[2011] KEHC 2055 (KLR)
The court found that the applicant had established a prima facie case for the grant of a temporary injunction. The evidence showed that the property was acquired during the marriage and, despite being registered in the respondent's name, there is a rebuttable presumption of joint acquisition. The respondent's...
Source-derived case information.
- Citation
- [2011] KEHC 2055 (KLR)
- Parties
- Applicant: Teresia Mabuti Njagi; Respondent: Njagara Ngure
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 49 of 2011
- Procedural Posture
- Originating Summons / Ruling on Interlocutory Injunction
- Outcome
- application for temporary injunction allowed
- Judges
- AO Muchelule
- Legal Topics
- Matrimonial Property, Injunctive Relief, Customary Marriage, Joint Ownership, Property Distribution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresia Mabuti Njagi
Applicant
Njagara Ngure
Respondent
Procedural Posture
Originating Summons / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondent from alienating or disposing of the matrimonial property pending determination of the suit.
- 2 Whether the property in question was jointly acquired during the marriage and subject to equal distribution.
Ratio Decidendi
The court found that the applicant had established a prima facie case for the grant of a temporary injunction. The evidence showed that the property was acquired during the marriage and, despite being registered in the respondent's name, there is a rebuttable presumption of joint acquisition. The respondent's admission of subdividing the property raised a real risk that the applicant's interests could be prejudiced if the property were alienated before the suit's determination. Applying the principles in Giella vs Cassman Brown, the court held that the applicant would suffer irreparable loss if the injunction was not granted, as the property could be placed beyond her reach. The court...
Court Disposition
application for temporary injunction allowed
Orders
- A temporary injunction is granted restraining the respondent from alienating or disposing of the suit property until the originating summons is heard and determined.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL CASE NO. 49 OF 2011
TERESIA MABUTI NJAGI…………….….……………. APPLICANT
VERSUS
NJAGARA NGURE………………….……..……………RESPONDENT
R U L I N G
In CMCC [......] at Embu, the present Applicant is seeking to divorce the Respondent on grounds of cruelty and neglect of responsibility. The couple got married in 1965 under Kikuyu customary law and were blessed with 8 children who are adults. The Applicant alleged that the couple was living peacefully until 2008 when the Respondent took a second wife and started mistreating her. The Respondent filed a defence in which he equally sought that the marriage be resolved. He pleaded that it was the Applicant who deserted the matrimonial home on 19th December 2002 subsequent to which he married in 2003. The cause is pending.
In the present suit brought by way of originating summons the Applicant claims that during the marriage they jointly contributed to the purchase of land parcels GATURI/GITHIMU/1235 and NTHAWA/RIANDU/834 which were however registered in the names of the Respondent. She seeks that the property be sold and/or be distributed in equal shares between them. In the meantime, she has filed the present application under Order 40 rules 1, 2 and 3 of the Civil Procedure Rules seeking a temporary injunction to restrain the Respondent from alienating or disposing the property until the summons is heard and determined. She is represented by Mr. Ombachi and alleged that the Respondent has subdivided the property with the intention of disposing it.
The Respondent filed a replying affidavit to the application in which he now says he does not wish to divorce the Applicant, but that he will be seeking to amend his defence in the divorce cause to challenge the divorce. It is evident that the Respondent is blowing both cold and hot. He denies that the property in question was jointly acquired. He admits that he has subdivided the parcels but says his intention was to give the respective portions to the Applicant’s children. He denies that he wishes to sell or dispose the property.
The Applicant and Respondent are estranged and there is dispute about the property. The Applicant has shown that the Respondent has subdivided it. It does not appear to be in dispute that the property was acquired during the subsistence of the marriage. I am aware that Sections 27 and 28 of the Registered Land Act (Cap 300) protect the Respondent’s proprietorship. He can ideally deal with the property as he wishes. However, there is a rebuttable presumption of fact that where property is bought during the subsistence of a marriage and is registered in the name of one spouse it is deemed to have been bought with joint funds. (COSMAS K. MUTHEMBWA VS EUNICE KYALO MUTHEMBWA [2002] IEA 186 . The Applicant says that this is such property.
I consider the principles in GIELLA VS CASSMAN BROWN & CO. LIMITED [1973] EA 358and find that on the material placed on record the Applicant has demonstrated a prima facie case. If the injunction sought is not granted the property in question may be placed beyond the reach of the Applicant and that may occasion her irreparable loss. I allow the application but ask that costs be in the cause.
DATED, DELIVERED AND SIGNED AT EMBU 28TH DAY OF JULY 2011.
A.O. MUCHELULE
JUDGE