[2017] KEHC 3806 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

MATRIMONIAL CAUSE NUMBER 4 OF 2016

J W C--------------------------------------------------------APPLICANT

VERSUS

L K M-----------------------------------------------------RESPONDENT

RULING

1. J W C (hereinafter the applicant has moved this Court vide Notice of Motion dated 18/1/2016. The orders sought are;

1. Spent

2. Spent

3. THAT pending the hearing of this petition and the settlement of the matrimonial property through possession, reversion, or declaration of the extent of a trust, the respondent be restrained by way of an injunction from selling, transferring, disposing off, physically accessing or in any other way dealing with the following properties:-

NAKURU/RARE/NGURIGA/[particulars withheld]

PLOT NUMBER [particulars withheld] NGWATANIRO CENTRE

MATRIMONIAL HOME IN NJORO

PLOT NUMBER [particulars withheld] THIKA

NAKURU/RARE/GICOBO/[particulars withheld]

2. The application is premised on grounds:

1. THAT the applicant and the respondent have been married for over (30) years. They have had children in the course of the marital union and they have acquired property whose particulars are set out hereinabove. All the property was registered in the names of the respondent since the relationship of the applicant and the respondent was based purely on trust.

2. THAT the respondent has deserted the matrimonial home and he now lives within Thika in an adulterous union with one J M. The respondent filed a divorce in a bid to justify his adulterous tendency. That case has been registered as divorce cause number 26 of 2015.

3. THAT the respondent has conjured up false reasons for the divorce after he has deserted his family and neglected his children.

4. THAT the respondent has sold some of the properties acquired in the course of the marriage and his intention is to sell all the property and render the applicant homeless. At common law as well as under Kikuyu customs, a married woman has a right to retain the matrimonial home and the same is never available for distribution under the Matrimonial Property Act.

5. THAT unless the court issues orders prayed for, the applicant may be rendered homeless and without any property for reversion or possession.

3. It is further supported by her sworn affidavit filed on 17/2/2016.

4. The gist of the application, the supporting grounds and affidavit is that the Applicant and the Respondent were married for 30 years. During the subsistence of the marriage, they acquired property which was registered in the names of the Respondent due to the mutual trust existing between the two.

5. The applicant was gainfully employed as a primary school teacher while the Respondent was employed by [particulars withheld].

6. The applicant avers that she contributed to the acquisition of matrimonial property. They settled on land curved out of land owned by the parents of the respondent (the applicant’s in laws) where they established a matrimonial home.

7. Additionally they acquired the following properties;

- Nakuru/Rare/Nguriga/ [particulars withheld]

- Plot No. [particulars withheld] Ngwataniro

- Plot Number [particulars withheld] Thika Town

- Nakuru/Rare/Gichobo/[particulars withheld]

8. Subsequently after retire, the respondent deserted the family to live in Thika. He has since filed a divorce.

9. The applicant seeks preservation of the matrimonial property pending the determination of the suit herein.

10. The application is opposed and in a replying affidavit L K M (the respondent) has deponed that he solely purchased parcel No. Nakuru/Rare/Nguriga/ [particulars withheld] without any assistance from the applicant. He exhibits a loan application form and letter from his employer to confirm this.

11. He adds that he sold Parcel No. Nakuru/Rare/Nguriga/[particulars withheld] to several purchasers for value. He annexes sale agreements.

12. He avers that he solely purchased plot No. [particulars withheld] Ngwataniro without any assistance from the applicant. He exhibits a copy of transfer dated 19/5/1988. He has since sold the said plot to one Mr. Wainaina though he has misplaced the agreement.

13. He adds that he had been allocated plot No. [particulars withheld] Thika by the Thika Municipal Council. However, the same was repossessed as he was unable to pay land rates.

14. He indicates that he bought parcel of land No. Nakuru/Rare/Gichobo/ [particulars withheld] from one S N K without the assistance of the plaintiff. A sale agreement is exhibited.

15. He used the above title as collateral at Kenya Commercial Bank with a view to developing their matrimonial home. This land was almost auctioned owing to outstanding arrears but the respondent saved it.

16. He acknowledged selling Parcel No. Nakuru/Rare/Gichobo/ [particulars withheld] to G G M to help in his treatment of diabetes and hypertension.

17. He states that he sold some of his properties with the blessings of his wife in an effort to start up business. If the applicant was aggrieved then she ought to have sought injunctions. His business venture failed.

18. He categorically denies abdicating his role as a parent stating that he took loans to set up the matrimonial home and he paid school and college fees. He asserts that contrary to the applicant’s allegations, it is the applicant who used to assault him. He exhibits a P3 form. The applicant was arrested and charged in Nakuru Criminal Case Number 1859 of 2015 with the offence of assault.

19. The respondent states that he is entitled to the matrimonial home as the same was gifted to him by his parents. It would be unjust to order him out of the home. It is the applicant who should be restrained from the matrimonial home since she is the one facing assault charges.

20. The respondent believes that during the subsistence of the marriage the applicant lawfully acquired properties which properties the respondent is not claiming.

21. In a further affidavit, the applicant in rejoinder has stated that the replying affidavit is based on a misunderstanding of the matter before court. The issue is that the properties were acquired during the subsistence of the marriage.

