[2023] KEHC 27266 (KLR)

RMM v RWR (Matrimonial Cause E006 of 2022) [2023] KEHC 27266 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27266 (KLR)

Republic of Kenya

In the High Court at Mombasa

Matrimonial Cause E006 of 2022

G Mutai, J

November 10, 2023

IN THE MATTER OF SECTION 17 OF THE MATRIMONIAL PROPERTY ACT

Between

RMM

Applicant

and

RWR

Respondent

Ruling

1. Before this court is a notice of motion application dated 11th May 2022. The application seeks the following orders: -a.Spent;b.That this honourable do direct the respondent to pay monthly upkeep up of Kes. 150,000/- to the applicant pending hearing and determination of this application and, in default, an order directing the manager ABSA Bank to deduct an amount of Kes.150,000 from the respondent's Account Number 2041231613 and that the same be remitted to the applicant on or before the 5th day every month;c.That this honourable do direct the respondent to pay monthly upkeep up of Kes.150,000/- to the applicant pending hearing and determination of the main suit and, in default, an order directing the manager ABSA Bank to deduct an amount of Kes.150,000/- from the respondents account number 204XXXX613 and that the same be remitted to the applicant on/or before the 5th day of every month;d.That this honourable court directs the respondent to release Kes. 600,000/- to the applicant for purposes of his medical expenses pending the hearing and determination of this application and or the main suit and amount of Kes.150,000/- from the respondent’s Account Number 204XXXX613 and that the same be remitted and the order of this court do act as a transfer of the said amount of money.e.That this honourable court be pleased to issue temporary injunctive orders restraining the respondent by herself, her servants, agents, and /or any other person claiming under them from conducting a survey, subdividing, charging, alienating, dispossessing the applicant from all that residential property known as Dagoretti/Riruta/6XXXX0/6XXXX1, commercial –cum residential property known as Dagoretti/Riruta/6XXXX2, motor vehicle registration number KCF 5XXXX make Volkswagen, motor vehicle registration number KCZ 9XXXX make Toyota and motor vehicle registration number KCU 5XXXX make Nissan pending the hearing and determination of this application save for with an express authority by the applicant;f.That this honourable court be pleased to issue temporary injunctive orders restraining the respondent by herself, her servants, agents, and/or any other person claiming under them from conducting a survey, subdividing, charging, alienating, dispossessing the applicant from all that residential property known as Dagoretti/Riruta/6XXXX2, motor vehicle registration number KCF 5XXXX make Volkswagen, motor vehicle registration number KCZ 9XXXX make Toyota and motor vehicle registration number KCU 5XXXX make Nissan pending the hearing and determination of the main suit save for with an express authority by the applicant; andg.That the cost of the application be provided for.

2. The application is premised on the grounds stated therein and also on the supporting affidavit of the applicant sworn on 11th May 2023. The applicant deposed that he solemnised his marriage with the Respondent on 21st April 1988 under the Islamic Sharia Law. The respondent petitioned for divorce on 10th February 2022 vide Mombasa Kadhi Court Divorce Cause No. E38 of 2022, which was successfully heard and determined, with the judgment being delivered on 28th April 2022.

3. He stated that the respondent, in collusion with their children and third parties not known to him, has rendered him destitute, leaving him to live like a pauper. The respondent has been sending him upkeep of Kes.13,000/-, which is not enough to sustain him, considering his age and health condition. The respondent diverted payments of all funds payable to them from the matrimonial property to her private account without his consent. He further contended that the respondent took various loans using the matrimonial property as security and, as such, misappropriated the funds and neglected the obligation to repay the same, placing the suit property at risk of being auctioned.

4. He further stated that the respondent had deprived him of all the matrimonial property solely on the ground that the same was developed on property acquired by her from inheritance. The properties are registered in the name of the respondent but are subject to matrimonial rights as he made great contributions, both monetary and non-monetary, which include but are not limited to child support and care, compassion and companionship. The applicant affirmed that he has nothing to depend on as all he generated was used in developing the properties that are currently in the name of the respondent.

