[2023] KEHC 25017 (KLR)

RW v LKW (Matrimonial Cause E079 of 2022) [2023] KEHC 25017 (KLR) (Family) (3 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25017 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Matrimonial Cause E079 of 2022

MA Odero, J

November 3, 2023

Between

RW

Applicant

and

LKW

Respondent

Ruling

1. Before this Court for determination is the Notice of Motion dated 7th November 2022 by which the Applicant R WA seeks the following orders:-“1. Spent.2. Spent.

2. Orders compelling the Respondent to submit all saleproceeds and bank statements of the business and any documents be issued.

3. This Honourable Court do issue an order of inhibition, preservation/restraining any dealing with land parcels number Ngong/Ngong/51947, Ngong/Ngong/52062,Karai/Renguti/951, Karai/Karai/8321, Nachu/Ndacha/54, Karai/Karai/2184, Karai/Renguti/954, Mwerua/

4. Ndacha/1992 pending the hearing and determination of the Milimani Divorce Cause No. E710 of 2022 and matrimonial property proceedings herein.

5. This Honourable Court do issue an order of inhibition, preservation/restraining any dealings with motor vehicle registration numbers KCS 498V, motor vehicle registration number KCS 929T and motor vehicle registration number KCT 064D pending the hearing and determination of the Milimani Divorce Cause No. E710 of 2022 and matrimonial property proceedings herein.

6. This Honourable Court do issue an order of temporary injunction against the Respondent restraining him, his agents or servants from transferring or seeking any of the above mentioned properties pending the finalization of the divorce and matrimonial property proceedings.Costs be cause.”

7. The Application was supported by the Affidavit of even date sworn by the Applicant.

8. The respondent Leonard Wamwiriopposed the application through his replying affidavit dated 27th January 2023. The application was canvassed by way of written submissions. The Applicant filed the written submissions dated 15th March 2023 whilst the Respondent relied upon his written submissions dated 26th May 2023.

Background 4. The parties herein got married to each other in the year 1999 under Kikuyu Customary Law. Their union was blessed with four (4) children. The marriage later fell into troubled times and the parties are now engaged in a Divorce Case No. E710 of 2022.

5. The Applicant claims that during the subsistence of the marriage the couple acquired the following assets/Properties:-(a)Ngong/Ngong/51947(b)Ngong/Ngong/52062(c)Karai/Renguti/654(d)Mwerua/Ndacha/1992(e)Karai/Karia/2184(f)Karai/Renguti/653 (registered in the Respondents name)(g)Karai/Karia/951 (registered in the Respondents name)(h)Karai/Karia/8321 (registered in the Respondents name)(i)Nachu/Ndacha/54 (registered in the Respondents name)(j)Karai/Karia/2184 (registered in the Respondents name)(k)Motor vehicle registration numbers KCS 498V

6. The Applicant filed in the High Court the originating Summons dated 7th November 2022 seeking declaration in respect of Matrimonial properties and division of the same contemporaneously with the said summons the Applicant filed this application seeking preservation of the matrimonial properties pending determination of the said.

Analysis and Determination 7. I have carefully considered the application before this court the Reply filed thereto as well as the written submissions filed by both parties

8. The law regarding the issuance of interlocutory injunction is found in order 40 rule 1 of the Civil Procedure Rules which provides as follows:-“Where in any suit it is proved by Affidavit 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”.

9. The Applicant herein is seeking temporary orders to prevent the sale and/or disposal of the suit properties pending the hearing and determination of the main suit.

10. The grounds upon which an injunction may be granted were set out in the case ofGiellavsCasman Brown (1973) EA as follows:-“The conditions for the grant of an interlocutory injunction are well settled in East Africa. 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 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”.

11. The definition of a prima facies case was given in Mrao LtdvsFirst American BankofKenya Ltd & 2others(2003) eKLR as follows:-“In Civil cases a prima facie case is a case in which on the material presented to the court, a tribunal property 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. This is clearly a standard, which is higher than an arguable case”.

12. At this stage the court is not required to make conclusive findings on the matters in issue. All that the court is required to do is to determine whether there exists a ‘prima facie’ case warranting issuance of the interlocutory orders.

13. The question of whether the properties are matrimonial properties and the question of what share each party is entitled to cannot be determined at this interlocutory stage. Those are issues which can only be determined after a full hearing of the main suit. The only issue for determination at this point is whether the injunctive orders sought ought to be granted.

14. In the case ofSilvester Momany Mrube -vs-glizar Ahmed Motar &another [2012] eKLR, Hon. Justice George Odunga (as he then was) stated as follows:“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.”15 The Applicant has averred that the listed properties were acquired during the subsistence of her marriage to the Respondent. That she has an interest in the said properties.

16. The Applicant is apprehensive that if the said properties are disposed of before the suit is determined she is likely to suffer irreparable harm.

17. Though some of properties are registered in the sole name of the Respondent the Applicant pleads that she made substantial contribution towards the acquisition of the said properties and that the sale/disposal of said properties will occasion her irreparable harm.

18. In the case of Pius Kipchirchir Kogo v Frank Kimeli Tenai(2018) eKLR the court stated as follows:-“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.”

19. There can be no doubt that the sale and/or disposal of the listed properties will occasion irreparable harm to the Applicant. Moreover the Respondent has indicated in his Reply that he has no intention to dispose these properties therefore he stands to suffer no prejudice if the injunctive orders sought are granted.

20. On the question of balance of convenience am guided by the case ofPius Kipchirchir Kogo – Vs- Frank Kimeli Tenai[supra] where the court defined “balance of convenience” as follows:-“The meaning of balance of convenience tilts 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 cause 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 cause to them be greater than that which may be caused to the defendant’s inconvenience be equal, it is the plaintiff who suffer.

21. I find that in this case the balance of convenience tilts in favour of the Applicant.

22. By prayer (3) the Applicant sought orders to compel the Respondent to submit all sale proceeds and bank statements. This is a final order which can only be issued after the suit has been heard. I therefore dismiss prayer (3) of this Motion.

23. Likewise the Applicant has sought interim orders pending the hearing and determination of the Divorce Cause filed in the Magistrates Court. Such orders cannot be issued by this court. Those prayers ought to have been made before the court which is hearing the Divorce Cause. I therefore dismiss prayer (4) of the Motion.

24. Finally, I find merit in the present application. Accordingly the same is partially allowed and I make the following orders:-(1)Orders be and are hereby issued restraining the Respondent, his agents or any person acting on his behalf from selling, transferring, charging disposing or in any other way dealing with the properties known as Ngong/Ngong/51947, Ngong/ Ngong/52062, Karai/Renguti/951, Karai/Karai/8321, Nachu/Ndacha/54, Karai/Karai 2184, Karia/Renguti/954, Mwerua/Ndacha/1992 and Motor Vehicle Registration Numbers KCS 498V, Motor Vehicle Registration Numbers KCS 929T, Motor Vehicle Registration Numbers KCT 064D pending the hearing and determination of the suit.(2)Prayers (3) and (4) of the Notice of Motion dated 7th November 2022 is hereby dismissed.(3)Each party to meet their own costs.

DATED IN NAIROBI THIS 3RD DAY OF NOVEMBER, 2023. …………………………………..MAUREEN A. ODEROJUDGEMATRIMONIAL CAUSE NO. E079 OF 2022 (OS) RULING Page 4 of 4