[2022] KEHC 13992 (KLR)

NLP v BEN (Originating Summons E001 of 2022) [2022] KEHC 13992 (KLR) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13992 (KLR)

Republic of Kenya

In the High Court at Lodwar

Originating Summons E001 of 2022

JK Sergon, J

October 13, 2022

Between

NLP

Applicant

and

BEN

Respondent

Ruling

1. Vide a Notice of Motion dated March 7, 2022, together with a supporting affidavit sworn by Ms. NLP, evenly dated; the Applicants sought for, inter alia, for orders:i.That this honourable court be pleased to certify this application as urgent and dispense with the service in the first instance.ii.That a temporary injunction do issue restraining the respondent his servants and/or agents from evicting the applicant and the issues of the relationship from the suit property and/or selling, alienating, wasting, charging, damaging and/or otherwise interfering with the said property pending hearing and determination of this application.iii.That A temporary injunction do issue restraining the respondent his servants and/or agents from evicting the applicant and the issues of the relationship from the suit property and/or selling, alienating, wasting, charging, damaging and/or otherwise interfering with the said property pending hearing and determination of the originating summon.iv.That costs of this application be provided for.

2. Prayer (i) and (ii) were granted. The main prayer for consideration is prayer (ii).

3. The Application is opposed.

Applicant’s Case 4. The applicants case and as averred in her supporting affidavit is that the applicant met the respondent sometime in 2003 where they developed their relationship that resulted in two issues namely Brian and Humprey; where one was sired by the Respondent while the other one was raised as his own in the union.

5. That during the pendency of their relationship, the respondent purchased parcel of Land Plot No. Nawoitorong/Narewa Block No. 3/2020/xx Measuring 0. 0646 Hectares; wherein the Applicant together with the minors are currently living. Subsequently, that the applicant sought to develop the property, and that she took a loan facility and built a house on the suit property. She averred that the loan facility was attached to her, the applicant, and that she has been repaying the said loan. Also, that the respondent did not contribute to the construction of the house.

6. The applicant posited contended that since the year 2017, the relationship between the applicant and respondent has irretrievably broken down after a consistent disagreement between the parties; Resulting to the respondent laying claim to the built house, and threatened to forcefully evict the applicant together with the two minors.

7. It is the applicants position that together with the minors, they shall suffer irreparable damage in the event that the respondents actualizes his threats and evicts them from the house. That theapplicant together with the minors have the right, in equal measure as the respondent, to enjoy the suit property; and therefore the respondent oughtto be restrained from interfering and or infringing the applicant's right to housing and shelter.

8. In advancing her case, the applicant submitted that the main issue for determination is whether the Application before this court, warrants an Injunction, and if it has met the conditions under the Giella v Cassman Brown & Co Ltd (1973) EA 358: (i)Whether the applicants have made out a prima facie case with a probability of success;(ii)Whether the Applicant might suffer irreparable injury if the injunction is not granted.(iii)If there is doubt, whether the balance of convenience favour the Applicant.

9. As to the first condition, as per Giella v Cassman Brown & Co. (supra), the applicant contended that she approached this court since she was in a union with the respondent, with two minors involved; where the respondent acquired the parcel of land for purposes of building a family home. However, that the same did not materialize since the relationship broke down irretrievably. That on prima facie, she relied on the case of Silvester Momanyi MarubevGuizar Ahmed Motari &another (2012) eKLR, where the court held that,“In determining this application, I am well aware that at this stage the court is not required to make any conclusive or definitive findings of fact or law, most certainly not on the basis of contradictory affidavit evidence or disputed propositions of law and that in an application for injunction although the court cannot find conclusively who is to be believed or not, the court is not excluded from expressing a prima facie view of the matter and the court is entitled to consider what else the deponent to the supporting affidavit has stated on oath which is not true.”

10. That further, the Court of Appeal in Mrao Limited v First American Bank of Kenya Limited & 2 others (2003) e KLR, the Court stated that,“A prima faciecase 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 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.”

11. The applicant maintains that the instant matter is based on the fact that the suit property is matrimonial property; wherein the respondent acquired the parcel of land, while that the applicant took a loan and built a house on the suit property. To that end, the applicant submitted that the applicant has established a prima facieto warrant injunctive orders.

12. For the second condition, the applicant submitted that the respondent is a violent man and has disrespectfully moved in with his new girlfriend to the house built by the applicant. Further, it was submitted that the respondent has on several occasions threatened, using abusive language and physical in an attempt to forcibly evict the applicant and the minors, from their home. therefore, that the applicant together with the minors shall be rendered homeless if the injunctive order stopping the respondent are not granted. Reliance was placed on the case of Pius Kipchirchir KogovsFrank Kimeli Tenai (2018) eKLR, where the court observed that,“irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.”

