[2024] KEHC 5559 (KLR)

SNK v JMM (Matrimonial Cause E057 of 2023) [2024] KEHC 5559 (KLR) (Family) (3 May 2024) (Ruling)

Neutral citation: [2024] KEHC 5559 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Matrimonial Cause E057 of 2023

PM Nyaundi, J

May 3, 2024

Between

SNK

Applicant

and

JMM

Respondent

Ruling

Introduction 1. The Application for determination is that dated 17th July, 2023 presented by the Applicant under Article 45 (3) of the Constitution of Kenya, Sections 7,12, 17 (1), 17(2)(a) of the Matrimonial Property Act and order 40 of the Civil procedure Rules 2010.

2. In response the Respondent has filed Notice of Preliminary Objection dated 19th September 2023 and replying affidavit sworn on 28th November 2023. The Respondent seeks dismissal of the Suit on the following grounds-1. The Applicant has invoked this High Court’s jurisdiction prematurely contrary to the provisions of Section 7 of the Matrimonial Property Act No. 49 of 20132. The Applicant’s suit is a non- starter as no marriage has been established or dissolution of the same lodged / and or concluded between the parties3. The suit is an abuse of the Court process.

3. Both parties complied with the Court’s direction that the Preliminary objection and Application be canvassed by written submissions and have filed their respective submissions.

The Applicant’s Submissions 4. The Applicant submits that the Respondents Preliminary Objection does not meet the threshold as set out in the locus classicus case of Mukisa Biscuit Manufacturing Co. Ltd v Westend Distributors Ltd 1969 E.A 696. It is submitted that the Preliminary objection as framed is not on a pure point of law. On the 2nd limb of the Preliminary Objection it is contended that the Originating Summons is presented under Article 45 (3) of the Constitution, Section 4,17(1) and (17(2)(a) of the Matrimonial Property Act under which provisions the Court has a mandate to issue a declaration of rights to any property that is contested between that person and a spouse. Reference is made to the decision in NCK v GVK [2015] eKLR and GKS v JMBB [2020] eKLR and AKK v PKW [2020] eKLR

5. On whether the Originating Summons is a non-starter as a marriage has not been proved it is submitted that the existence of marriage will be proved by adducing evidence. This is not a pure point of law and that therefore the preliminary objection must fail on this point as stated in the case of Nitin Properties Ltd v Singh Kalsi & Another [1995] eKLR

6. On the Substantive Application the Applicant contends that she has met the conditions upon which a court will grant an injunction as articulated in the Court of Appeal decision in Nguruman Limited v Ian Bonde Nielsen & 2 Others [2014] eKLR.

7. Its further submitted that the facts and circumstances of the case lend themselves to the grant of an interlocutory mandatory injunction as has been settled by judicial precedence and the Applicant cites the decisions in Kenya Breweries Ltd & Anor v Washington O. Okeyo [2002] eKLR and Nation Media Group & 2 Others v John Harun Mwau [2014] eKLR and urges that in the instant case there exist special circumstances that warrant the grant of a mandatory injunction; this being that she seeks access to what was the matrimonial home, there are children involved and finally she contributed substantially to its purchase and development.

8. It is submitted further that the Rental income be deposited into a joint account which was the situation obtaining before the separation of the Applicant and Respondent and also that the rental income be secured for the sake of both parties.

9. It is submitted in conclusion that the Court should exercise its jurisdiction in favour of the Applicants.

Respondent’s Submissions 10. The Respondent identifies the following as the issues for determination1. Whether the Respondent’s Preliminary Objection is merited2. Whether the Applicant’s chamber summons has merit

11. It is submitted that the Preliminary Objection as framed meets the conditions laid out in Mukisa Biscuit Manufacturing Co. Ltd - v- West End Distributors Ltd [1969] EA 696. It is contended that the Preliminary Objection is hinged on Section 7 of the Matrimonial Property Act.

12. The Respondent cites the decisions in The Owners of Motor Vessel “Lillian S” V Caltex Oil Kenya Limited [1989] eKLR and Samuel Kamau Macharia and Another v Kenya Commercial Bank Ltd & 2Others [2012] eKLR and urges that this Court should down its tools for want of jurisdiction.

13. It is argued that as was stated in ZSN v WNO [2019] eKLR the Court can only assume jurisdiction if it is established that there was a marriage and it has been dissolved.

