https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11193

SWN v ENN (Matrimonial Property Cause (OS) E083 of 2025) [2026] KEHC 11193 (KLR) (Family) (21 July 2026) (Ruling) Neutral citation: [2026] KEHC 11193 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Matrimonial Property Cause (OS) E083 of 2025 CJ Kendagor, J July 21, 2026 IN THE MATTER OF SECTIONS 6, 7 AND 17 OF THE MATRIMONIAL PROPERTY ACT, 2013 Between SWN Applicant and ENN Respondent Ruling 1.S.W.N. (the Applicant) filed the Originating Summons in this suit dated 29th September, 2025 against E.N.N., (the Respondent). She is seeking a declaratory order stating that the property known as Nairobi/Block 62/444 (suit property) was acquired solely by her and therefore does not form part of matrimonial property. Additionally, she has sought injunctive orders to restrain the Respondent from interfering with her ownership, occupation, and peaceful possession of the property. She also seeks an order compelling the Respondent to account for the rental income received from the property and to refund that amount from July, 2023 to the date of the order. In her supporting affidavit, the Applicant states that she and the Respondent have been married since 1980. 2.The Respondent filed a Replying Affidavit dated 18th December, 2025 in which he opposes the Originating Summons. The suit is pending a pre-trial conference, which has yet to be conducted, as two interlocutory applications have been filed and are the subject of this present ruling. 3.The Applicant filed the Notice of Motion application dated 29th September, 2025 and the Respondent filed the Notice of Motion application dated 8th December, 2025. 4.In the application dated 29th September, 2025 the Applicant seeks the following orders;i.That this Application be certified as urgent and heard ex parte in the first instance, and service be dispensed with in the first instance due to the urgency and risk of irreparable harm;ii.That pending the hearing and determination of this Application inter partes, this honourable court be pleased to issue a temporary injunction restraining the respondent, either by themselves, their servants, agents, employees, or any other person acting under their authority, from trespassing upon, interfering with, alienating, wasting, selling, disposing of, harassing, threatening, or in any other way dealing with the applicant’s peaceful occupation and possession of all that parcel of land known as Nairobi/Block 62/444;iii.That pending the hearing and determination of the suit, the honourable court be pleased to direct the tenants occupying the premises erected on Nairobi/Block 62/444 to deposit all rents due and payable in respect of the said property into the applicant’s designated bank account, or in the alternative, into a joint interest-earning account held in the names of the parties’ respective advocates, or in court, for preservation pending determination of ownership;iv.That upon hearing and determination of the main suit, this honourable court be pleased to issue a declaration that the applicant is the lawful registered and beneficial owner of the parcel of land known as Nairobi/Block 62/444, and that the same does not form part of any matrimonial property or matrimonial estate subject to division;v.That upon hearing and determination of the main suit, this honourable court be pleased to issue an order of specific performance compelling the Tenants of Nairobi/Block 62/444 to remit all rental payments directly into the applicant’s bank account as the lawful landlord and proprietor;vi.That upon final determination of the suit, this honourable court be pleased to issue a permanent injnction restraining the respondents, their agents, employees, servants or any other person acting on their behalf from evicting, harassing, threatening, dispossessing or in any manner whatsoever interfering with the applicant’s proprietary interest, possession, and quiet enjoyment of Nairobi/Block 62/444, or with the tenancy arrangements in place on the said parcel of land;vii.That upon the hearing and determination of the application herein, honourable court be pleased to issue an order directing the Officer Commanding Station (OCS), Lang’ata Police Station, to provide assistance in enforcing and effectuating the court orders upon the tenants occupying the property known as Nairobi/Block 62/444, for purposes of implementing the said orders;viii.That this honourable court be at liberty to issue such other or further orders as may be just and expedient in the circumstances of this case;ix.That costs of this application be provided for. 5.From the record, the Respondent did not file a response to this application. The Affidavit on record after the filing of the application is the Replying Affidavit (dated 18th December, 2025) in response to the Originating Summons. At the attendance on 4th March, 2026 the Respondent confirmed compliance with the filing of a response to the O.S only. He filed submissions dated 19th December, 2025 stating that they are in opposition to the O.S together with the Notice of Motion application. 