[2022] KEHC 1418 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

MATRIMONIAL CAUSE NUMBER E006 OF 2021

RWK.....................................................................................PLAINTIFF/APPLICANT

VERSUS

SKM.......................................................................1ST DEFENDANT/RESPONDENT

JWWG..................................................................2ND DEFENDANT/RESPONDENT

THE LAND REGISTRAR, NAKURU................3RD DEFENDANT/RESPONDENT

R U L I N G

1. Through an application dated 25th May,2021 brought under Section 7,14, and 17 of the Matrimonial Property Act, Order 40 Rules 2,3,4 and 9, order 50 Rule 1 of the Civil Procedure Rules & Section 3A and 63 of the Civil Procedure Act, the Applicant seeks for the following orders:-

(a) Spent.

(b) Spent.

(c) THAT pending the hearing and determination of this suit, this Honourable Court be pleased to issue a temporary injunction restraining the 2nd respondent by herself, her agents and or servants from entering into, invading, evicting, selling, disposing, transferring or in any manner of whatsoever interfering with the Applicant’s and her family peaceful occupation and possession of all that parcel of land known as BAHATI/KABATINI BLOCK xxxx situated within Nakuru County.

(d) THAT the costs of this Application be borne by the Respondent.

2. The Application is based on the grounds on its face and supported by the Affidavit of RWK sworn on the same date.

3. She deposed that sometimes in the year 2000, she got married to the 1st Respondent in accordance to Kikuyu Customary Law and on or about the 11th February, 2010 together with the 1st respondent they purchased Land Parcel No. Bahati/Kabatini Block xxxx (Ndeffo) from one Grace Wanjiru Mwangi.

4. She stated that the 1st respondent later transferred and caused the land to be registered in his name and that it is in the same land that they established their matrimonial home and since its purchase, her family has regarded it as family property.

5. She contended that she and the 1st respondent jointly developed the property and built rental houses on it whose rent she was collecting since 2018 through Larkspur Commercial Agency.

6. That on or about the 3rd May, 2021, she received a letter dated 5th May, 2021 from M/S M. Waititu & Co. Advocates demanding that she should vacate the property as the same had been sold to the 2nd respondent herein who is her sister in law.

7. That in in December 2020, the 1st respondent moved out of the suit property without a word and has since kept away.

8. She conducted a search to ascertain the status of the suit property at the Lands Registry and she learnt that it is registered in the name of the 2nd Respondent.

9. She asserted that the action of the 1st and 2nd respondents is a clear ploy meant to deprive her and her children of the property which she has heavily invested on as her home . She contended the 1st respondent has not been supportive either financially or emotionally and has now diverted the rental income which she used to receive from the rental houses to elsewhere and her main concern is the welfare of their five children and more so their third born who is has a disability and in need of special care and attention.

10. That the 1st respondent’s conduct towards the family has rendered the family’s life unbearable and uncertain as his actions will lead to the developments erected thereon to be demolished.

11. In the circumstances therefore, she believes she is entitled to the aforementioned property and prays that this court allows her application as it is fair and just to do so.

12. The application is opposed by the 2nd respondent through her Replying Affidavit sworn on 1st July, 2021. She deposed that the application is anchored on falsehoods which are merely meant to mislead this Honourable Court into granting adverse orders pertaining to and or constraining LR No. Bahati Kabatini Block xxxx.

13. That on or about 7th January 2021 she purchased Land Parcel No. Bahati/Kabatini Block xxxx from the 1st respondent and one of the terms of the agreement was that the 1st respondent would transfer possession of the land to her on or about 30th April, 2021.

14. That at the time of sale of the above property the 1st respondent was the legal owner of the said property hence he had the capacity to transfer the same to a bonafide purchaser.

15. She asserted that the applicant has not met the threshold for grant of injunctive orders in accordance to Section 40 Rule 1 of the Civil Procedure Rules and as illustrated in Giella Vs Cassman Brown & Anor and in particular the allegation that the property in dispute is in danger of being wasted, damaged and or alienated by any party in the suit.

16. She averred that for a party to invoke the Provisions of Matrimonial Act, 2013 he or she must prove existence of marriage and how she acquired property. That should this court allow the application she stands to suffer irreparable loss and damage since she is already in possession of the suit property and developments are underway.

17. 1st respondent, SKM on 23rd July, 2021 also swore a Replying Affidavit in opposition to the application. He deponed that it is true that the he lived with the applicant as husband and wife and they were blessed with five (5) issues.

18. That they lived happily until sometime in 2020 when the applicant deserted their home and abandoned their children who he has been singlehandedly taking care of.

19. He deposed that on or about 11th February, 2010 he purchased LR No Bahati/Kabatini Block xxxx from one Grace Wanjiru Mwangi.