5. He averred that they acquired the property known as Title Number Dagoretti/Riruta/4XXX9 from the respondent’s grandfather. The same was, however, developed using his income. The property known as commercial –cum residential property known as Title Number Dagoretti/Riruta/6XXXX2/6XXXX0, motor vehicle registration number KCF 5XXXX make Volkswagen, motor vehicle registration number KCZ 9XXX make Toyota and motor vehicle registration number KCU 5XXXX make Nissan and movables in the name of the respondent were acquired by the respondent during the subsistence of marriage and amount to matrimonial property and that he is entitled to a share of the same.

6. In response the respondent filed a replying affidavit sworn on 2nd October 2023. She denied the allegations by the applicant in his supporting affidavit. She stated that the applicant’s application for the provision of Kes.150,000/- and Kes.600,000/- is premature as the court is yet to determine the contribution that each party made towards the acquisition and development of the suit properties. She deposed that the prayers for injunctive orders do not meet the established threshold and cannot, therefore, be granted. She urged that the fact that she sent the applicant Kes.13,000/- every month does not mean she acknowledges that he is rightfully entitled to part of the matrimonial property and or the maintenance sought. She deposed that she was not opposed to the applicant getting his share of the matrimonial property subject to his contribution.

7. She further stated that the suit properties, save for the motor vehicles, were acquired solely by herself by way of inheritance from her parents and that she has been using loans to develop the said properties as well as servicing the loans by herself.

8. In the circumstances, she urged the court to dismiss the application with costs.

9. The application was canvassed by way of written submissions. I have not seen the submissions of the applicant either in the portal or in the file.

10. The respondent, through her advocates Edwin Omulama & Associates Advocates, filed written submissions dated 9th October 2023. Counsel submitted on two issues, are the applicant’s prayers for a Kes.150,000/- monthly upkeep and an additional lump sum payment of Kes.600,000/- merited, and is the applicant entitled to the injunctive orders sought?

11. On the first issue, counsel submitted that this issue can only be properly addressed during the hearing of the main suit and not at this interlocutory stage as the court has to determine what constitutes matrimonial property, the contribution and share of each party. No expert witness has been called or expert evidence tendered to establish the veracity and severity of the alleged ailment and or to warrant the grant of Kes.600,000/- for medical treatment.

12. Counsel relied on the case of MEK versus GLM [2018]eKLR, where the Court of Appeal laid down factors to be considered by the Court when considering maintenance cases and submitted that no evidence was tendered by the applicant concerning the assets and income as well as financial needs and obligations of each party neither is their affidavit of means filed by each party. Further, the applicant, in paragraphs 6, 7, 8, 11 and 14, conceded that the respondent has serious and weighty financial obligations in terms of the loans she is single-handedly servicing without his support.

13. Counsel submitted that the applicant has, therefore, moved the court prematurely on matters reserved for the main suit, and thus, the prayers sought are not merited.

14. On the second issue, counsel relied on the case of Giella versus Cassman Brown & Company Limited(1973)EA358 and submitted that there are three issues to be considered in issuing injunctive orders, namely, whether the applicant has established a prima facie case that the stated properties are matrimonial and or that he contributed to their acquisition; whether the applicant has established that he would suffer irreparable damages if the order of injunction is not granted; and whether the balance of convenience herein tilts in favour of the applicant.

15. On the first issue to consider, counsel submitted that the applicant has not established that the properties in question are matrimonial properties and or that he contributed to their acquisition. Therefore, the applicant has not established a prima facie case with a probability of success.

16. On the 2nd and 3rd issues for consideration, counsel submitted that since the applicant had not established a prima facie case, there was no need for the court to delve into these issues.

17. In conclusion counsel submitted that the prayers sought have no merit and that the issue of maintenance can only be resolved in the main suit.