6.In the application dated 8th December, 2025 the Respondent seeks the following orders;The Managing Director of the National Housing Corporation (NHC), or his/her authorized officer, be and is hereby Compelled to produce to this honourable court certified copies of ALL documents in its custody relating to the sale, purchase, lease, allotment, financial repayment history, loan application, transfer and registration of the property known as Nairobi/Block/62/444 – HOUSE NO. J-40, Ayany Estate. Particularly:-a.That a copy of the original Banker’s Order from National Bank of Kenya (NBK), Harambee Avenue Branch, signed in favour of the applicant/respondent relating to repayment of the loan for Nairobi/Block/62/444;b.That a copy of the applicant’s covering letter forwarding the above Banker’s Order to National Housing Corporation (NHC), instructing that from the date of the Banker’s Order, the respondent was to be responsible for repayment of the loan;c.That a complete statement of account, payment schedule, repayment card and loan repayment history relating to the suit property, including: All instalments received; The names under which receipts were issued; Any changes in repayment instructions; Any re-allocation or substitution of payer; Any correspondence between NHC and the applicant regarding the repayment. d.That certified copies of the allotment letter, letter of offer, lease documents, payment receipts, ownership documents, file records and any letters exchanged between the applicant and NHC concerning the suit property;e.That any additional files, records or documents relating to the contractual dealings between NHC and the applicant concerning Nairobi/Block/62/444;f.That National Housing Corporation (NHC) be compelled to produce the said documents within 14 days, failure to which the Managing Director personally appears in court to explain the non-compliance;g.That the costs of this application be provided for. 7.The Applicant responded to this application via a Replying Affidavit dated 29th January, 2026. The Respondent also filed a Supplementary Affidavit dated 23rd February, 2026, which the Applicant contends was filed without leave. This shall be addressed at the determination of the said application. 8.Both parties filed submissions to the two applications. The Applicant’s case 9.The Applicant contends that she is the registered and beneficial owner of the suit property, having purchased the same from the National Housing Corporation (NHC) in 1977, and argues that the Respondent has never contributed financially or otherwise to the acquisition, improvement and maintenance of the property. 10.The Applicant further contends that she constructed rental stalls in 2023, which the Respondent has taken control of, barred the tenants from remitting rental income to her, and denied her physical access to the property. According to the Applicant, the Respondent forcibly seized possession of the property on the allegation that the Applicant borrowed Kshs.1 million from their grandchildren’s trust. 11.She asserts that the Respondent’s actions have subjected her to distress and an imminent risk of deprivation of the property, and she asks the Court for injunctive relief, arguing that she has met the threshold for its grant. 12.With regard to the application for discovery, the Applicant argues that the Respondent intends to further alienate her from the property, despite not having contributed to its acquisition or improvement. 13.She stated that the Respondent had previously written to NHC and received a response indicating that the Applicant had solely applied for the house and had been allocated to her. 14.The Applicant further contended that the Respondent is using the application as a fishing expedition and argued that the Respondent has not exhausted the available mechanisms provided under Order 11 of the Civil Procedure Rules and Section 14 of the Access to Information Act. The Respondent’s case 15.The Respondent, as stated, did not file a response to the Notice of Motion dated 29th September, 2025. 16.In the application dated 8th December, 2025, the Respondent argues that the NHC hold the records concerning the ownership, contribution, history and development of the suit property. 17.He argues that the Applicant has refused to produce the documents despite multiple demands, thereby withholding the historical financial and contractual information concerning the suit property. 18.He annexed correspondence from NHC indicating that it can only release the documents with the consent of the Applicant or a court order. 19.The Respondent further contends that the Applicant is re-litigating issues already addressed in multiple proceedings: MC ELC E148 of 2024, MC FOS E017 of 2025 and HC FOS E076 of 2024. Analysis and determination 20.I have considered the applications, the affidavits filed by the parties and submissions, I find the following to be the issues for determination;i.Whether the present proceedings constitute an abuse of the court process by forum shopping and multiplicity of suits;ii.Whether the Applicant has met the threshold for the granting of the interlocutory reliefs sought in the application dated 23rd September, 2025;iii.Whether the Supplementary Affidavit dated 23rd February, 2026 should be admitted;iv.Whether the Court should compel NHC to produce the documents in its possession relating to the property;v.Who should bear the costs of the applications. Whether the present proceedings constitute an abuse of the court process by forum shopping and multiplicity of suits; 21.I have looked at the previous proceedings between the parties and found that there was none where the matter went to a hearing and determination. In Magistrates Court ELC E148 of 2024, the case was struck out after the trial Court upheld a preliminary objection and held that the suit fell within the ambit of the Matrimonial Property Act. In Magistrates Court FOS E017 of 2025, the case was withdrawn to enable filing in the High Court; similarly, High Court OS E076 of 2024 was struck out after a Preliminary Objection was filed. 