among other things this Court’s declaration that no valid marriage or any marriage at all subsists between the plaintiff and the defendant. I will say no more about the suit itself but will revert to the application.
The application is brought under orders 39 rule 2 (1) of the Civil Procedure Rules and is supported by the applicant’s affidavit. The main prayer is for an injunction restraining the defendant/ respondent by herself and/or her agents from interfering with or harassing the plaintiff in her alleged and purported capacity as the plaintiff’s wife or in any other manner howsoever until the final determination of the suit or until further orders of the Court. Paragraph 8 of the applicant’s affidavit states on numerous occasions during the month of April and May 1992 the defendant has harassed him at his place of work and in social places by insisting to him, his friends and other persons that a valid marriage subsists between her and the plaintiff. She has also harassed him through the Children’s Officer Nairobi Area that he must maintain the defendant’s children. As a result of these numerous instances of harassment and interference the plaintiff says he has been unable completely to sleep or concentrate on his clearing and forwarding consultancy and he wishes that therefore to have Court stop the defendant from doing so till the suit he has filed is determined.
The application is contested. There was grounds of objection filed and a replying affidavit sworn by the defendant/respondent. In the grounds of objection it is stated that the plaintiff has come to Court with dirty and soiled hands for an equitable remedy which he should not be given. He represented himself as having the capacity to contract a marriage and he should be stopped from the about turn he now seems poised to make the acts of harassment are otherwise denied in the respondent’s affidavit what is deponed in both affidavit and in the respondent’s affidavit are matters really should come up during the hearing of the substantive suit. What is required at this stage if the applicant is to get his prayer is for him to show that he has at the end of the day a prima faciecase with a probability of success that if the respondent is not restrained by an injunction the damage he is likely to suffer would not be able to be compensated by an award of damages. If the Court is in doubt the matter will be decided on the balance of convenience. A person who is customarily married lacks capacity to contract a statutory marriage with another woman when that first marriage subsists unless he or she wishes to convert that customary marriage to a statutory one with the same spouse. If one is statutory married one is unable to contract a legal and valid customary marriage with another woman when that statutorily marriage has not been dissolved. These are but only basis and elementary facts about this troublesome area of our laws. This will be the issue for determination when the main suit comes up.
Having looked and scrutinized the contents of the two affidavits it appears to me that the respondent is going to have rather an uphill task but as I said I am not considering the main suit. Suffice it to say that my view as of now is that the applicant has established that he’s entitled to the injunction to stop the respondent from harassing him on the basis that she is his wife until that issue is decided on so I grant prayers number 1 in the chamber summons dated 27th May 1992 and filed in the registry of this Court on the same date.
I direct that the costs of the application will be costs in the cause.
Dated and delivered at Nairobi this 11th day of June , 1992 .
J.A MANGO
JUDGE