18. I Have considered the application, the response and the respondent’s submissions, and it’s now my duty to determine whether the orders sought should be issued.

19. The applicant herein has sought monthly upkeep of Kes.150,000/- per month from the respondent on the grounds that since their divorce, he has been rendered destitute as all matrimonial properties are in the name and custody of the respondent, who only sends him Kes.13,000/- per month. He has also sought Kes.600,000/- for medical treatment.

20. In my view, the major dispute in this case is the contribution and share of each party in respect of the acquisition and development of the suit properties. This is the gist of the dispute before the court and will only be dealt with in the main suit. That being the case, I am unable to find merit in the instant application at this point.

21. On the injunction orders, the Court of Appeal in the case of Director of Public Prosecutions v Justus Mwendwa Kathenge & 2 others [2016] eKLR stated,“Needless to emphasize, the remedy of temporary injunction is a vital tool intended to preserve the property in a dispute until legal rights and conflicting claims are established, so as to prevent the ends of justice from being defeated. Order 40 recognizes that a temporary injunction will be sought where a property in dispute is in danger of being wasted, damaged, or alienated, or wrongfully sold in execution of a decree, or where a party threatens or intends to remove or dispose of the property in order to defeat any execution that may ultimately be passed. An injunction may also be applied for to restrain a party from committing a breach of contract or other injury. It is equally settled that a temporary injunction cannot be claimed as a matter of right, neither can it be denied arbitrarily by the court.Because of its importance and susceptibility to abuse certain guidelines have been developed while considering an application for temporary injunction. The three well- known tests enunciated in Giella v Cassman Brown (1973) EA 358 are to the effect that a party seeking a temporary injunction has to establish a prima facie case, whether the party seeking injunction will suffer irreparable damage if injunction is denied, and in case of doubt the issue in contention ought to be decided on the scale of a balance of convenience.”

22. Further the court in the case of JM v SMK & 4 others [2022] eKLR defined the three principles of granting an interlocutory injunction as follows;“What then constitutes a prima facie case? In the case of Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, the Court of Appeal held as follows:“The principles which guide the Court in deciding whether or not to grant an interlocutory injunction are, first, an applicant must show 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 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...A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true that the Court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence...The terms “prima facie” case, and “genuine and arguable” case do not necessarily mean the same thing, for in using another term, namely a sustainable cause of action, the words “prima facie” are frequently used to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner of considering, which was in relation to the pleadings that had been put forward in the case. It would be in the appellant’s interest to adopt a genuine and arguable case standard rather than one of a prima facie case, the former being the lesser standard of the two...In civil cases a prima facie case is a case in 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 to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.”As regards the second condition, whether the Plaintiff stands to suffer irreparable loss, it was held In Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR expressed itself as hereunder:“On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.”As regards the issue of balance of convenience, I associate myself with the decision in Pius Kipchirchir Kogo vs. Frank Kimeli Tenai [2018] eKLR where it was held as follows:“The meaning of balance of convenience in favor of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favor 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 plaintiffs to show that the inconvenience caused to them would be greater than that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer? In other words, the plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than which is likely to arise from granting it.”

23. The applicant has not argued and or submitted the in respect of his prayers for orders for an injunction, and thus, it’s my view that he has not established a case to warrant a grant of the said prayers.

24. The upshot of the foregoing is that I find no merit in the instant application. The same is hereby dismissed with no orders as to costs.

25. In the interest of justice, as the applicant is presumably indigent and of poor health, I order that the case be heard on priority basis.Orders accordingly.

DELIVERED, DATED AND SIGNED AT MOMBASA THIS 10TH DAY OF NOVEMBER 2023 VIA MICROSOFT TEAMS.GREGORY MUTAIJUDGEIn the presence of:-Ms Mumbu holding brief for Ms. Wanjiku for the Applicant;Mr. Omulama for the Respondent; andArthur – Court Assistant