22.Based on the findings, it is clear that the relationship between the parties concerning the subject property is the main dispute. Whether the property constitutes matrimonial property and the question of contribution are matters for determination after the hearing of the suit. None of the above cases progressed to the hearing stage. The issue has not been fully litigated in the other cases, contrary to the Respondent’s assertion. The orders that closed these prior cases certainly don’t indicate any forum shopping either. Rather, a pursuit of the substantive issues to be heard and determined. Given that there has been no prior adjudication on the substantive issues, there is no evidence that the Applicant is abusing the court process. 23.The Respondent has further challenged the process by which the claim is presented. I am, however, satisfied that the claim initiated through an Originating Summons accompanied by a Supporting Affidavit is in accordance with the established procedure outlined in Rule 7 of the Matrimonial Property Rules. Rule 24, as discussed later in this ruling, authorizes the Court to issue directions on whether the case should proceed as if it were initiated by filing a plaint. Such directions are yet to be taken. Whether the Applicant has met the threshold for the granting of the interlocutory reliefs; 24.I have reviewed the prayers in the application dated 29th September, 2025. Prayer 4 seeks a declaration that the property is not matrimonial property; Prayer 5 seeks an order for specific performance and a finding that the Applicant is the landlord and proprietor; and Prayer 6 seeks a permanent injunction. The nature of these reliefs amounts to the issuance of final orders prior to the hearing of the Originating Summons. As such, these prayers cannot be accommodated at this preliminary stage and are consequently denied. 25.This leaves the prayers for determination to be prayers 2, 3 and 7, which seek interlocutory orders. The Court may also grant any other orders that may be just and expedient in the circumstances of the case. 26.Rule 20 (2) of the Matrimonial Property Rules provides as follows;“A party to the proceedings may, before or after commencement of the proceedings under these Rules, but before the final determination of the respective claims, apply for temporary injunctions or other interlocutory orders in accordance with Order 40 of the Civil Procedure Rules, 2010, and the court may grant the orders sought on such terms or conditions as may be just in the circumstances.” 27.The Applicant has asked for interim orders restraining the Respondent from trespassing, alienating the property and interfering with her peaceful possession of the property. 28.The principles for issuance of interlocutory injunctions were set out in the case of Giella versus Cassman Brown and Company Ltd. [1973 E.A. 358 where it was held that:-i.An applicant must show a prima facie case with a probability of success.ii.An injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury.iii.When the court is in doubt, it will decide the application on the balance of convenience. 29.The evidence currently available indicates that the property is registered solely in the name of the Applicant. Based on the documentation submitted so far, particularly the NHC letter on allotment and payment and the lease certificate issued exclusively in the Applicant’s name, the Applicant has established a prima facie case. 30.The Applicant has further sufficiently established that she faces irreparable harm if the Respondent continues to have exclusive control over the property. The situation presented is that this control will result in the Applicant losing the rental income from the property registered in her name, yet the Respondent’s claims of rights and interests in the property are contested. The Applicant is also apprehensive about the Respondent’s actions regarding the property, as he is in control of it to her exclusion. 31.Both parties assert rights to the property and these factual disputes can only be determined after a trial. After careful consideration of the facts presented in this matter, I find that securing the property and the rental income associated with it pending the hearing and determination of this suit is in the best interests of both parties. The parties are hereby restrained from selling, encumbering, or otherwise adversely dealing with the property. 32.Having established a prima facie case, pending the hearing and determination of the suit, the Applicant is hereby granted unrestricted access to the property. The Respondent is restrained from engaging in harassment, threats, or any form of interference with the Applicant’s peaceful occupation of the property. 33.I also believe it is in both parties’ best interests that the rental income be deposited into a joint interest earning account held in the names of the counsel representing them. Whether the Replying Affidavit dated 29th January, 2026 and the Supplementary Affidavit dated 23rd February, 2026 should be admitted; 34.Coming to the second application, before considering the merits of the same, an issue arose concerning two affidavits. 35.The Respondent contends that the Replying Affidavit dated 29th January, 2026 was filed out of time. The Applicant, on the other hand, contends that filing and service were on 26th December, 2025 and, being the festive season, its offices were closed and actioned when they opened. 36.Under Order 50, Rule 4 of the Civil Procedure Rules, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time for the amending, filing or delivery of any pleading or the doing of any other act. 37.With the above computation, the directions having indicated that filing be within 15 days, the Replying Affidavit ought to have been filed on 29th January, 2026. The Replying Affidavit was therefore filed within time. 38.With regard to the Supplementary Affidavit dated 23rd February, 2026 the Applicant asked the court to strike it out, as it was filed without leave. 