[2013] KEHC 6486 (KLR)
The court found that the applicant had demonstrated the existence of the properties in question and that, if the respondent were allowed to dispose of them, the pending suit for division of matrimonial property would be rendered nugatory. Given that the application was unopposed and the risk of irreparable harm was...
Source-derived case information.
- Citation
- [2013] KEHC 6486 (KLR)
- Parties
- Applicant: J N D N; Respondent: M M M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 17 of 2013
- Procedural Posture
- Originating Summons / Interlocutory Application for Restraining Orders
- Outcome
- Application allowed. No order as to costs.
- Judges
- DN Musyoka
- Legal Topics
- Matrimonial Property, Division of Property, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J N D N
Applicant
M M M
Respondent
Procedural Posture
Originating Summons / Interlocutory Application for Restraining Orders
Legal Issues
- 1 Whether restraining orders should be granted to prevent disposal of matrimonial property pending determination of the suit.
- 2 Whether the applicant has established a prima facie case for interlocutory relief.
Ratio Decidendi
The court found that the applicant had demonstrated the existence of the properties in question and that, if the respondent were allowed to dispose of them, the pending suit for division of matrimonial property would be rendered nugatory. Given that the application was unopposed and the risk of irreparable harm was established, the court held that it was appropriate to grant the restraining orders sought to preserve the subject matter of the litigation until the suit is determined.
Court Disposition
Application allowed. No order as to costs.
Orders
- Restraining orders granted in respect of LR No. [particulars withheld], Plot No. [particulars withheld], and Land Parcel [particulars withheld] to prevent their disposal pending determination of the suit.
- No order as to costs.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
HIGH COURT CIVIL CASE (OS) 17 OF 2013
J N D N........................................................APPLICANT
VERSUS
M M M......................................................RESPONDENT
RULING
The Motion dated 11th April 2012 seeks restraining orders in respect of LR No. [particulars withheld] being Plot No. [particulars withheld] and Land Parcel [particulars withheld]. The application is interlocutory. It is filed within a suit brought under Section 17 of the Married Women's Property Act, 1882, where the applicant is seeking division of matrimonial property, being the assets referred to above.
There is an affidavit of service sworn on 21st April 2012 and filed in court on 25th April 2013. It evidences that the Motion dated 11th April 2013, as well as the Originating Summons of even date, was served on 16th April 2013 on the respondent. There has been no reply to the application. The Motion is therefore unopposed.
There is evidence that these properties exist. If they are disposed of by the respondent, the Originating Summons herein will be rendered nugatory. There is therefore merit in granting restraining orders to obviate such an eventuality. The Motion dated 11th April 2013 is hereby allowed. As the same is unopposed, there shall be no order as to costs.
SIGNED DATEDandDELIVEREDin open court this 15thday of August, 2013.
W.M. MUSYOKA
JUDGE