20. That since the applicant abandoned their family he has been facing financial constraints hence was forced to sell the parcel of land in order to take care of himself and their children.

21. He averred that he was the sole legal owner of the property when he disposed the same to the 2nd respondent on 7th January, 2021. That the applicant herein has not documented any payment receipt towards purchase of the property in issue if she indeed contributed towards its purchase and therefore she has no legal claim towards it.

22. At the close of pleadings, the 2nd Respondent only filed her submissions.

23. The plaintiff/applicant chose to rely on her affidavits.

24. The 1st respondent did not file submissions.

25. The 3rd defendant did not wish to participate in the application.

26. The 2nd respondent framed the following issues;

(a) Whether there is a prima facie case to be determined.

(b) Whether the applicant will suffer irreparable harm if injunction is not granted.

(c) Whether the balance of convenience is in favour of the applicant or the respondent.

(d) Who should bear the costs of this application.

27. On the first issue, the 2nd respondent relied on the definition of prima facie case as was stated in the case of Mrao Ltd vs First American Bank Of Kenya And 2 Others [2003] KLR 125, and submitted that the applicant failed to show that there is an arguable case with a high chance of success.

28. On the second issue, she argued that injury will be regarded as irreparable where there is no specific or fixed pecuniary standard for measuring damages. For what amounts to irreparable damage the 2nd respondent relied on the case of Pius Kipchirchir Kogo Verses Frank Kimeli Tenai [2018] eKLR.

29. It was her position that the applicant has not demonstrated the kind of injury she will face should this court decline to grant her the injunctive orders.

30. On the third issue, the 2nd respondent relied on the case of Orissa State Commercial Transport Corporation Ltd vs Satyanarayan Singh [1974]40 CUT LT 336 for the proposition that balance of convenience means the comparative mischief or inconvenience to the parties and that in this case the balance of convenience lay with her as she has been in continuous possession of the parcel of land for many years and she would be highly inconvenienced if injunction orders are granted.

31. The 2nd respondent argued that costs follow the event and that a successful party in a suit is entitled to the same.

ISSUES FOR DETERMINATION

32. The only issue for determination is whether or not to grant the temporary injunction order as sought by the applicant.

ANALYSIS & DETERMINATION

33. The principles for granting an injunction are well settled in the case of Giella vs Cassman Brown LtdE. A 1973 pg. 358. An applicant must establish that he or she has a prima facie case with a probability of success; that if the orders sought are not granted he/she will suffer irreparable harm which would not be adequately compensated by an award of damages and if the court is in doubt, it will decide the application on balance of convenience.

34. The definition of prima facie case and balance of convenience and what amounts to irreparable damage is well stated in the case of Pius Kipchirchir Kogo vs Frank Kimeli Tenai [2018]eKLR as follows:-

“A prima faciecase does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. This court finds that though the plaintiffs have established that they are the proprietors of the suit property through transmission, it is arguable by the defendant that she has unregistered rights in the property being the widow to the deceased.

Irreparable injurymeans 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

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.”

35. The application is based on the contention that this was matrimonial property belonging to the plaintiff and the 1st respondent, acquired during their marriage. That at the time of the sale by the first respondent to the 2nd respondent, the applicant and her children were in occupation of the same and living off the proceeds from the rental houses thereon. It is opposed on the ground that the applicant has not established she was married to the 1st respondent and that the 2nd respondent is in possession and has been for many years and developments are under way.

36. With respect to the 2nd respondent’s statements that she has been in possession of the property, that cannot be factually true because this application was provoked by the letter from her counsel addressed to the 2nd respondent to vacate the land. If indeed she had been in possession as she alleges, would she need to issue a notice to him to vacate? And if indeed he had been in possession of the land having sold it to his own sister he would not need a notice to vacate.

37. With respect to the applicant the test ofa prima facie case depends on whether there is evidence that she and the 1st respondent were married at the time the property was acquired. The 2nd respondent argues that the applicant has not placed before the court any evidence of marriage as per the Marriage Act 2014. However, the 1st respondent, the seller of the property concedes that he and the applicant are married, hence removing any doubt as to this issue. The 2nd respondent cannot pretend not to be aware of the relationship between her brother and her sister in law and the fact that they have 5 children. The 1st respondent’s only contention is that she deserted the matrimonial home in 2020 and he sold the property in 2021.

38. In the premises it is common ground that the applicant and the 1st Respondent were indeed married under Kikuyu Customary Marriage. The 1st respondent alludes to the applicant deserting the home in 2020. The applicant accuses him of the same thing. That is the subject for determination by the divorce court. The question here and now is whether this property is matrimonial property. Matrimonial property is defined under Section 6 of the Matrimonial Property Act (“the Act”) to mean: -

a) the matrimonial homes or homes;

b) household’s goods and effects in the matrimonial homes;

c) any other immovable or movable property jointly owned and acquired during the subsistence of the marriage.

