[2011] KEHC 658 (KLR)
The court found that the applicant was not in possession or occupation of any of the disputed properties and therefore her appeal would not be rendered nugatory if the injunction was not granted. The court held that any loss suffered by the applicant could be compensated by monetary means if her appeal succeeded....
Source-derived case information.
- Citation
- [2011] KEHC 658 (KLR)
- Parties
- Applicant: Mueni Musau; Respondent: Brek Awadh Mbarak
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 139 of 2007
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction Pending Appeal
- Outcome
- Application for injunction largely dismissed with a limited exception.
- Legal Topics
- Injunctive Relief, Matrimonial Property, Pending Appeal, Rental Income, Disposal of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mueni Musau
Applicant
Brek Awadh Mbarak
Respondent
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an injunction restraining the respondent from disposing, alienating, mortgaging, or charging the suit properties pending appeal.
- 2 Whether refusal to grant the injunction would render the applicant's appeal nugatory or cause her irreparable harm.
- 3 Whether the applicant should be allowed to continue collecting rent from one of the properties for her upkeep pending appeal.
Ratio Decidendi
The court found that the applicant was not in possession or occupation of any of the disputed properties and therefore her appeal would not be rendered nugatory if the injunction was not granted. The court held that any loss suffered by the applicant could be compensated by monetary means if her appeal succeeded. However, recognizing the applicant's reliance on rental income from one house for her upkeep, and considering the history of the marriage, the court exercised its discretion to allow the applicant to continue collecting rent from that specific property pending the determination of the appeal. The remainder of the injunctive relief sought was denied.
Court Disposition
Application for injunction largely dismissed with a limited exception.
Orders
- Applicant is allowed to continue collecting and utilizing rental income from one house standing on Plot No. 807/11/MN old Malindi Road at Soko Mjinga pending the hearing and determination of the appeal.
- All other prayers for injunctive relief are disallowed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 139 OF 2007
MUENI MUSAU.......................................................................................................PLAINTIFF
=VERSUS=
BREK AWADH MBARAK...................................................................................DEFENDANT
RULING
Before me is the Notice of Motion dated 28th October 2011 in which the Applicant by way of prayers (3) and (4) seeks an injunction order to restrain the Respondent, his servants, agents and any other person acting on the authority of the Respondent from disposing off, alienating, mortgaging and/or charging any of the 15 properties, the subject matter of this suit between the two, pending the hearing and determination of an appeal filed in the Court of Appeal challenging the decision of this court in HCCC 139 of 2007 dated 21st September 2011. Briefly the Applicant had filed a suit before the High Court in Mombasa seeking amongst other reliefs distribution of the suit properties, which she claims were acquired during the course of her marital union with the Respondent. This court in its judgment delivered on 21st September 2011 dismissed the Plaintiff’s suit. The Plaintiff has filed an appeal against the decision of this court and in the interim seeks injunctive orders to restrain the Respondent from selling and/or disposing of the disputed properties. MR. GIKANDI Advocate argued the application on behalf of the Applicant whist MR. ABED who acted for the Respondent opposed the same.
I have given careful consideration to the submissions made by both counsel in this application. The Applicant has come to court seeking injunctive orders. The rules governing the grant or otherwise of an injunction are well set out in the celebrated case of GIELLA –VS- CASSMAN BROWN. Certainly this court cannot purport to sit in appeal over its own decision. That is a function exclusive to the Court of Appeal. However I note that the Applicant is not herself in possession or occupation of any of the cited properties. As such I fail to see how her appeal risks being rendered nugatory. If the Applicant succeeds upon appeal then she may be adequately compensated in monetary terms. I therefore fail to see what prejudice she stands to suffer if the orders sought are not granted.
However I do note [and this did come up during the hearing] that the Respondent allowed the Applicant to collect rent from one house standing on Plot No. 807/11/MN old Malindi Roadat Soko Mjinga. This she has done from the time of its construction upto very recently. The Applicant relies on this rent for her upkeep. In order not to render her totally destitute and in view of the history of the marriage between the couple I feel that it is only just and fair that the Applicant be allowed to continue to collect the rent from this one house pending the hearing and final determination of her intended appeal. As such I do make orders that the Applicant not be restrained from collecting and utilizing the rental income from one house standing on Plot No. 807/11/MN old Malindi Road at Soko Mjinga as she has always done. Save only for this exception the prayers (3) and (4) of the present application seeking injunctive orders are hereby disallowed. No order as to costs.
Dated and Delivered in Mombasa this 20th day of December 2011.
M. ODERO
JUDGE
In the presence of:
Mr. Gikandi for Applicant
Ms. Wachira for Respondent