[2022] KEHC 460 (KLR)

S.M.M v M.W.M & another (Matrimonial Case E025 of 2020) [2022] KEHC 460 (KLR) (Family) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 460 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Matrimonial Case E025 of 2020

AO Muchelule, J

May 12, 2022

MATRIMONIAL PROPERTY CASE NO. E025 OF 2020 (OS)

IN THE MATTER OF SECTIONS 6, 7 AND 9 OF THE MATRIMONIAL PROPERTY ACT, 2014 AND IN THE APPLICATION FOR DIVISION OF MATRIMONIAL PROPERTY

Between

S.M.M

Applicant

and

M.W.M

1st Respondent

Consultants Ltd

2nd Respondent

Ruling

1. The applicant S.M.M. and the 1st respondent M.W.M. got married in 1992 in Church in Murang’a. The marriage was blessed with four children, two of whom are adults. In 2013 the 1st respondent filed a petition for divorce. The marriage was dissolved in 2016.

2. The present dispute relates to the distribution and sharing of matrimonial property between the couple. The cause is contained in the amended Originating Summons dated 18th June 2021 filed by the applicant against the respondent. The property over which the applicant sought that there be an order declaring them to be matrimonial property jointly acquired and/or developed during their marriage are contained in the schedule of immovable and movable properties as follows:“Schedule of immovable properties:-a.Langata Civil Servant Estate Block No. xx/xxxx;b.Dandora Phase IV Plot No. Dxxxx comprising of two storied house with 14 single units;c.Kayole Plot No. Dxxx – four storied house with 40 single units;d.L.R. 1/xxx Apt A3 Dennis Court Kilimani – a 4 bedroomed apartment;e.L.R. No. xxx/xxxx/xx South B comprising of 11 one bedroomed apartments and 16 two bedroomed apartments; andf.Karen land L.R. No. xxxxx/xx Nairobi.Schedule of movable properties:-a.motor vehicle registration No. Kxx xxxx Toyota Premio;b.motor vehicle registration No. xxxx Toyota Allion;c.motor vehicle registration No. xxx xxxx Golf; andd.shares in various companies acquired from joint investment.”

3. The applicant’s averment is that both were employed and on salary, over and above the fact that he was doing business. In the course of the marriage they jointly bought, acquired and/or developed Langata Civil Servant Block No. xx/xxxx; Nairobi, Dandora Phase IV Plot x-xxxx; Kayole Plot No. x-xxx; Dennis Pritt Court A3 on L.R. No. x/xxx; property on L.R. No. xxx/xxxxx/xx at Balozi Estate, South B; undeveloped ½ acre Plot at Karen on L.R. No. xxxxx/xx; Nairobi and vehicles xxx xxx Toyota Premio, xxx xxxx Toyota Allion and xxx xxxx VW Golf. The couple operated a joint account at Barclays Bank where the 1st respondent was working. They obtained loans through the account and rental income from the Balozi Estate Property, Kayole Property and Dandora Property was deposited therein to service the loans and meeting family’s expenses. The couple’s matrimonial house was on the Dennis Pritt Road property. Upon divorce, the applicant vacated the house for the family.

4. The applicant’s complaint is that the 1st respondent created her own accounts through which rents are now being paid and that some of the accounts are in the names of the children. She does not account to him for the rents. Rents no longer go to the joint account. Secondly, after the dissolution of the marriage the 1st respondent in 2017 sold Kayole Plot No. xD-xxx for Kshs.12. 5 million to one Mary Wangari Ngugi and used the proceeds to repay the loan taken from Equity Bank to buy Karen Plot L.R. No. xxxxx/xx Nairobi. She then secretly sold the Karen Plot for Kshs.32 million to M/s Terik Investments Ltd and the proceeds went to her personal account. In 2018, she took additional loans and added to the Kshs.32 million and bought properties which she put in her name. The loans are being serviced using the rental income from the family properties.

5. Consequently, the applicant sought the following orders:-“a)That this application be certified as urgent and service be dispensed within the first instance.b.That this Honourable Court does issue a temporary injunction against the Defendants, their agents, servants and/or anyone claiming under them from selling, transferring, charging, evicting the plaintiff from the property and/or in other way interfering with properties known as:- LR xxx/xxxxx/xx Balozi Estate;

Block xx/xxxx – Langata Civil Servant Estate;

LR x/xxx Apt A 3 Dennis Court Kilimani and motor vehicles:-

-registration Kxx xxxx Toyota Premio;

-registration Kxx xxx Toyota Allion;

-registration Kxx xxxx VW Golf pending the hearing and determination of the plaintiff’s application;b.That injunction does issue against the Defendants, their agents, servants and/or anyone claiming interest under them from entering, selling, transferring, charging and/or in any other way interfering with the suit properties known as follows: Block No. xx/xxxx – Langata Civil Servant Estate;

LR x/xxx Apt A3 Dennis Court Kilimani;

LR xxx/xxxxx/xx Balozi Estate and motor vehicles:-

-registration Kxx xxxx Toyota Premio

-registration Kxx xxxx Toyota Allion

-registration Kxx xxxx VW Golf pending the hearing and determination of this suit.b.That this Honourable Court orders that the rent derived from LR xxx/xxxx/xx Balozi Estate and Block No. xx/xxxx Langata Civil Servant Estate be paid into a joint account operated by the applicant herein and the 1st respondent or in the alternative an independent Estate Agent be appointed to manage and receive rent from Block No. xx/xxxx Langata Civil Servant Estate and LR xxx/xxxxx/xx Balozi Estate pending the hearing and determination of this suit.c.That the OCS Industrial Area Police Station be required to enforce the Orders of this Honourable Court; andd.That the cost of this application be provided for.”

