[2023] KEHC 24904 (KLR)

TFM v NM & another (Matrimonial Cause E041 of 2023) [2023] KEHC 24904 (KLR) (Family) (13 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24904 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Matrimonial Cause E041 of 2023

PM Nyaundi, J

October 13, 2023

Between

TFM

Applicant

and

NM

1st Respondent

I&M Bank Limited

2nd Respondent

Ruling

1. The Application for determination is Notice of Motion presented under Order 51 Rules (1), (3) and (4) of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, Article 29 and 159 (2) of the Constitution seeking the following orders: -1. Spent2. That prohibitory order do issue barring I&M Bank from exercising its statutory power of sale as per notice issued on 24th February 2023 against the charged property, Land Reference Number xxxx/xxx (xxxx/xx/xxxx) together with the building sitting on the land, the building’s fixtures, fitting, additions and improvements from time to time forming part of the house and its surrounding pending the hearing and determination of this application and originating summons dated and filed on 15th May 2023. 3.That a declaration be made that property known as Giraffe View Estate In Karen Nairobi being Land Reference Number xxxx/xxx ( xxxx/xx/xx) together with the building sitting on the land , the building its fixtures and improvements from time to time forming part of the house and its surrounding is Matrimonial Property and that neither party including their agents, servants or any other person claiming any right whatsoever cannot sell, charge or dispose of the same in whatsoever manner until the hearing and determination of the main suit and/ or further orders issued by the Honourable Court.4. That a declaration do issue, of the Applicant’s right to and proportionality in distribution of matrimonial property Giraffe View Estate In Karen, Nairobi being land reference Number xxxx/xxx (xxxx/xx/xx) together with the building sitting on the land, the building its fixtures and improvements from time to time forming part of the house and its surrounding.

2. The application is supported by the affidavit of the Applicant, TFM sworn on 12/5/2023 and Response to Replying Affidavit Sworn on 26th June 2023.

3. Important to point out that subsequent to the Application the Applicant also filed an Application dated 17th May 2023 in which they sought that the Application be certified as Urgent and that interim orders be granted to preserve the subject matter. The Application substantially a replica of the Application dated 12th May 2023 and was filed with the intent of securing interim orders that were not granted the initial time the matter appeared before the Hon Lady Justice Maureen Odero.

4. The Application is opposed by the First Respondent by Affidavit sworn on the 22nd June 2023. In his Response the Applicant refers to the Application dated 17th May 2023. For tidiness of record, I clarify that the Application for determination is that dated 12th May 2023 which was rehashed by the Applicant on 17th May 2023.

Summary 5. The Applicant and 1st Respondent are divorced. The Application is presented to preserve the subject property pending the hearing and determination of the Originating Summons dated 12th May 2023 in which the Applicant seeks inter alia a determination of her interest in the matrimonial property and orders barring I&M Bank, the 2nd Respondent from exercising its statutory Notice of Sale and barring the 1st Respondent from disposing of the property from selling the subject land prior to the determination of the suit.

6. It is common ground that during the pendency of the marriage the Parties resided in the subject property as their matrimonial home. What is in dispute is their respective contributions towards its purchase and development.

7. It is also agreed that the 1st respondent obtained a credit facility from the 1st respondent and offered as security the subject property. It is also not disputed that the Applicant gave her consent as Spouse to this transaction. Parties are also agreed that owing to challenge in financing the loan the Bank has issued statutory notice of sale.

8. The Court directed that the Application proceed by way of written submissions. The Applicants submissions are dated 12th May 2023 and filed on 3rd July 2023. While those of the Respondent are dated 10th July 2023 and filed on 11th July 2023.

Analysis and Determination 9. I have carefully considered the submissions filed alongside the authorities cited and discern the following as the issues for determinationa.Whether a prohibitory order should issue barring I & M Bank from exercising its statutory power of Saleb.Whether the 1st Respondent should be barred from selling, charging or disposing of the subject property pending the hearing and determination of the main suitc.Who should bear the costs of this suit

10. On the 1st Issue the facts in the instant case are almost on all fours with those in Housing Finance Company of Kenya Limited vs FWK & another [1998] eKLR where on the question as to whether a chargee would be barred from exercising their statutory power of sale the Court of Appeal pronounced itself as hereunderNow the matters in dispute in the suit in the superior court are clearly between the husband and wife. These disputes have nothing to do with HFCK who is merely the chargee whose interest simply is to realize the loan. We see no basis whatsoever, in this case, upon which HFCK could be implanted in the proceedings. Clearly the wife seeks to obtain more time by virtue of the application so that HFCK may postpone the inevitable sale of the property and so far she has succeeded in doing so.Any suit filed by the wife under Section 17 of the Married Women's Property Act of 1882 of England is for a speedy resolution of the issue of what share, if any, the wife is entitled to in the matrimonial property; that issue can be of no concern to the chargee.The application which was before the superior court, in the circumstances of the case, was really an abuse of the process of the court. The relevant circumstances are that the wife knew that the property was charged to HFCK; that she had herself paid some of the instalment; that arrears had mounted up giving rise to the right of HFCK to exercise the statutory power of sale; that the wife knew of the arrears.Despite all these undisputed facts the learned judge not only ordered HFCK'S joinder as a defendant in the suit but proceeded to grant an injunction restraining HFCK from selling the property pending the hearing and determination of the suit on the premise that the wife had a prima facie case with a probability of success. The wife probably has a case with probability of success against her husband; she has no cause of action at all against the appellant. (Emphasis Supplied)

