https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12036

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAIROBI** **FAMILY DIVISION** **MILIMANI LAW COURTS** **MATRIMONIAL PROPERTY CAUSE NO. E077 OF 2025** **ANN WANGUI MWANGI ................... PETITIONER/APPLICANT** **-VERSUS-** **ALEX MURAGE MBOGO ........……………............. RESPONDENT** **RULING** 1. This Court is seized of Notice of Motion Application dated 4th September, 2025 brought under **Sections 4,6,7,14 &17** of the **Matrimonial Property Act, Sections 1A, 1B & 3A** of the **Civil Procedure Act,** and **Articles 27,40,45 &68 (c) (iii)** of the **Constitution of Kenya** for orders:- 2. ***THAT an order be and is hereby issued restraining the Respondent from either by himself, through his agents, servants, representatives, and or any other party claiming under him from selling, alienating, disposing, appropriating, leasing, transferring, encumbering, sub-dividing, demarcating or in any other like manner dealing with the properties listed and described hereunder without the Applicant’s consent and /or permission of this Honourable Court.*** 3. ***Mutira/Kangai/1321*** 4. ***Kajiado/Kitengela/49606*** 5. ***Karai/Karai/9315*** 6. ***Karai/Karai 9316*** 7. ***Karai/Karai/9317*** 8. ***Mutira/Kangai/829*** 9. ***Mutira/Kangai/2063*** 10. ***Ruiru/Ruiru/East Block 2/7567*** 11. ***Ruiru/Ruiru/East Block/2/7568*** 12. ***Ruiru/Ruiru/East Block/2/7569*** 13. ***Ruiru/Ruiru/East Block/2/7570*** 14. ***360 Degrees Court Apartments (Apartment No. D45)*** 15. ***LR No. 209/15754*** 16. ***Retirement Pension held at the Insurance Company of East Africa Ltd ( I.C.E.A) alias I.C.E.A General Insurance Group Ltd.*** 17. ***THAT an order be and is hereby issued prohibitng the Lands Registrar of Kiambu County from processing any request that seeks to sell, alienate, forfeit, appropriate, lease, assign, transfer, encumber, sub-divide, demarcate or deal in any other like manner sd relates to the properties described as:*** 18. ***Ruiru/Ruiru/East Block 2/7567*** 19. ***Ruiru/Ruiru/East Block/2/7568*** 20. ***Ruiru/Ruiru/East Block/2/7569*** 21. ***Ruiru/Ruiru/East Block/2/7570*** 22. ***Karai/Karai/9315*** 23. ***Karai/Karai 9316*** 24. ***Karai/Karai/9317*** 25. ***THAT an order be and is hereby issued prohibiting the Lands Registrar of Kirinyaga County from processing any request that seeks to sell, alienate, forfeit, appropriate, lease, assign, transfer, encumber, sub-divide, demarcate or deal in any other like manner as relates to properties described as :*** * 1. ***Mutira/ Kangai/1321*** 2. ***Mutira/ Kangai/ 829*** 3. ***Mutira/ Kangai/2063*** 26. ***THAT an Order be and is hereby issued prohibiting the Lands Registrar from processing any request that seeks to sell, alienate, forfeit, appropriate, lease, assign, transfer, encumber, sub-divide, demarcate or deal in any other like manner as relates to the property described as ; Kajiado /Kitengela/ 49606.*** 27. ***THAT an order be and is hereby issued compelling the Lands Registrar of Kirinyaga County on a date and time to be determined by this Honourable Court to appear and confirm the duly recognized proprietor (s) of parcels identifiable as : Mutira/ Kangai /829 & Mutira / Kangai /2063. Additionally. That the said Lands Registrar to produce a certified copy of green card at the claimant’s cost as relates to the properties subject of this specific order within 7 days of service of this order.*** 28. ***THAT costs of this Application be provided.*** 29. The Application is supported by the Supporting Affidavit sworn by the Applicant. 30. The Application is opposed vide the Replying Affidavit dated 27th October, 2025. 31. Both parties have filed their submissions which this Court has duly considered. 32. The Applicant seeks that the Court issue preservation orders for the properties in dispute, which she asserts are Matrimonial Property. She further asserts that the Respondent has unlawfully transferred two of the properties from their joint registered ownership into his sole ownership, and argues that unless the preservation orders are granted, the proceedings in the main suit will be rendered futile by potential changes to the ownership of these properties. 33. The Respondent, on the other hand, argues that the Applicant has not met the threshold set out to warrant the grant of an interim injunction on the said properties. 34. It is his conviction that the cautions placed by the Applicant sufficiently preserve the subject properties during these proceedings and there is no requirement for additional preservatory orders. 35. **Issues and determination:** 36. I have considered the Notice of Motion Application, the affidavits on record and the rival submissions by counsel. The question for determination is whether the Applicant has made out a case for the grant of the interlocutory reliefs she seeks. **Whether the Applicant has met the required threshold for the grant of temporary injunction pending the determination of the main suit.** 1. **Order 40 (1)** of the **Civil Procedure Rules** states the circumstances under which temporary injunctions may be issued.: ***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) that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, 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.*** 1. The Applicant and the Respondent got married sometime on 3rd September, 2010 under the **Marriage Act** in Nairobi. They had three children. The marriage ended in a divorce granted by Hon. F. Terer in Magistrare Court **Divorce Case No. E647 of 2024.