6. The 1st respondent filed a response to the amended Originating Summons. Essentially, she admitted that LR No. x/xxx apartment No. A3 on Dennis Pritt Road, South B LR No. xxx/xxxxx/xx Balozi Estate, property on Langata Civil Servant Estate Block xx/xxxx, Dandora Phase IV Plot No. Dxxxx and Kayole plot No. Dxxx were matrimonial property that was jointly acquired and/or developed and she is ready to have the same distributed. She denies that the couple ever owned the Karen property or that she sold it. She denied the claim that she had sold the Dandora property. She stated that she is servicing expensive loans on the properties, that the applicant was the one controlling the Langata property. She uses the rents to service the loans now that, like the applicant, she is no longer in employment. She further stated that the properties require maintenance, insurance and payment of utilities and therefore, the rents are required for these. Regarding shares, she stated that she bought them singly, and not jointly. Lastly, she admitted she got a separate account into which the rents were going into and that was because she was apprehensive that the applicant was diverting the monies which was exposing her to extreme hardship as her salary at the time was financing the loan repayments. She then blamed the applicant for receiving rents which he had not accounted for.

7. The present application by the applicant is dated 18th June 2021 and seeks the court to issue a temporary injunction to restrain the respondents (the 2nd respondent being Paragon Property Consultants Ltd), their agents and servants, from selling, transferring, charging, evicting the applicant from the above properties or in any way interfering with them. Secondly, the applicant sought that the court orders that rents from LR No. xxx/xxxx/xx Balozi Estate and Block No. 72/1258 Langata Civil Servant Estate be paid into a joint account operated by him and the 1st respondent or in the name of an independent agent until the suit is heard and determined. He asked the OCS Industrial Area Police Station be ordered to enforce the order. His case was that the Balozi Estate property was solely managed by the respondent and that its monthly rent was Kshs.711,000/= which she solely controls, and that the Langata property was under his charge and had rental income of Kshs.56,000/=. He stated that, now that they are no longer employed, the 1st respondent had denied him access to the rent from Balozi property. The 1st respondent’s case is that she takes care of the two younger children whose fees she solely pays. Further that she has outstanding loans on the property which she is singly servicing. She denied that she is selling or seeking to sell or interfering with the matrimonial property. It does not appear disputed that the 1st respondent obtained a loan of Kshs.1,400,000/= from the 2nd respondent using the Langata property as security, and that the loan was not repaid and now stands at Kshs.2,400,000/=. The 2nd respondent is seeking to recover the loan by seeking to auction the property.

8. The averment by the applicant that the vehicles were bought using rental income but that were registered in the 1st respondent’s name was not disputed.

9. Now that it is admitted that all the immovable properties in question are matrimonial property that were jointly acquired, and they fetch rent to which both the applicant and the 1st respondent have a claim, and the vehicles were bought using rental income, it is clear that the applicant has a prima facie claim and interest over all these properties, including rental income. The matrimonial property are jointly registered. Usually, they cannot be disposed of or transferred without reference to the applicant. However, now that the 1st respondent has been able to acquire a loan using the Langata property as security, it is clear that there is need to secure these properties to await the resolution of the case.

10. The vehicles are in the sole name of the 1st respondent and therefore can easily be disposed of, unless secured.

11. Each party is entitled to the rental income from the immovable property. During the determination of the suit, it will be clear how much rent will go to either party. It will also be clear how much rent has so far been paid and whoever has been receiving will be called upon to account. At least, the rent will be taken into consideration when sharing the matrimonial property. For the time being, it should be ascertainable how much is outstanding, how much fees and upkeep is required for the minor children, and how much is required for either party to live on now that they are no longer employed.

12. It is trite law that for an applicant to be entitled to an interlocutory injunction he has to show that he has a prima facie case with a probability of success. Secondly, an 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 the application on the balance of convenience (Giella –vs- Cassman Brown & Co. Ltd. [1973] EA 358).

13. On the material that is available, I am satisfied that the applicant is entitled to the orders sought in the application. The terms shall be that:-a.LR No. xxx/xxxxx/xx Balozi Estate, South B, Block No. xx/xxxx Langata Civil Servant Estate and Apartment No. A3 LR No. x/xxx Dennis Pritt Road in Kilimani shall not be sold, transferred or charged by the respondents or those acting under them until the suit is heard and determined;b.until the suit is heard and determined, all rental income from LR No. xxx/xxxx/xx Balozi Estate and LR No. Block xx/xxxxx Langata Civil Servant Estate shall be deposited into the joint account to be opened and operated by the applicant and the 1st respondent from which whatever loan, upkeep and other outgoings shall be paid by the parties; andc.vehicles Kxx xxxx, Kxx xxxx and Kxx xxxx shall not be sold or transferred until the suit is heard and determined.

14. Costs shall be in the cause.

DATED AND DELIVERED AT NAIROBI THIS 12THDAY OF MAY, 2022. A.O. MUCHELULEJUDGE