14. On the substantial application it is submitted that the injunctive issues cannot issue in respective of the properties that are registered in the name of the company and the Respondent urges that the Court should be guided by the decisions in NNN v SNM [2017] eKLR and in the Case AKK VPKW [2018] eKLR.

15. On the injunctive orders it is submitted that the circumstances under which the Court may grant injunctive orders are well established and the facts in this case do not meet the conditions. It is submitted that the Applicant has not established a prima facie case, irreparable damage and balance of convenience.

16. It is submitted further that the Applicant has not laid the basis for grant of the mandatory injunction in relation to the rental income and re-entry to the matrimonial home. It is submitted that the orders sought are discretionary and equitable and the Applicant is not deserving as she has not approached the Court with clean hands.

Analysis And Determination 17. Having reviewed the Pleadings herein the Submissions filed and the relevant law, the following are the issues I discern that arise for determination1. Whether the Preliminary Objection as framed meets the legal threshold2. Whether the Chamber Application has met the legal threshold for the grant of an injunction.

18. On the 1st issue both parties have articulated very well the established principles on the prerequisites of a meritorious Preliminary Objections as set out in the celebrated decision of Mukisa Biscuits Manufacturing Ltd – v- West End Distributors (1969) EA 696 where their Lordships observed thus:“----a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”.

19. In the same case Sir Charles Newbold, P. stated:

20. “a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”.

21. The Respondent avers that the Court lacks Jurisdiction and this averment is premised on the fact that the Respondent understands that the Originating Summons is presented under Section 7 of the Matrimonial Property Act. The Applicant on the other hand argues that the Preliminary Objection is without basis as the Originating Summons is presented under Section 17 of the Matrimonial Property Act that allows for declaratory orders of the property rights.

22. I observe that the Originating Summons dated 17th July 2023 is presented under Article 45(3), Section 4, Section 6(1), 7, 17(1), 17(2)(a) of the Matrimonial Property Act.

23. The Respondent also raises issue with the Originating Summons and contends that the Originating Summons should be struck out as no existence of marriage between the Applicant and Respondent has been established or for that matter its dissolution.

24. The facts in this case are on all fours with the facts in the case of BWM v RM [2021] eKLR. In that case Onyiego J observed(26)I do agree with the defendant that pursuant to Section 7 of the matrimonial property Act, this court has no jurisdiction to make determination on issues of division of matrimonial property the subject of this suit. However, this court has jurisdiction to make a determination on the prayer for declaratory rights under matrimonial property. This aspect of the law under Section 17 of the matrimonial property Act does not necessarily require parties to first dissolve their marriage.

25. In that decision the Court observed that the issue of whether or not there was a marriage between the parties was an issue that would await the substantive hearing when the parties would adduce evidence and that therefore the Preliminary objection on that issue could not be sustained.

26. Further the Supreme Court in Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR made the following observation as relates to Preliminary Objections:“… The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”A preliminary objection can not be employed to deny a party their right to their day on Court to canvass their case and have it determined on merit.

27. I agree with the reasoning of my brother Judge as it is supported by the law and judicial precedent and proceed to dismiss the Preliminary Objection

28. On the substantive Application there are 4 sub issues to be considered1. What if any orders lie in relation to the properties that are registered in the name of the Company2. What if any orders lie in relation to the properties that are registered in the name of the joint parties3. What if any are the orders lie in relation to the properties that are registered in the sole name of the Respondent4. Should mandatory injunction issue in relation to the matrimonial home and the rental incomes.

29. What if any orders lie in relation to the properties that are registered in the name of the CompanyIt is common ground that the Applicants are Directors/ Shareholders in s-5 Holdings Limited. The Company is the registered proprietor of the following assetsa.Kajiado/ Kaputiei North/24388b.Mavoko Municipality/ Block 61 (Gimu) /754c.Mavoko Municipality/ Block 61 (Gimu) /753d.Motor Vehicle Mitsubishi Lorry Reg KAT 597 Q

30. As was held in AKK v PKW [2018] eKLR this Court has no jurisdiction to deal with the shares and properties registered in the names of the Limited Liability Company. The parties will have to canvass in the Commercial division of the high court.

31. What if any orders lie in relation to the properties that are registered in the name of the joint partiesThe following assets are registered in the joint names of the partiesa)KJD/Kaputiei North/14882b)KJD/Kaputiei North/14883 ( home)c.KJD/Kaputiei North/14884d.KJD/Kaputiei North/5675 (has rental flats)e.KJD/Kaputiei North/11373f.Ndalani/Mavoloni Block 1/668g.Mavoko Town Block 64 (Gimu) 506 (four containers shops)

32. The Applicant seeks that the Respondent be barred from selling, alienating, transferring, charging or in any way dealing in the properties. The Respondent’s response is that there is no risk of the properties being sold as they are in the joint names of the parties.

