[2012] KEHC 4114 (KLR)
The court found that Plot No. 4 Ugweri was acquired during the marriage and, notwithstanding disputes over who purchased it, it constitutes matrimonial property. Given the parties are no longer cohabiting and the property is at risk of disposal, the court held that it is just and equitable to preserve the property...
Source-derived case information.
- Citation
- [2012] KEHC 4114 (KLR)
- Parties
- Plaintiff: Silvester Njeru Muchira; Defendant: Agata Wambui Njeru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 16 of 2011
- Procedural Posture
- Civil Case / Interlocutory Application (chamber Summons for Injunction)
- Outcome
- Interlocutory injunction granted; prayer 2 of the chamber summons allowed; order applies to both parties; costs in the cause.
- Legal Topics
- Interlocutory Injunctions, Matrimonial Property Disputes, Preservation of Property, Ownership Disputes, Spousal Rights, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silvester Njeru Muchira
Plaintiff
Agata Wambui Njeru
Defendant
Procedural Posture
Civil Case / Interlocutory Application (chamber Summons for Injunction)
Legal Issues
- 1 Whether the plaintiff is entitled to a restraining order to prevent the defendant from disposing of Plot No. 4 Ugweri pending determination of the suit.
- 2 Whether the property in question constitutes matrimonial property acquired during the marriage.
- 3 Whether the balance of convenience and justice require preservation of the property until the dispute is resolved.
Ratio Decidendi
The court found that Plot No. 4 Ugweri was acquired during the marriage and, notwithstanding disputes over who purchased it, it constitutes matrimonial property. Given the parties are no longer cohabiting and the property is at risk of disposal, the court held that it is just and equitable to preserve the property pending the hearing and determination of the main suit. The application satisfied the Giella v Cassman Brown test for interlocutory injunctions, as there was a prima facie case, potential for irreparable harm, and the balance of convenience favoured maintaining the status quo. The court therefore granted the restraining order sought by the applicant, applying equally to both...
Court Disposition
Interlocutory injunction granted; prayer 2 of the chamber summons allowed; order applies to both parties; costs in the cause.
Orders
- A restraining order is issued against both parties from selling, transferring, charging, alienating, leasing, or otherwise dealing with Plot No. 4 Ugweri pending the hearing and determination of the suit.
- The parties are directed to expedite the hearing of the main application/originating summons.
Full Case Text
Judgment text and source record
30 paragraphs
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REPUBLIC OF KENYA
IN THE HIGH COURT
AT EMBU
Civil Case 16 of 2011
SILVESTER NJERU MUCHIRA …………………………………………PLAINTIFF
VERSUS
AGATA WAMBUI NJERU………….... ……………………………DEFENDANT
R U L I N G
This is the chamber summons dated 22/2/2011 brought under Order 40 rules 1 & 2 Civil Procedure Rules. The Plaintiff/Applicant seeks a restraining order against the Respondent and others to stop them from selling, transferring, charging, alienating, leasing or in any other way dealing with PLOT NO.4 UGWERI pending the hearing and determination of this suit. It’s supported by the grounds in the body of the application and the affidavit of the Applicant sworn on 22/2/2011. In it he states that the Respondent is his wife since 1980. They have 5 children. And in November 2010 the Respondent walked out of the matrimonial home. They had a matrimonial property known as Plot No. 4 Ugweri which was registered in the Respondent’s name. He has learnt that the Respondent is in the process of disposing of it to a 3rd party yet this is the only family property. Hence the application.
The Respondent has in her replying affidavit denied all the Applicant’s application. She says it’s her who bought the property and she opposes the application. She further says the Applicant chased her away from the matrimonial home, and has married another wife.
Both M/s Njeru for Applicant and the Respondent orally submitted.
I have carefully considered the affidavits, annextures and the submissions made. There is no dispute that this is property that was bought during the subsistence of the marriage of the parties herein. About who bought it or who did not buy it is a matter of evidence which the court will not deal with now.
Since it’s also clear that the parties are not living together now, it would be just to preserve this property as the couple sorts itself out.
It’s however not clear who between the two is benefiting from the income from this building and plot. Are the children also benefiting? To ensure that the property is not disposed off without mutual agreement I do find that this is a matter that passes the test of GIELLA –VS- CASSMAN BROWN LTD [1973] EA.
I will allow prayer 2 of the chamber summons dated 22/2/2011. The same order applies to the Applicant.
The parties to hasten the hearing of the main application/ originating summons.
Costs in the cause.
DATED, SIGNED AND DELIVERED AT EMBU THIS 6TH DAY OF JUNE 2012.
H.I. ONG’UDI
JUDGE
In the presence of;
Mr. Mugambi for M/s Njeru for Applicant/Plaintiff
Respondent/Defendant – present
C/c - Njue