39.Order 51 Rule 14 (3) of the Civil Procedure Rules provides:-“Any applicant upon whom a Replying Affidavit or Statement of Grounds of Opposition has been served under subrule (1) may, with the leave of the court, file a Supplementary Affidavit.” 40.The record shows that no leave was sought by the Respondent to file the Supplementary Affidavit. In the Court of Appeal case, Kiru Tea Factory Company Ltd vs Stephen Maina Githiga & 13 Others [2019] eKLR , the Court of Appeal stated that further Affidavits filed without leave of the Court ought to be struck out. 41.That befalls the Supplementary Affidavit dated 23rd February, 2026. It is struck out. Whether the Court should compel NHC to produce the documents in its possession relating to the property; 42.The Respondent asks that the Managing Director of NHC be compelled to produce certified copies of all documents in its custody relating to the sale, purchase, lease, allotment, financial repayment history, loan application, transfer and/or registration of the property. His application is not anchored on any law on the face of it. 43.In his submissions, he invokes Article 35 of the Constitution, Section 170 of the Evidence Act, Order 11 Rule 3 (2) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. He has also invoked Section 5 of the Access to Information Act. 44.The Applicant contends that the orders cannot be issued against NHC, which is not a party to the suit. She also argues that the application has been brought in bad faith, as NHC had already informed the Respondent that its records show that the Applicant applied for the house allocated to her. 45.Although the application indicates that service of the application will be made upon NHC, NHC was not onboarded as a Respondent to the Application. 46.From the listed documents, this court is of the view that the records in the custody of the National Housing Corporation (NHC) are relevant to the suit. However, this matter is still pending pre-trial, and directions have not been taken on how the matter will proceed as provided for under Rule 24 of the Matrimonial Property Rules. 47.Rule 24 provides for the application of Order 37, Rules 16 to 19 of the Civil Procedure Rules (sub. leg) and states as follows.;“Where a summons is filed pursuant to rule 5 (1) (a) or (c), Order 37 Rules 16 to 19, both inclusive, of the Civil Procedure Rules (sub. leg), shall apply with respect, but not limited, to(a)directions by a judge or magistrate;(b)procedure for appearance and attendance before a judge or magistrate;(c)evidence and directions upon hearing of summons; and(d)powers of court upon hearing of summons.” 48.Order 37 provides for suits initiated by way of Originating Summons. Rules 16 – 19 as stated in the Matrimonial Property Rules apply to directions that the Court may issue as to the hearing of the Originating Summons. 49.Rule 19 (1) provides that if the court determines that the case should proceed as if it had been initiated by filing a plaint, it can order the proceedings to continue accordingly. This includes the possibility of treating affidavits filed as pleadings. When such an order is issued under sub-rule (1), Order 11 will also be applicable. 50.Order 11 provides for pre-trial directions and conferences. Rule 3 (2) provides as follows;In addition to any other general power the court may at the case conference—a.deal with any interlocutory applications or create a suitable timetable for their expeditious disposal;b.order the filing and service of any necessary particulars within a specific period;c.order admission of statements without calling of the makers as witnesses where appropriate and the production of any copy of a statement where the original is unavailable;d.order the giving of evidence on the basis of affidavit evidence or give orders for discovery or production or inspection or interrogatories which may be appropriate to the case; ……… 51.The Court is alive to the power conferred under Section 22 of the Civil Procedure Act to order discovery and the like. I have pondered the insistence on the strict observance of the rule of procedure that directions must be taken before Order 11 can be invoked where an Originating Summons is filed under the Matrimonial Property Act and its Rules, but I am persuaded that the call for compliance does not undermine the cause of justice. 52.In this case, the affidavits contain highly contested facts; consideration of discovery directly influences the evidence supporting each party’s claims. 53.I conclude therefore that as the directions under Rule 24 have not been taken in the Originating Summons, the Respondent’s application dated 8th December, 2025 is premature and is struck out. Disposition; 54.The orders issued with regard to the application dated 29th September, 2025 are as follows;i.Pending the hearing and determination of the suit, the parties are hereby restrained from selling, encumbering, or otherwise adversely dealing with the property.;ii.Pending the hearing and determination of the suit, the Applicant is hereby granted unrestricted access to the property;iii.Pending the hearing and determination of the suit, the Respondent is restrained from engaging in harassment, threats, or any form of interference with the Applicant’s peaceful occupation of the property;iv.Pending the hearing and determination of the suit, the rental income from the property shall be deposited into a joint interest earning account held in the names of the counsel representing them; 55.The application dated 8th December, 2025 is struck out. 56.Costs of the two applications shall abide by the outcome of the suit. 57.The matter shall be set down for directions. 58.Orders accordingly. DATED, DELIVERED AND SIGNED AT Nairobi THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 21ST DAY OF JULY, 2026.……………………..C. KENDAGORJUDGEIn the presence of:Court Asssistant: Beryl