[2021] KEELC 2738 (KLR)
The court found that the applicant had established a prima facie case for the preservation of the suit properties, given her claim of spousal rights and the alleged lack of consent in the transfer of matrimonial property. However, the court recognized its jurisdictional limits, noting that while it could grant an...
Source-derived case information.
- Citation
- [2021] KEELC 2738 (KLR)
- Parties
- Applicant: JGM; Respondent: HMM; Respondent: JM; Respondent: IM
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E005 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Inhibition and Injunction
- Outcome
- Interlocutory inhibition order granted pending inter partes hearing; costs in the cause.
- Legal Topics
- Matrimonial Property, Spousal Consent, Land Inhibition Orders, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
JGM
Applicant
HMM
Respondent
JM
Respondent
IM
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Inhibition and Injunction
Legal Issues
- 1 Whether the applicant is entitled to an order of inhibition restraining dealings with the suit properties pending determination of matrimonial property proceedings.
- 2 Whether the respondents disposed of matrimonial property without the applicant's spousal consent.
- 3 Whether the Environment and Land Court has jurisdiction to grant orders relating to matrimonial property pending divorce proceedings.
Ratio Decidendi
The court found that the applicant had established a prima facie case for the preservation of the suit properties, given her claim of spousal rights and the alleged lack of consent in the transfer of matrimonial property. However, the court recognized its jurisdictional limits, noting that while it could grant an inhibition order to preserve the property, it could not make orders relating to the divorce or the final determination of matrimonial property rights, as those fall outside the ELC's mandate. Accordingly, the court granted an order of inhibition strictly pending the hearing and determination of the application before the ELC, directing service of the application on the...
Court Disposition
Interlocutory inhibition order granted pending inter partes hearing; costs in the cause.
Orders
- An order of inhibition as prayed for in prayer b is granted strictly pending the hearing and determination of this application by the ELC Court.
- The applicant is directed to properly serve this application upon the respondents within 10 days.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CASE NO. E005 OF 2021
JGM..........................................APPLICANT/PLAINTIFF
VERSUS
HMM...........................1ST DEFENDANT/RESPONDENT
JM..............................2ND DEFENDANT/RESPONDENT
IM..............................3RD DEFENDANT/RESPONDENT
RULING
1. The application states that it has been brought to court under section 17 of the Matrimonial Property Act 2013 and Sections 28(a) and 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 instant.
b) THAT this Honourabnle court do issue an order of inhibition, preservation / restraining any dealings with land parcel number LR. MAGUMONI/ THUITA/ xxxx, MAGUMONI/ THUITA/ xxxx, MAGUMONI/ THUITA/ xxxx, MAGUMONI/ THUITA/ xxxx, MAGUMONI/ THUITA/ xxxx, MAGUMONI/THUITA/ xxxxpending 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 respondents restraining themselve, their agents or servants from transferring or seeking any of the above mentioned properties pending the finalization divorce and matrimonial property proceedings.
d) THAT cost of this application be provided for.
3. The application is supported by the affidavit of JGM and has the following grounds:-
(i) THAT the applicant being the legal wife of the 1st Respondent has spousal rights over land parcel number LR. MAGUMONI/ THUITA/ xxxx, MAGUMONI/ THUITA/ xxxx, MAGUMONI/ THUITA/ xxxx, MAGUMONI/ THUITA/ xxxx, MAGUMONI/ THUITA/ xxxx, MAGUMONI/ THUITA/ xxxx.
(ii) That the applicant has come to learn that the 1st Respondent has already started disposing off properties without her consent as required under the law.
(iii) THAT there is a great imminent danger of the 1st Respondent disposing off the remainder of the properties to the detriment of the applicant.
(iv) That it is in the interest of justice 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.
(v) THAT the 2nd and the 3rd Respondent bought the land parcels from the 1st Respondent without obtaining spousal consent from the Applicant.
4. This application has been handled in chambers in the absence of the applicant.
5. Having considered the pleadings filed by the applicant in this matter, I have come to the conclusion that it merits being heard with the input of the applicant and the respondents. Regarding prayers b and c, I am of the view that prayer b, if granted can suffice to protect the suit property. However, in view of the fact that the ELC Court has no control over divorce and matrimonial proceedings, I am unable to grant prayer b as it is crafted. I will, therefore, grant prayer b pending hearing and determination of this application by the ELC Court.
6. In the circumstances, I issue the following orders:
a) An order of inhibition as prayed for in prayer b is granted STRICTLY pending the hearing and determination of this application by the ELC Court.
b) The applicant is directed to properly serve this application upon the respondents within 10 days of today.
c) The application will be heard interpartes on 27th July, 2021.
d) Costs shall be in the cause.
Delivered in Chambers at Chuka this 30th day of June, 2021 in the presence of:
CA: Ndegwa
Applicant absent
P. M. NJOROGE,
JUDGE.