33. I agree that the principles that should guide the Court in determining whether or not to grant an interlocutory injunction are those laid out in Giella v Casman Brown & Co. Ltd [1973] EA 358 and Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR

34. Applying the facts of this case to that test, I find that the Applicant has demonstrated that she does have a recognisable interest in the assets as enumerated. Apart from the disposal she seeks injunctive orders that would prevent the Respondent from dealing with the properties in a manner that would prejudice her interest. The loss that she is likely to suffer is likely to be irreparable as apart from the monetary investment is the emotional and sentimental value she has to these assets which cannot be compensated in monetary terms.

35. An interlocutory injunction is key in maintaining the substratum of the matter. I am of the view that the balance of convenience tilts towards maintaining the status quo so as to prevent dealings in the properties pending the determination of the suit.

36. What if any are the orders that lie in relation to the properties that are registered in the sole name of the Respondent1. KJD/ Lorngosua/55702. KJD/ Kaputiei North /14884The Applicant contends that she has contributed to the acquisition and development of these assets. Again applying the test in the Nguruman Case ( Supra) she would suffer irreparable harm if the properties were disposed of, prior to the conclusion of the matter. I therefore would allow the prayers for interlocutory injunction pending the hearing and determination of this case

37. Should mandatory injunction issue in relation to the matrimonial home and the rental incomes.The parties are agreed that the property on KJD/ Kaputei North /14883 was the family home. That the Applicant lived there with the Children until June 2023. The parties are not in agreement on the circumstances that led to the departure of the Applicant and the Children from the home.

38. I have no hesitation in finding that the access by the Children to their family home constitutes exceptional circumstances that would allow a court to grant a mandatory injunction. The Respondent does not appear to object to them returning to the house but only seems to take exception to the fact that he is being held responsible for their departure from the home.

39. I find therefore that it is in the interests of justice that the Applicant and the Children be allowed exclusive possession of the family home pending the determination of the Suit. The Respondent shall vacate the house within 14 days.

40. The following assets registered in the joint names of the parties collect rental income1. KJD/ Kaputei North/56752. Mavoko Town Block 64 (Gimu)/506It is not disputed that prior to the fall out the rental income was going into a common account that both parties had access to. It is also not disputed that the pay point for the rent was changed by the respondent. It is also not disputed that there is a matter pending before the Children’s Court for the maintenance of the Children.

41. I find that the facts as set out are indeed exceptional that lend themselves to the granting of a mandatory injunction and accordingly direct that the Respondent deposit into an account to be provided by the Applicant 50 per cent of the rental income collected from the 2 assets ( Kajaido/ Kaputei North/ 5675 and Mavoko Town Block 64 ( Gimu)/ 506) on a monthly basis effective May 2024. The payment be made not later than the 15th of each successive month

42. In conclusion, the following orders are made1. The Preliminary Objection is dismissed2. The Respondent is barred from selling/ alienating, transferring, charging or in any way dealing witha)KJD/Kaputiei North/14882b)KJD/Kaputiei North/14883 ( home)c.KJD/Kaputiei North/14884d.KJD/Kaputiei North/5675 (has rental flats)e.KJD/Kaputiei North/11373f.Ndalani/Mavoloni Block 1/668g.Mavoko Town Block 64 (Gimu) 506 (four containers shops)h.KJD/ Lorngosua/5570 andi.KJD/ Kaputei North/14884Pending the hearing and determination of the Originating Summons3. The Respondent to within 14 days vacate the family home located on KJD/ Kaputei North/14883 and facilitate the re-entry into the house and exclusive possession by the Applicant and the children pending the hearing and determination of the Originating Summons.4. The Respondent to deposit into an account to be provided by the Applicant 50 per cent of the rental income collected from the 2 Assets ( Kajiado/ Kaputei North/ 5675 and Mavoko Town Block 64 ( Gimu)/ 506) on a monthly basis effective May 2024. The payment be made not later than the 15th of each successive month5. Each party will bear their own costs.6. Parties to take directions on the hearing of the Originating Summons

It is so ordered.

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 3RDDAY OF MAY, 2024. P. NYAUNDIJUDGEIn presence of: -Fardosa Court Assistant