[2023] KEHC 27622 (KLR)

LK v PKK & another (Matrimonial Cause E021 of 2021) [2023] KEHC 27622 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27622 (KLR)

Republic of Kenya

In the High Court at Kiambu

Matrimonial Cause E021 of 2021

A Mshila, J

November 10, 2023

IN THE MATTER OF THE MATRIMONIAL PROPERTY ACT

Between

LK

Applicant

and

PKK

1st Respondent

Carlog Logistics Ltd

2nd Respondent

Ruling

1. Before court is an application by way of Notice of Motion dated May 30, 2023 and brought under Article 40 of the Constitution, Orders 40 Rule 1, Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law. The Respondents sought for orders:-a.Spentb.Spentc.That pending hearing and determination of this Application inter-partes, this Honourable Court be pleased to issue an order that the rental units erected on property TITLE NUMBER: JUJA/KIAURA BLOCK 47 (Waroma/NJEMUWA)/163 be jointly managed by both the Applicant and the Respondents and the proceeds of rent thereof be paid into a joint interest earning account to be opened in the names of the parties’ advocates.d.That pending hearing and determination of this application inter- partes, an order does issue that the Applicant renders a full, true and accurate account of all the earnings, income and proceeds she has received from the rental units erected on property Title Number: JUJA/KIAURA BLOCK 47 (WAROMA/NJEMUWA)/163 from July 2021 till present.e.That pending hearing and determination of this suit, this Honourable Court be pleased to issue a temporary injunction restraining the Applicant by herself, employees, servants and/or agents or otherwise howsoever from engaging in any acts of demolishing, destroying,removing and/or wasting any part of the fixtures, fittings, materials and/or structures of the rental units erected on property Title Number:JUJA/KIAURA BLOCK 47 (WAROMA/NJEMUWA)/163, which Order should be effected by the Officer Commanding Station Juja Police Station.f.That pending hearing and determination of this suit, this Honourable Court be pleased to issue an order that the rental units erected on property Title Number: JUJA/ KIAURA BLOCK 47 (WAROMA/NJEMUWA)/163 be jointly managed by both the Applicant and the Respondents and the proceeds of rent thereof be paid into a joint interest-earning account to be opened in the names of the parties’ advocates.g.That pending hearing and determination of this suit, an order does issue that the Applicant renders a full, true and accurate account of all the earnings, income and proceeds she has received from the rental units erected on property Title Number: JUJA/ KIAURA BLOCK 47 (WAROMA/NJEMUWA)/163 from July 2021 till present.

2. The application is premised on the grounds that the Applicant who has exclusive use, control, and possession of the suit property is destroying some of the fixtures, fittings of the rental units thus wasting away the suit property which is against the ruling of the court issued on 30th March 2023 whose import was to ensure preservation of the suit property as such the Applicant should be restrained so that the suit is not rendered nugatory.

3. The application is supported by the affidavit of Paul Kanyua Kibe the director of the 2nd Respondent who is the registered owner of the suit property. He deposed that on 26/1/2022 this court made ex-parte status quo orders that the Applicant had exclusive rights to collect rental proceeds to his exclusion and that further on 30/3/2023 the court delivered its ruling where it issued an injunction restraining the Respondent from dealing with the suit property. He contended that upon delivery of the ruling, the interim status quo orders were extinguished causing the Applicant to lose exclusive right to collect and utilise the rental proceeds to his exclusion. He averred that the Applicant has refused to account for the rental proceeds as well as allow him to gain access to the suit property as such he has been rendered homeless and the same is causing him emotional distress. He contended that the notion that the rental income is used to sustain the children cannot hold as the said children are all adults and in any case each child has been allocated a rental unit. The Applicant is also accused of vandalising the property’s fittings as such her actions should be checked. The 1st Respondent stated that he is now retired with no source of income and faces imminent risk of adverse action being taken by KRA due to declaration of rental income tax. He averred that he should not be denied the fruits of his labour and that the purpose of the ruling was to preserve the suit property and not to punish one of the parties. He sought that both parties manage the suit property for their mutual benefit as well as to stop the applicant’s continued acts of vandalism.

4. Lucyline Kaimuri Kanya filed her replying affidavit sworn on 19th June, 2023, in opposition to the Respondent’s application. She deposed that she has continued to maintain the suit property where the matrimonial home is situated contrary to the Respondents’ allegations. She averred that she continues to manage the rental units which income is their sole means of survival. She contended that the Respondent has never sought to be involved with the management of the property and only sought to evict the Applicant necessitating her application which was allowed by the court. She denied that she has denied the Respondent access to the property. The Respondent was said to be cohabiting with another woman in Gatundu where they have another matrimonial home. She contended that there is no proof to the allegations of the alleged destruction and that she has maintained the suit property in good condition and it is the Respondent who is chasing away tenants. The allegations about KRA were said to be an afterthought as no proof was provided. The court was urged to dismiss the application.