22. She adds that she contributed in purchase of Nakuru/Rare/Nguriga/ [particulars withheld] by working on the farm and the proceeds therefore being used to clear the loan from AFC.

23. Any sale of properties was done in breach of the Applicant’s equitable interest to the land.

24. The applicant avers that she paid Kshs. 27,000 towards purchase of Nakuru/Rare/Gichobo/ [particulars withheld], money obtained from Teacher’s Sacco. She annexes copy of payment voucher from Teacher’s Sacco and an extract of bank statement.

25. In another affidavit, the respondent reiterates that he sold parcel No. Nakuru/Rare/Nguriga/ [particulars withheld] to innocent purchasers who are in occupation. Plot No. [particulars withheld] Ngwataniro belongs to Mr. Wainaina, another purchaser. Parcel No. Nakuru/Rare/Gichobo/ [particulars withheld] is also sold to G M.

26. The application was canvassed by way of written submissions and I am indebted to counsel for their industry in exposition of the issues arising herein.

27. I have considered the application, the affidavits on record and the annextures as well as the submissions by counsel.

28. Of determination is whether the plaintiff has met the threshold set in Giella V. Cassman Brown that is to say;

i) Whether the applicant has established a prima facie case with a probability of success.

ii) Whether the applicant is likely to suffer irreparable loss should the order not issue.

iii) Where does the balance of convenience lie.

29. It is common ground that the applicant and the respondent are husband and wife. The Applicant's case is that she is entitled to property acquired during coverture between her and the respondent. The claim is based on the Matrimonial Property Act.

30. The Matrimonial Property Act defines matrimonial property as;

a) Matrimonial home or homes.

b) Household goods in the matrimonial home or homes.

c) Any other movable or immovable property jointly owned and acquired during the subsistence of the marriage.

31. The applicant set out 5 properties (parcels of land) including the matrimonial home which she avers were acquired during the subsistence of the marriage.

32. The respondent has denied any contribution by the applicant to the acquisitions of the property.

33. At this stage, it is enough for the applicant to prove the existence of a marriage between herself and the respondent and the acquisition of property during the subsistence of the marriage. The issues of actual contribution by either spouse is a matter to be interrogated at trial and is better left to the trial judge.

34. By demonstrating that she was married to the respondent, she was gainfully employed as a teacher and she participated in maintaining their home and the children, the applicant has established a prima facie case with a probability of success. It must be emphasized that a prima facie case with a probability of success is not one that must necessarily succeed but one which has a chance to succeed.

35. It is worthwhile noting that under Section 2 of the Matrimonial Property Act of 2013, contribution is defined to be monetary and non-monetary contribution and includes:

a) Domestic work and management of matrimonial home.

b) Child care

c) Companionship

d) Management of family business and property

e) Farm work

36. Is the applicant likely to suffer irreparable loss should the orders not issue? The answer to this is in the affirmative. The property in question is land. The need to preserve the status quo during the pendency of this suit cannot be gainsaid. Any transfer, charging, sale or other adverse dealing with the land which would change its status and character would leave the applicant greatly prejudiced and damages may not be adequate compensation.

37. Already there is the entry of 3rd parties in the arena in the form of alleged purchasers. If status quo is not preserved, this matter is likely to get more convoluted and complex if more transfers be done making it difficult for the applicant to enjoy her rights should the case resolve in her favour.

38. While so holding, I am alive to the need to balance the rights of the applicant with those of the respondent.

39. As well put by Lord Diplock in the case of American Cyanamid Co. V. Ethicon (1975) IER 505, the object of an interlocutory injunction is to protect the plaintiff against injury by violation of his right which he would not adequately compensate in damages recoverable in the action if the uncertainty has resolved in his favour at the trial.

40. But the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he would not be adequately compensated under the plaintiff's undertaking.

41. In our instant suit, I have weighed both interest and am persuaded that the plaintiff would suffer irreparable loss if the properties were nor preserved and on the other hand no prejudice or loss would be suffered by the respondent if the preservation order was given.

42. Again the balance of convenience tilts in favour of maintaining the status quo to ensure that even the purported purchasers do not adversely deal with what they may be in occupation of.

43. I have factored in the respondent's counsel's submissions that orders of injunction and Prohibition cannot issue against properties that are not in possession of the respondent, he having sold the same to 3rd parties. Having observed that the fact that the properties having been acquired during coverture legitimises the applicant's claim to the same as matrimonial properties, even if sold, the trial court (based on its findings) will use the doctrine of tracing in recovery.

44. Black's Law dictionary defines tracing as:

"The process of tracking property's ownership or characteristic from the time of its origin to the present."

45. No doubt adverse orders may impact negatively on bone fide purchasers for value without notice.

46. However, all is not lost for the purported purchasers as the Law provides adequate mechanism through which they can get enjoined in the proceedings to protect their interest if at all.

47. With the result that I allow the notice of motion in terms of prayer 3 on condition that the applicant renders a written undertaking as to damages. Costs shall abide outcome of the suit.

Orders accordingly.

Dated, Signed and Delivered at Nakuru this 19th day of July, 2017.

A. K. NDUNG'U

JUDGE