[2022] KEHC 15835 (KLR)

JKW v RWM; LNK (Interested Party) (Civil Suit E018 of 2022) [2022] KEHC 15835 (KLR) (Family) (4 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15835 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Suit E018 of 2022

MA Odero, J

November 4, 2022

IN THE MATTER OF THE MATRIMONIAL PROPERTY ACT 2013

Between

JKW

Applicant

and

RWM

Respondent

and

LNK

Interested Party

Ruling

1. Before this Court for determination is the Notice of Motion Application dated March 23, 2022 by which the Applicant JKW seeks the following orders:-“1. SPENT.

2. Pending the hearing and determination of the suit filed herein, the Respondent and the interested party, their servants and/or agents be restrained by way of a temporary injunction from selling, alienating, transferring, subdividing, encumbering, wasting, damaging or in any way disposing off the suit property herein being Land Reference No. Dagoretti/Waithaka/2XXX together with the buildings and developments thereon.

3. SPENT

4. The Interested Party is ordered to transfer the suit property into the joint names of the Applicant and the Respondent within one hundred and twenty (120) days upon issuance of the orders hereof.

5. The Registrar of the High Court of Kenya be authorized to sign the transfer documents and any other related documents thereof in place of either the Respondent and/or interested party in default of the Interested party and the Respondent signing same.

6. The costs of transfer of the suit property from the Interested Party to the joint name of the Applicant and the Respondent including stamp duty payable and other related charges thereof be shared equally between the Applicant and the Respondent.

7. Costs of this application be in the suit.”

2. The Application was premised upon Order 40 Rule 1 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, Sections 17(1) and (2) of the Matrimonial Property Act 2013 and all other enabling provisions of law and was supported by the Affidavit of even date sworn by the Applicant.

3. The Respondent RWM opposed the application through the Replying Affidavit dated May 11, 2022. The Interested Party LNK did not file any reply to the application.

4. The application was canvassed by way of written submissions. The Applicant filed skeletal submissions dated June 24, 2022 whilst the Respondent relied upon her written submissions dated June 27, 2022.

BACKGROUND 5. The Applicant and the Respondent got married to each other on December 13, 2006 at the office of the Registrar in Nairobi. The Applicant told the court that their union was legally dissolved vide a decree Absolute issued on 15th March 2022 in Divorce Case No. 11 of 2021 filed at the Kikuyu Law Courts.

6. The Applicant avers that during the subsistence of the marriage vide a Sale Agreement dated November 19, 2010 he purchased 0. 10 hectare of land to be hived out of land Parcel Number Dagoretti/Waithaka/277 from the Interested Party (hereinafter the ‘suit property’) for a purchase price of Kshs 1,280. 000/-.

7. The Applicant states that he paid the entire purchase price alone. That however, he consented to the Respondent his wife to be indicated in the Sale Agreement as the sole purchaser. That he built rental units on the suit property and also constructed a semi permanent matrimonial home using a bank loan. The Applicant avers that the Respondent contributed less than 20% towards the purchase matrimonial home.

8. The Applicant further avers that the Respondent moved out of the matrimonial home in the year 2020 and occupied one of the rental units. That the Respondent collects the rental income from some of the units on the suit property totaling Kshs 35,000/- per month whilst he also collects rental income form the remaining units totaling approximately Kshs 31,000 per month.

9. The Applicant states that the Interested Party has indicated to him that he is ready and willing to transfer the property once the parties agree amongst themselves who the suit property should be transferred to. The Applicant now seeks orders to restrain the Respondent and the Interested Party from disposing and/or alienating the suit property to his detriment. The Applicant also seeks a mandatory order directing the Interested Party to transfer the suit property into their joint names.

10. The Applicant also asserts that he alone made 100% contribution towards the purchase of the suit land and that he paid 80% of the cost of developing the property with the Respondent contributing only 20%. The Applicant prays that the suit property which is the only matrimonial property be divided on an 80:20 ratio in favour of himself getting 80% of the value of the suit property and the Respondent receiving a 20% share.

11. As stated earlier, the application was opposed. Whilst conceding that she and the Applicant were married to each other, the Respondent states that she only became aware of the divorce upon service of this suit and denies knowledge of and/or participation in any divorce proceedings.

12. Regarding the suit property the Respondent avers that the couple decided to consolidate their finances and purchase the property together in favour of their children. The Respondent categorically denies the Applicants claim that he contributed 100% of the purchase price and denies that the Applicant is entitled to an 80% share of the matrimonial property. She states that the parties had agreed to have the suit property registered in their joint names.

13. The Respondent further avers that she made substantial contribution towards the purchase as well as towards the development of the suit property as well as providing for the domestic needs and the needs of the couples young children.

14. The Respondent alleges that the Applicant made an attempt to forge the Title to the suit poverty and to sell it off forcing her to place a caution on the property. The Respondent alleges that the Applicant locked her out of the matrimonial home forcing her to take up residence in one of the rental units. The Respondent prays for division of the matrimonial property in the ratio of 80:20% her own share being 80% and the Applicant getting a 20% share.

15. Finally, the Respondent prays that the entire suit property be transferred into her name as she is apprehensive that the Applicant wishes to dispose of the same.

Analysis and Determination 16. I have carefully considered the application before this court, the Affidavit filed in reply as well as the written submissions filed by both parties. The Applicant is seeking the issuance of temporary orders pending the hearing and determination of the main suit.

17. The grounds upon which interim injunctive orders may be granted even are well settled in Kenyan Law. In the case ofGiella Vs Cassman Brown & Co Ltd[1973] EA the court stated as follows:“The conditions for the grant of an interlocutory injunction are well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

18. The definition of what constitutes a ‘prima face’ case was given in the case of Mrao Ltd Vs First American Bank Of Kenya Ltd & 2 Others [2003] KLR 125 where the court held as follows:-“In civil cases a prima facie case is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. This is clearly a standard which is higher than an arguable case.”

19. Both parties herein agree that the suit property was purchased/acquired during the subsistence of their marriage. Each claims to have made a greater contribution towards the acquisition of said property. However, the question of how to divide the property is not one that can be determined at this interlocutory stage. The question of division of matrimonial property can only be determined after the hearing of main suit.

20. I am satisfied that a prima facie case has been established warranting orders to preserve the property pending determination of the main suit. In my view, the current status quo ought to be maintained. Accordingly, I do grant interim orders in terms of prayer (2) of the Motion. Prayers (4), (5) and (6) are in my view premature and are declined. Each party to meet their own costs.

DATED IN NAIROBI THIS 4TH DAY OF NOVEMBER, 2022. …………………………………..MAUREEN A. ODEROJUDGE