5. The Applicant opted to rely on her replying affidavit while the Respondents filed written submission.

Respondents’ Submissions 6. The Respondents submit that they have tendered evidence to demonstrate the Applicant’s acts of wasting away the suit property being photos and OB report as such are deserving of the orders sought to avoid rendering the suit a nugatory. Reliance was placed on the case of George Karanu Ndeithi & Another Vs Eddy Peter Ndungu Kimemia & 3 Others (2020) eKLR. It was submitted that the Applicant has failed to disprove the Respondents allegations that she is wasting the suit property. The Respondents submitted that if the orders sought are not granted, he stands to suffer loss as the Applicant will continue to waste the suit property and at the same time continue to collect and utilise rent to the exclusion of the Respondents causing the Respondent to lose out on his investment in the suit property. The court was urged to find that the balance of convenience tilts in favour of the Respondents by granting the injunctive orders. Reliance was placed in the case of Paul Gitonga Wanjau Vs Gathuthis Tea Factory Company Limited & 2 Others (2016) eKLR. The court was further urged to allow the application with costs as the Respondents are deserving of the mandatory injunction.

Issues For Determination 7. Upon reading the application and supporting affidavits and submissions this court has framed the following issues for determination which are;i.Whether the Respondents are deserving of the orders sought.(ii)Whether the Applicant should render a full, true and accurate account of all the earnings, income and proceeds she has received from the rental units erected on property Title Number: JUJA/ KIAURA BLOCK 47 (WAROMA/NJEMUWA)/163 from July 2021 till present.

Analysis Whether the Respondents are deserving of the orders sought. 8. Order 40 Rule 1(a) of the Civil Procedure Rules provides that:-1. Where in any suit it is proved by affidavit or otherwise—(a)that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or(b)... the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.

9. The criteria for determining whether the Respondents are deserving of the injunctive orders sought is laid down in the case of Giella Versus Cassman Brown (1973) EA 358. Similarly, in the case of Kibutiri Vs. Kenya Shell, Nairobi High Court, Civil Case No.3398 of 1980 (1981) KLR, the Court held that:“The conditions for granting a temporary injunction is East Africa are well known and these are: First, the 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 might 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. See also E.A Industries .vs. Trufo Ods (1972) EA 420. ”

10. In respect of a prima facie case, the Respondents aver that the Applicant is guilty of wasting the suit property and in any case she has not tendered evidence to disprove the Respondents’ evidence in terms of photographs. The Respondents are seeking that the Applicant be restrained from destroying and/or wasting away the suit property so that the suit is not rendered nugatory. The Applicant’s actions are said to be against the order of the court issued on 30/3/2023 ordering for preservation of the suit property.

11. In the case of Mrao versus First American Bank Of Kenya Limited & 2 Others (2003) KLR 125, a prima facie case was described as follows:“a prima facie case in a Civil Application includes but is not confined to a ‘genuine and arguable case’. It is a case 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 as to call for an explanation or rebuttal from the latter.”

12. From the record, it is clear that the court order issued on 30/3/2023 ordering for preservation of the suit property was issued against the respondents. The Applicant vehemently denies the claims by the Respondents that she is wasting away the subject matter. If anything she blames the 1st Respondent for wasting the rental units by chasing away tenants. This court finds that the evidence tendered by the Respondents to show that the Applicant is wasting away the subject property is not tangible at this point. The Applicant insists that she cannot waste her source of income.

13. At this stage and without first delving into the merits of this application, this court notes that the Applicant had filed a similar application where the court issued preservation orders for the suit property as against the Respondents. The Respondents have also similarly, filed the instant application.

14. The Respondents submit that they will suffer irreparable damage if the orders sought are not granted. The Applicant is said to be wasting the suit property. The Respondents aver that they are suffering from the actions by the Applicant as she is collecting rent in their exclusion. The Applicant on the other hand avers that she cannot destroy her own source of livelihood and that the evidence tendered by the Respondents is unsubstantiated. The Respondents aver that the Applicant has refused to account for the rental proceeds as well as allow the Respondents access and that both parties should manage the suit property for their mutual benefit. The Applicant denies the Respondents’ allegations stating that she has continued to maintain the suit property.

15. This court is inclined on a balance of probabilities to believe that the Applicant is not wasting the suit property and has continued to maintain the suit property as she considers the same to be her sole source of income.

16. In the circumstances, bearing in mind that there are the existing preservation orders issued on 30/03/2023 over the subject matter against the Respondents, this court is satisfied that the Respondents have failed to demonstrate how they will be prejudiced if a similar order of temporary injunction is not granted in their favour as against the Applicant.

Whether the Applicant should render a full, true and accurate account of all the earnings, income and proceeds she has received from the rental units erected on property Title Number: JUJA/ KIAURA BLOCK 47 (WAROMA/NJEMUWA)/163 from July 2021 to date. 17. The Respondents have not demonstrated that they cannot be compensated by way of damages if indeed they do suffer any loss. Therefore, this courts considered view is that taking of accounts at this stage is premature.

18. Further, this court finds that the balance of convenience tilts in the favour of the Applicant as there exists preservation orders in her favour which the court does not wish to interfere with at this stage as the Respondents have not placed any sufficient material before this court to warrant the interference of the order.

Findings And Determination 19. In the circumstances, this court makes the following findings and determination;i.The application is found to be devoid of merit and it is hereby disallowed;ii.The taking of accounts at this stage is found to be premature;iii.Each party to bear their own costs.

20. Orders Accordingly.

DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 10TH DAY OF NOVEMBER, 2023. A. MSHILAJUDGEIn the presence of;Mourice – C/AKaringa – for PlaintiffKanyonyi – h/b for Muchiri for Respondents3| Page