[2017] KEELC 2729 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC NO. 57 OF 2015

PAULINE MUKUHI NG’ANG’A

(Suing as the personal representative of the

estate of the late JOSEPH KARUNGU NDINIKA)..…...PLAINTIFF

VERSUS

JOHN KARINGE NDINIKA……….………......….…1STDEFENDANT

CONSOLIDATED BANK OF KENYA LIMITED…..2ND DEFENDANT

MARY WANJIKU…….………………...........…….3RD DEFENDANT

RULING

The Plaintiff is the widow of Joseph Karungu Ndinika, deceased (hereinafter referred to as “the deceased”). The 1st Defendant was a brother to the deceased while the 3rd Defendant is said to have entered into a marriage with the deceased during the period when the Plaintiff and the deceased had separated. At all material times, the deceased owned all that parcel of land known as LR No. RuiruKiu/Block 3/189 on which he constructed a matrimonial home(hereinafter referred to as “the suit property”). The deceased and the Plaintiff lived on the suit property until sometimes in the year 1998 when they separated on account of what the Plaintiff has referred to as “cruelty by my husband”. The Plaintiff did not occupy the suit property again during the lifetime of the deceased who died on 12th October 2013. In the absence of the Plaintiff, the 3rd Defendant lived on the suit property with the deceased until his death.

On 10th January, 2012 the deceased charged the suit property to the 2nd Defendant to secure financial facilities for a maximum sum of Kshs.2,500,000/= that was made available by the 2nd Defendant to the 1st Defendant. The said charge was registered on 25th January, 2012. By the time of the deceased’s death on 12th October, 2013, the suit property was still charged to the 2nd defendant.

The Plaintiff brought this suit against the Defendants on 27th January, 2015 claiming that the charge over the suit property was illegal, null and void on the ground that the same was executed by the deceased without her consent contrary to the provisions of the Land Registration Act, 2012. The Plaintiff contended further that the 3rd defendant was a trespasser on the suit property and should be ordered to vacate the same forthwith.

Together with the plaint, the Plaintiff brought an application by way of Notice of Motion dated 26th January, 2015 seeking a temporary injunction to restrain the 2nd Defendant from selling the suit property or alienating the same in any manner howsoever, and the 3rd Defendant from occupying, residing on, entering, letting or otherwise claiming title or interest in the suit property pending the hearing and determination of this suit. The application was brought on the same grounds set out in the plaint which I have highlighted above. The application was opposed by all the Defendants. The 1st and 3rdDefendants filed grounds of opposition dated 13th February, 2015 and a replying affidavit sworn by the 1stDefendant on the same date. The 2nd Defendant opposed the Plaintiff’s application through a replying affidavit sworn by its legal Manager, Janet Mwaluma on 3rd March 2015. The 1st and 3rd Defendants contended that the 3rd Defendant was a wife to the deceased and was living with the deceased on the suit property when he was alive and continued living therein after his death. The 1st and 3rd Defendants contended that the charge in dispute was registered on 25th January 2012 when no spousal consent was required to charge a matrimonial property. They termed the Plaintiff’s application frivolous and an abuse of the process of the court. On its part, the 2nd Defendant contended that the charge that was made in its favour by the deceased was lawful and valid. The 2nd Defendant contended that no spousal consent was required before the suit property could be charged to the 2nd Defendant.

The Plaintiff amended the plaint on 21st April, 2015. In the amended plaint, the Plaintiff dropped her claim that the charge in dispute was executed without her consent. The Plaintiff introduced a new claim that the 2nd defendant had rescheduled the 1st Defendant’s loan by extending the repayment period without the deceased’s consent thereby discharging the deceased’s guarantee to the 2nd Defendant together with the charge. The Plaintiff did not however amend the application to put forward this new claim. The application remained grounded on lack of spousal consent.

The application was argued by way of written submissions. I have considered the application together with the affidavits which were filed in support thereof. I have also considered the grounds of opposition and the replying affidavits which were filed by the Defendants in opposition to the application. I am in agreement with the Defendants that the Plaintiff has not met the threshold for grant of a temporary injunction. As I have mentioned above, the only ground upon which the Plaintiff’s application was brought was that the charge executed by the deceased infavour of the 2nd Defendant was invalid for want of spousal consent and that the 3rd Defendant was a trespasser on the suit property. The Plaintiff has not placed any material before the court showing that spousal consent was required when the charge in dispute was executed. I am in agreement with the Defendants that no such consent was required. There is also no evidence that the 2nd Defendant varied the terms of the loan which it had advanced to the 1st Defendant. The fact that the loan was not repaid within 36 months is not a proof that the terms of the loan were varied. The Plaintiff has also not placed any evidence before the court that the 3rd Defendant is a trespasser on the suit property. The 3rd Defendant has contended that she was living on the suit property with the deceased as his wife before his death. I don’t think that the mere fact that the marriage between the deceased and the 3rd Defendant may be invalid renders the 3rd Defendant a trespasser on the suit property which she entered with the consent of the then registered owner. I am not satisfied that the Plaintiff has established a prima facie case against the Defendants with a probability of success. That being my view on the mater, it is not necessary for me to consider whether or not the plaintiff would suffer irreparable injury if the orders sought are not granted.

In the final analysis and for the foregoing reasons, the plaintiffs Notice of Motion dated 26th January, 2015 fails and the same is dismissed with costs to the Defendants.

Delivered, Dated and Signed at Nairobi this 28th day of April 2017

S. OKONG’O

JUDGE

In the presence of

Mr. Karanja for the Plaintiff

Ms. Anyango for the 1st and 3rdDefendants

Mr. Barago for the 2nd Defendant

Kajuju Court Assistant