[2022] KEHC 15467 (KLR)

SNW v PMW (Matrimonial Cause E001 of 2022) [2022] KEHC 15467 (KLR) (6 September 2022) (Ruling)

Neutral citation: [2022] KEHC 15467 (KLR)

Republic of Kenya

In the High Court at Garsen

Matrimonial Cause E001 of 2022

SM Githinji, J

September 6, 2022

Between

SNW

Applicant

and

PMW

Respondent

Ruling

1. For determination is the Applicant’s Notice of Motion dated March 15, 2022 seeking the following orders;1. Spent.2. That the Respondent by himself or through proxies be restrained from interfering with the Applicant’s stay on the Matrimonial home standing on land known as Lamu/Lake Kenyatta/I/4XXX pending the hearing and determination of this application inter parties.3. That upon inter parties hearing, this honourable court be pleased to issue a temporary injunction restraining the Respondent by himself or through proxies from interfering with the Applicant’s stay on the Matrimonial home standing on land known as Lamu/Lake Kenyatta/I/4XXX pending the hearing and determination of the suit filed herein.4. That the OCS Mpeketoni Police Station be directed to ensure compliance with the orders herein.5. That costs of this application be provided for.

2. The application is anchored on the sworn affidavit of SNW the applicant who deposed that she was married to the respondent from the year 2009 until the year 2021 when they were divorced vide Mpeketoni divorce cause No. 1 of 2021. That the marriage was blessed with two issues both minors.

3. She stated that during the marriage, they managed to acquire two properties namely; Lamu/Lake Kenyatta 1/4079 (1/2 an acre) and Lamu/ Lake Kenyatta 1/4XXX with a storey building comprising of three bedroomed house on the ground floor and an unfinished 1st floor.

4. Ms. SN further stated that the sale and purchase agreements of the said parcels were made with her authority in the name of the Respondent though she made substantial monetary and non-monetary contributions towards their purchase.

5. It was further stated that the property known as Lamu/Lake Kenyatta 1/4XXX is where the matrimonial house is constructed and it is where they have lived until the respondent deserted them, and they continued living there with the two minors even after desertion.

6. She deposed that on March 13, 2022, the respondent got back and threw them out of the house and completely denied them access and entry. That though she tried to seek assistance from Mpeketoni Police Station all efforts were futile and she had to seek refuge from relatives where she is still staying to date.

7. She further stated that she is entitled to a share of the matrimonial property having contributed towards it’s purchase and that the respondent’s actions are illegal and unjustified bearing in mind that the minors are adversely affected.

8. The Respondent filed a replying affidavit dated March 31, 2022 stating that the applicant has never contributed towards the acquisition of the afore stated properties either financially or otherwise as she was fully dependent on him for financial provision as she was never in employment during the course of their marriage.

9. He also stated that the property known as Lamu/Lake Kenyatta is not a matrimonial property as the same is jointly owned by one Reuben Wanjohi Macharia and himself in equal shares. Further that the Applicant has not exhibited any financial record to prove her contribution towards acquisition of the said property.

10. It was further stated that it is untrue that he has not been living in his house as he only left in April 2020 when the Applicant became violent rendering his stay untenable, save for that after completion of the divorce he could no longer afford to live in rented house and he returned back to the house though he did not chase them away.

Analysis and Determination 11. I have looked at the pleadings and submissions by both parties and the issue for determination is whether the Applicant is entitled to the relief of the interlocutory injunction sought.

12. The principles on issuance of interlocutory injunctions are well expounded in GiellavCassman Brown & Co. Ltd 1973 E.A 360, Mrao v First American Bank of Kenya Ltd and 2 others 2003 KLR 125. The principles are; -a.An applicant must show a prima facie case with a probability of success.b.In an interlocutory injunction the applicant must show that unless the injunctive orders are granted he will suffer irreparable harm which would not be adequately compensated for by damages.c.And if in doubt with any of the above conditions, the Court decides on a balance of convenience.

13. I am further guided by the decision by Lord Diplock In re Siskena 1977 ALL E.R at page 82 where he held;“a right to obtain an interlocutory injunction is not a cause of action and cannot stand on its own. It is dependent on their being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him of a legal or equitable right of the Plaintiff for the enforcement of which the defendant is amenable to the jurisdiction of the Court. The right to obtain interlocutory injunction is Merdy ancillary and incidental to the pre-existing cause of action. It is granted to preserve the status quo pending the ascertainment by the Court of the rights of the parties and the grant to the plaintiff of the relief to which is his cause of action entitles him which may or may not include a final injunction.”

14. From the pleadings, the Applicant claims to have made monetary and non-monetary contributions towards purchase of the matrimonial property. She did not file any documents to demonstrate the said contribution. On the other hand, the Respondent filed bank statements in support of both the purchase and development of the matrimonial home. Parties are bound by their pleadings. In my view, the balance of convenience favours the Respondent.

15. The Upshot is that the Applicant’s Notice of Motion fails and is dismissed with no orders as to costs.It is so ordered.

READ, SIGNED AND DELIVERED VIRTUALLY AT GARSEN IN THE ABSENCE OF THE PARTIES THIS 6TH DAY OF SEPTEMBER, 2022. ...................................S.M. GITHINJIJUDGEIn the Presence of;-1. Mr Omwancha holding brief for Mr Soita for the Respondent