[2022] KEHC 16760 (KLR)

SNM v PKK (Civil Suit E050 of 2022) [2022] KEHC 16760 (KLR) (Family) (7 November 2022) (Ruling)

Neutral citation: [2022] KEHC 16760 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Suit E050 of 2022

EKO Ogola, J

November 7, 2022

IN THE MATTER OF THE MATRIMONIAL PROPERTY ACT 2013

Between

SNM

Applicant

and

PKK

Respondent

Ruling

The Application 1. Before the court is a notice of motion application dated July 13, 2022 brought under a certificate of urgency of the same date. The application prays for the following orders:1. Spent2. Spent3. That pending the hearing and determination of this suit, a temporary injunction do issue restraining the respondent, his servants and/or agents from alienating and/or otherwise selling, transferring, interfering, or wasting of the properties namely: -a.The respondent’s share of LR No xxx/xx in Ruirub.Nairobi/Umoja Block xxx/xxx/xxc.Karen Hardy LR No xxxx/xxxxd.Apartment Nxx Ngara CHSe.Plots in Thika town xxxx/xxxx, xxxx/xxxx, xxxx/xxxx, xxxx/xxxxf.Land in Nanyuki LR xxxx/xxg.Land in Ruaka townh.House in Maua town, Rwongonei.Land in Igembe Centralj.Plot in Nanyuki townk.Laikipia Daiga Ethi Block x/xxxl.Laikipia Daiga/Umande Block x/Nyariginu/xxxm.Laikipia/Nanyuki West Timau Block x/xx & x/xxn.Apartment in Washington DC xxxx Metzerott Road, Unit xxxHyattsvile MD xxxxxo.Assorted plots in Maua townp.Land in Rumurutiq.Toyota Prado Kxx xxxNr.Toyota Prado Kxx xxxNs.Toyota Prado Kxx xxxN4. That pending the hearing and determination of this suit, the respondent and/or his servants or agents be restrained from interfering with the applicant’s collection of rent from Nairobi/Umoja Block/xxx/xxx/xxx and apartment Nxx Ngara5. That this honorable court be pleased to make such order or further orders as may be appropriate to meet the ends of justice.

2. The application is premised upon order 40 rules 1,2 and 3 of the Civil Procedure Rules; s 3A of the Civil Procedure Act; sections 2, 6, 9, 12, 14 and 17 of the Matrimonial Property Act 2013; and all other enabling provisions of the law. It is based on the grounds set out therein and is supported by the affidavit of SNM sworn on November 13, 2020 on behalf of the applicant.

3. The applicant’s case is that she got married to the respondent under a customary marriage in 2005. They have two children. They lived together from 2005 to 2020. They divorced and were issued with a decree absolute on January 14, 2022. That during the pendency of the said marriage they acquired the properties listed at paragraph 1 (3) with the respondent. The applicant claims to have contributed to the matrimonial properties both financially and non-financially thus entitled to equal share of the same.

4. The applicant avers that some of the properties were acquired by both parties but registered in the names of the respondent or in the names of the companies under the respondent’s control. This was on understanding that the respondent held them in trust for her. The applicant fears that the respondent will alienate the properties and therefore she seeks preservation of the same.

5. The respondent was served with the application and notice of hearing but he did not file any response.

6. The applicant was heard on October 18, 2022. The parties did not file any submissions. The applicant relied on the supporting affidavit. The court had granted interim orders of temporary injunction pending the delivery of this ruling.

Determination 7. I have carefully considered the application before me. The issue arising for determination is whether the temporary injunction sought should be granted

8. The law under order 40 (1) of the Civil Procedure Rules, 2010 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.

9. It is now settled that a party seeking injunctive orders has to establish that he has a prima facie case with a probability of success; that if the orders sought are not granted he or she will suffer irreparable loss which would not be adequately compensated by an award of damages and if the court is in doubt it will decide the case on balance of convenience. This was well established inGiella v Cassman Brown Ltd E A 1973 pg 358.

10. The Court of Appeal in Mrao Ltd V First American Bank of Kenya Ltd & 2others (2003) KLR 125 considered what constitutes a prima facie case and held that:“In civil cases, a prima facie case is a case in which on the material presented to the court, a tribunal properly 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. That is clearly a standard, which is higher than an arguable case.We adopt that definition save to add the following conditions by way of explaining it. The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title. It is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.” (mine emphasis)

11. The applicant’s case is founded on the fact that the property in question is matrimonial property and she fears that the respondent might alienate the properties. Considering that the parties are separated and living separately, the properties could be sold without the knowledge of the applicant. If the said properties are sold without her knowledge and it turns out that the properties form part of the matrimonial property, then the applicant would have suffered substantial loss.

12. There is therefore need to protect the properties as prayed by the applicant pending the hearing and determination of the main suit. The court accordingly makes the following orders.i.The respondent, his servants and/or agents hereby restrained from alienating and/or otherwise selling, transferring or wasting the properties outlined below pending the hearing and determination of this suit.a.The respondent’s share of LR No xxxx/xx in Ruirub.Nairobi/Umoja Block xxx/xxx/xxc.Karen Hardy LR No xxxx/xxxxd.Apartment Nxx Ngara xxxe.Plots in Thika town xxxx/xxxx, xxxx/xxxx, xxxx/xxxx, xxxx/xxxxf.Land in Nanyuki LR xxxx/xxg.Land in Ruaka townh.House in Maua town, Rwongonei.Land in Igembe Centralj.Plot in Nanyuki townk.Laikipia Daiga Ethi Block x/xxxl.Laikipia Daiga/Umande Block x/Nyariginu/xxxm.Laikipia/Nanyuki West Timau Block x/xx & x/xxn.Apartment in Washington DC xxxx Metzerott Road, Unit xxxx Hyattsvile MD xxxxo.Assorted plots in Maua townp.Land in Rumurutiq.Toyota Prado Kxx xxxNr.Toyota Prado Kxx xxxNs.Toyota Prado Kxx xxxNii.The respondent and/or his servants or agents are hereby restrained from interfering with the applicant’s collection of rent from Nairobi/Umoja Block/109/544/699 and apartment N13 Ngara pending the hearing and determination of this suit.

13. Orders accordingly. Costs shall be in the cause.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 7TH DAY OF NOVEMBER 2022. E.K. OGOLAJUDGEJudgment delivered in the presence of:M/s. Kiarie h/b for Judy Thongori for the ApplicantN/A for the RespondentMs. Gisiele Court Assistant