** 2. This Application is brought against the backdrop of an Originating Summons filed by the Applicant dated 4th September 2025 seeking the division and the distribution of Matrimonial Property. 3. As this is an interlocutory application, I can only draw very provisional conclusions regarding the merits of the case or any disputed legal arguments. 4. The Court must be careful, in considering applications for interlocutory injunctions, not to determine any disputed right with finality. The aim is to prevent a threatened wrong or the doing, by one of the parties to a litigation, an act which might threaten or endanger the rights of the party moving for an injunction. 5. The principles for granting interlocutory injunctions are set out in the celebrated case of**Giella v. Cassman Brown & Co. Ltd [1973] EA 358** as follows; ***“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 be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”*** 1. The Applicant must establish that she raises an arguable case with a probability of success; this was established in **Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KLR 125.** 2. Although the full evidence on whether the properties listed in this Notice of Motion fall within the classification of matrimonial property, and, if so, what each party’s contributions are, has not yet been taken at a hearing, I recognize that the Applicant and the Respondent were married and that the marriage was dissolved by a decree of the Court. 3. The Applicant has submitted proof of assets, and official searches indicate that the properties are registered in the names of parties that are relevant to the proceedings. Additionally, the proprietorship section highlights a period that is pertinent to these proceedings. 4. It is my considered view that the Applicant, through her application, Affidavits and submissions, has shown that she has an arguable right and that there exists a *prima facie* case. 5. In establishing the second test for granting an injunction, this court should consider whether the Applicant will suffer irreparable injury, which would not be adequately compensated by an award of damages. 6. The Applicant claims that the Respondent fraudulently orchestrated the transfer of Mutira/ Kangai /829 and Mutira / Kangai/ 2063, which constitute their upcountry matrimonial home, to himself without the requisite spousal consent. She provided evidence that she reported it as fraud under Police Station O.B No. 37/26/11/24. The Respondent has not denied the said claims. 7. The Applicant has provided compelling evidence of imminent threat to the properties. There is a legitimate concern that the property might be interfered with before the hearing and determination of the suit. Additionally, the risk of irreparable harm to the Applicant cannot be ignored; damages may not fully compensate for the harm done. 8. This court has no doubt in its mind about this matter as to resort to the balance of convenience. However, even if I extend the consideration to the balance of convenience, it is evident that the Applicant would face significantly greater harm if the injunction is denied. 9. I find merit in the Notice of Motion dated 4th September, 2025 and grant the following orders: 10. ***THAT an order is hereby issued restraining the Respondent from, either by himself, through his agents, servants, representatives, and/or any other party claiming under him, from selling, alienating, leasing, transferring, subdividing, encumbering or in any other like manner adversely dealing with the listed properties pending the hearing and determination of this suit;*** * 1. ***Mutira/Kangai/1321*** 2. ***Kajiado/Kitengela/49606*** 3. ***Karai/Karai/9315*** 4. ***Karai/Karai 9316*** 5. ***Karai/Karai/9317*** 6. ***Mutira/Kangai/829*** 7. ***Mutira/Kangai/2063*** 8. ***Ruiru/Ruiru/East Block 2/7567*** 9. ***Ruiru/Ruiru/East Block/2/7568*** 10. ***Ruiru/Ruiru/East Block/2/7569*** 11. ***Ruiru/Ruiru/East Block/2/7570*** 12. ***360 Degrees Court Apartments (Apartment No. D45)*** 13. ***LR No. 209/15754*** 1. ***Pending the hearing and determination of this suit, an order of prohibition is hereby issued, restraining the respective Lands Registrars from registering, processing, or effecting any dealings with the listed properties by way of subdivision, transfer, sale, charge, lease, or any other encumbrance whatsoever;*** 11. ***Ruiru/Ruiru/East Block 2/7567*** 12. ***Ruiru/Ruiru/East Block/2/7568*** 13. ***Ruiru/Ruiru/East Block/2/7569*** 14. ***Ruiru/Ruiru/East Block/2/7570*** 15. ***Karai/Karai/9315*** 16. ***Karai/Karai 9316*** 17. ***Karai/Karai/9317*** 18. ***Mutira/Kangai/1321*** 19. ***Mutira/ Kangai/ 829*** 20. ***Mutira/ Kangai/2063*** 21. ***Kajiado /Kitengela/ 49606.*** 1. ***Prayer 5 cannot issue at this stage; the applicant is at liberty to make necessary applications upon the taking of directions under Rule 24 of the Matrimonial Property Rules, which have not been taken in this Originating Summons*** 2. ***Costs to abide by the outcome of the suit*** 22. Orders accordingly. **DATED, DELIVERED** and **SIGNED** at **NAIROBI** on this **23RD** day of **JULY, 2026.** **……………………….** **C. KENDAGOR** **JUDGE** **In the presence of:** Court Assistant: Beryl Mr. O’makalwala, Advocate for the Applicant Ms. Njeri, Advocate for the Respondent