11. Justice Onyiego was of a similar view in Hamida Sadiq Valomohamed (Suing as the Personal Representative of the Estate of Shabbier Sidik Omar (Deceased) v Gulf African Bank Limited & another [2021] eKLR where he stated[30]For the respondent to bring this suit against the applicants who are not her spouse is untenable. The applicants have nothing to do with contribution of spouses towards acquisition of matrimonial property. In any event, the property in question was purchased out of a loan now being sought to be recovered through the sale of security. The 1st applicant’s interest is realization of their money through the sale of the security deposited. To drag them to division of matrimonial property is to seek unachievable orders.[31]By all means family court is not the appropriate forum to challenge sale of the property in question. The only recourse the plaintiff has is to challenge the same in an ordinary civil suit before a court with jurisdiction to determine the right of statutory sale of a security. It is in that forum that the 1st applicant will have a chance to explain whether they have a legal right to execute recovery of their loan without involving the deceased’s legal representative.

12. I accordingly find that the orders sought by the Applicant against the 2nd Respondent cannot issue and dismiss prayer 1 of the Notice of Motion dated 12th May 2023.

13. The Respondent challenges the competence of the current suit and states that the Applicant has vide Nairobi ELC E374 of 2022 filed a suit claiming similar orders. In response the Applicant has shown this court Notice of Withdrawal of Suit dated 1st April 2023. It is this Court that has jurisdiction where there are issues touching on division of matrimonial property. I therefore find that the matter is properly before this court

14. On the 2nd issue, the parties set up their home in the subject property, it is therefore a matrimonial home by dint of Section 6 of the Marriage Act, 2014 the respective contributions of the Applicant and the 1st Respondent are to be determined in the Originating Summons. The property is registered in the name of the 1st Respondent.

15. I will first dispense with prayer 3 of the Notice of Motion by stating that the court cannot at this interlocutory stage pronounce on the respective shares to the matrimonial property.

16. It is not in dispute that the parties used the matrimonial property as security for a joint family business and that the property is a at risk of being auctioned by the 2nd respondent, having issued a statutory notice of sale. The Applicant vide prayer 2 of t4he Notice of Motion seeks injunctive prayers against the 1st Respondent asking that he be barred from selling, charging or disposing of the same. The Respondents response is that the orders will bar him from redeeming the property so that he forestalls the auction.

17. The principles for grant of injunction were enunciated in the locus classicus case of Giella v Cassman Brown Limited [1975] EA 358 and in the decision of the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR where the Court reiterated the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent and stated thus;It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd v Afraha Education Society [2001] Vol 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between. (Emphasis Supplied)

18. Applying the test as expounded in the Nguruman case, I find that the Applicant has established that she has a prima facie case, the Giraffe View Estate In Karen is undoubtedly matrimonial property. There is evidence to support her claim that she contributed towards the development of the matrimonial property. She therefore proceeds to the 2nd rung, which is whether she will suffer irredeemable damage if the injunction order does not issue.

19. In prayer 4 and 5 of the originating summons the Applicant states as follows(4)That an order do issue declaring that the Respondent/ Defendant is accountable to the Applicant/ Plaintiff in respect of all the income derived from the said property and should give an account of monies in receipt by him(5)That, an order do issue that property and income from the same Land Reference Number xxxx/xxx (xxxx/xx/xx) be settled in proportions aforesaid or as the Court may order

20. There are special circumstances in this case owing to the fact that the Bank wishes to call in the security. The Respondent would like to have an opportunity to redeem the property so as to forestall the auction. The Applicant also seeks an account and share of income derived from the property.

21. It is therefore possible to quantify the Applicants dues (if any) and finally with regard to the balance of convenience it is definitely in the interests of everyone that at this stage the respondent be given an opportunity to redeem the property and forestall the auction. For this reason, I would decline the order sought to stop him from selling, charging or disposing of the property as his actions to redeem the property are for their mutual best interests.

22. In Conclusion I make the following orders;a.The Notice of Motion dated 12th May 2023 is dismissed.b.The Respondent to file Reply to Originating Summons within 14 days. The Applicant granted leave to file further Affidavit if necessary within 7 days of service.c.The Originating Summons to proceed by way of viva voce evidence. Parties to file and exchange witness statements within 30 days. Matter will be mentioned on 7th December 2023 to confirm compliance and take further directions.d.Each party to bear their own costs

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 13TH DAY OF OCTOBER, 2023. P. NYAUNDIJUDGEIn the presence of:Libertine Court Assistant