39. It is not in dispute that the land registered in the sole name of the 1st respondent who decided to dispose it off to the 2nd respondent in whose name it now stands registered. The 1st and 2nd respondents argue that the applicant has not annexed any evidence of contribution towards the purchase of the said property by way of receipts or any other documents. Section 2 of the Actdefines contributions as: -

a. “Monetary and non-monetary contribution and includes:

a) domestic work and management of the matrimonial home.

b) Childcare

c) Companionship

d) management of family business or property and

e)work”.

40. It is evident from the definition of contribution that the issue with respect to the applicant’s and 1st respondent’s contribution will not be just about receipts and documents. This will be determined at the hearing of the cause and will depend on the evidence adduced before the court.

41. It is the applicant’s position that the property as matrimonial property was sold and transferred unlawfully to the 2nd respondent The 1st respondent did not consult her as his spouse at the time he sold the same to the 2nd respondent. The acknowledges disposing off the suit property without the knowledge of the Applicant.

42. Section 12 of the Matrimonial Property Act, 2014 provides as follows: -

12. Special provisions relating to matrimonial property

(1) An estate or interest in any matrimonial property shall not, during the subsistence of a monogamous marriage and without the consent of both spouses, be alienated in any form, whether by way of sale, gift, lease, mortgage or otherwise.

(2) A spouse in a monogamous marriage, or in the case of a polygamous marriage, the man and any of the man’s wives, have an interest in matrimonial property capable of protection by caveat, caution or otherwise under any law for the time being in force relating to the registration of title to land or of deeds.

(3) A spouse shall not, during the subsistence of the marriage, be evicted from the matrimonial home by or at the instance of the other spouse except by order of a court.

(4) Subject to subsection (3), a spouse shall not be evicted from the matrimonial home by any person except—

(a) on the sale of any estate or interest in the matrimonial home in execution of a decree;

(b) by a trustee in bankruptcy; or

(c) by a mortgagee or charge in exercise of a power of sale or other remedy given under any law.

(5) The matrimonial home shall not be mortgaged or leased without the written and informed consent of both spouses”

43. This court is duty bound to preserve the matrimonial home/property pursuant to the provisions of the law requiring spouses not to sell matrimonial property without the knowledge or consent of the other spouse.

44. Under order 40 (1) of the Civil Procedure Rules provides as follows on the issue of when temporary injunctions can be granted:

“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.”

45. It is my considered view that the applicant has demonstrated that she has a prima facie case with a probability of success once the case is fully ventilated. She is the wife to the 1st respondent who disposed off the property to the 2nd respondent without her consent. In fact, the 2nd respondent is the sister to the 1st respondent. The Applicant has argued that after being deserted by the 1st Respondent she continued to reside in their matrimonial home with the children, one of whom suffers from a disability. That is their home and any eviction as intended by the 2nd respondent vide the letter dated 5th May 2021 and in the manner intended, to demolish what is there and put up her own developments, will not only waste the property as known by the applicant and her family, but is likely to cause them to sufferirreparable harm, which would not be adequately compensated by an award of damages.

46. Even the balance of convenience is in favour of the applicant. In the case of Paul Gitonga Wanjau vs Gathuthis TeaFactor Company Ltd & 2 Others(2016) eKLR, where the court discussed the issue on balance of convenience. The court in that case expressed itself as follows:

"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. "

47. The balance of convenience tilts towards preserving the suit property pending the hearing and determination of the matter.

48. In the circumstances I find that the application has merit and the same is allowed.

49. An order be and is hereby issued that: pending the hearing and determination of this suit, temporary injunction be and is hereby issued restraining the 2nd respondent by herself, her agents and or servants from entering into, invading, evicting, selling, disposing, transferring or in any manner of whatsoever interfering with the Applicant’s and her family peaceful occupation and possession of all that parcel of land known as BAHATI/KABATINI BLOCK xxxx situated within Nakuru County.

50. The costs of this Application be borne by the Respondent.

51. Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF MARCH 2022.

MUMBUA T MATHEKA

JUDGE

IN THE PRESENCE OF;

CA EDNA

WACHIRA WAIGANJO ADVOCATES FOR APPLICANT

G C NYONGESA ADVOCATE FOR 1ST DEFENDANT/RESPONDENT

MS WANJERI FOR OAG FOR 3RD RESPONDENT

R. MIRUKA & CO ADVOCATES FOR 2ND DEFENDANT/ RESPONDENT