13. On the third condition, the applicant contended that the court is called to consider whether on a balance of convenience if it favors the applicant. Order 40 Rule 1 of the Civil Procedure Rules was relied upon.

14. That also, the court in Pius Kipchirchir Kogo Case (supra) defined the balance of convenience as,“The meaning of balance of convenience ill favor of the plaintiff' is that if an injunction is not granted and the Suit is ultimately decided in favour of the plaintiffs, the inconvenience caused to the plaintiff would be greater than that which would be caused to the defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the plaintiff’s' to show that the inconvenience caused to them be greater than that which may be caused to the defendant’s inconvenience be equal, it is the plaintiff who suffer. In other words, the plaintiff has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater which is likely to arise from granting”

15. Further, that in Paul Gitonga Wanjau v Gathuthis Tea Factor Company Ltd & 2 others(2016) eKLR, the court held that,“Where any doubt exists as to the applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which injury the applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance on convenience lies. "

16. In the end, the applicant asserted that she has establish a prima facie case, has proven the irreparable damage that may be suffered and has finally shown to this court that the balance of convenience is in her favour as it was in the case of MMM v LOO[2021] eKLR.

Respondent’s Case 17. The respondent, in opposing the application, relied on his replying affidavit sworn on June 6, 2022. In the main, therespondent contended that the marriage between the parties has not been proved as under the Marriage Act; and that where such marriage is alleged, the same is contested.

18. Further, the respondent asserted that he has never engaged in joint investment or development with the applicant. That the applicant has never contributed directly or indirectly to any of the respondent developments or assets whatsoever. The respondent maintains that the suit premises, which is still under construction, is funded by the respondent from loans that he has secured with his payslip. That the Respondent acquired the parcel of land and developed it prior to any relationship with theapplicant; thus the same cannot fall under Matrimonial Property, if any.

19. Additionally, the applicant has perpetuated violence against the respondent to an extent of procuring goons to attack him, and which matter was reported to Lodwar Police Station. That, the applicant left the suit premises voluntarily and removed her belongings therefrom, to her new house located elsewhere, around the year 2022, to live with her new husband. To that end, that the Applicant has not demonstrated any prima facie case to warrant the granting of the payers sought.

Issue for Determination 20. I have considered the parties’ pleadings and cases, the following issue for determinations arise; Whether the applicant has satisfied the threshold for granting of interim injunction.

Analysis and Determination 21. The court takes into consideration Order 40 Rule 1 of the Civil Procedure Rules, which provides that:“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;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 order.”

22. In the case of ANM v PMN (2015) eKLR, the court held that, “A party may seek injunctive relief if the party can establish by evidence the grounds set out in the landmark case of Giella v Cassman Brown & Co Ltd(1973) EA 358 and EA Industries v Trufoods(1972) EA 420. “A party shall present evidence to establish a prima facie case with probability of success. The party shall demonstrate that if the act or omission is not injuncted, the aggrieved party shall suffer irreparable loss, damage or injury. The court where in doubt may grant an injunctive relief on a balance of convenience.”

23. Turning to the instant matter, the condition for a prima facie case with a high probability of success, the Applicant argues that she developed the parcel of land through a loan and attached bank statements on the same; that the suit property is matrimonial property; also that they were married with the Respondent with two issues. To my mind, the evidence on record meets the threshold as the case has a probability of success.

24. On irreparable loss, damage, or injury, the applicant averred that the respondent is likely to dispose the suit property, and has threatened to evict them from the same. To the applicant, such an eviction and disposition of the property would cause her loss and suffering and render her homeless. To that end, I find that in absence of a temporary injunction the applicant is likely to suffer irreparable loss and injury should the suit property be alienated. This second condition for injunction is thus met.

25. The respondent has cast doubt as to the applicant’s current living arrangements, with allegations that she volunteered to move out of the suit premises. However, the applicants prayers for temporary injunctions from being evicted from the suit premises, amongst others, speak to the intention of the applicant to remain in the suit premises. To my mind, and in doubt, on a balance of convenience, the circumstances calls for granting of a temporary injunction.

26. In the end, the motion dated March 7, 2022 is allowed. Consequently, an interim injunction is hereby issued restraining the respondent his servants and/or agents from evicting the applicant and the issues of the relationship from the suit property and/or selling, alienating, wasting, charging, damaging and/or otherwise interfering with the said property pending the hearing and determination of the originating summons. Costs of the motion to abide the outcome of the originating summons.

DATED, SIGNED AND DELIVERED AT VIRTUALLY THIS 13TH DAY OF OCTOBER, 2022. ……………………J. K. SERGONJUDGEIn the presence of:……………………………for the Applicant……………………………for the Respondent