[2025] KEHC 2780 (KLR)

THW v PNN (Civil Suit E003 of 2023) [2025] KEHC 2780 (KLR) (12 March 2025) (Ruling)

Neutral citation: [2025] KEHC 2780 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Suit E003 of 2023

RM Mwongo, J

March 12, 2025

IN THE MATTER OF THE MATRIMONIAL PROPERTY ACT 2013

Between

THW

Applicant

and

PNN

Respondent

Ruling

1. This ruling concerns two (2) applications both filed by the applicant dated 23rd October 2024 (the First application) and 11th November 2024 (the Second application).

The First Application 2. In the First application, the applicant seeks the following orders:1. Spent;2. That this honourable court be pleased to grant a temporary injunction restraining the respondent whether by himself, his agents and/or servants from evicting the applicant or from selling land referred to as Gaturi/Weru/8XX0, 8XX1, 8XX4, 8XX5, 8XX6, 8XX7, 8XX8, 8XX9, 8XX0, 8XX1, 8XX2, 8XX3, 8XX4, 8XX5 and 8XX6 pending hearing and determination of this application: (Spent);3. That this honourable court be pleased to grant a temporary injunction restraining the respondent whether by himself, his agents and/or servants from interfering with the property referred to as Gaturi/Weru/6XX4, 6XX5, 6XX6, 6XX8 and 6XX9 as well as Mwanamukia plot number 91 by way of sale pending hearing and determination on this application;4. That this honourable court be pleased to grant prayers (2) and (3) above pending the hearing and determination of the suit;5. That the costs of the application be in the cause; and6. That this honourable court be pleased to grant any other orders it deems just and expedient.

3. The applicant seeks the orders on grounds that the matrimonial cause herein is pending determination. Hence, it is imperative that the matrimonial property be preserved, lest the proceedings be rendered nugatory. Further, that the applicant is in danger of being evicted from the matrimonial property as the respondent has already given the applicant an ultimatum to vacate. She stated that she has been living on the suit land for more than 20 years with her son, and it is her source of livelihood. She is apprehensive that if the orders sought are not granted, the respondent will dispose of the land, forcing her to be evicted.

4. The respondent filed a replying affidavit through which he opposed the application. He stated that according to the amended originating summons, the matrimonial property is land parcel number Gaturi/Weru/2XX7; That he has not been living at the matrimonial home because the applicant has been threatening him. It was his strong belief that the applicant should not be occupying the subject land since he acquired it long before he married her.

5. He deposed that there is nothing stopping him from going to the said land, his home, which he has allowed the applicant to occupy. He stated that the applicant has encumbered the land through cautions thus he is unable to sell any of it to raise money for treatment of his chronic illness. It was his averment that the applicant stands to benefit a lot from the delay in hearing the substantive case and that is why she is employing delay tactics. He denied attempting to force her out of the property because he is awaiting the verdict of the court on the substantive matter.

The Second Application 6. In the Second application, the applicant seeks the following orders:1. Spent;2. That this honourable court be pleased to grant an order compelling the respondent to vacate his occupation of the matrimonial home situated within the suit property referred to as Gaturi/Weru/8XX0, 8XX1, 8XX4, 8XX5, 8XX6, 8XX7, 8XX8, 8XX9, 8XX0, 8XX1, 8XX2, 8XX3, 8XX4, 8XX5 and 8XX6 pending hearing and determination of this application;3. That this honourable court be pleased to grant a temporary restraining order barring the respondent whether by himself, his agents and/or his servants from continued occupation of the matrimonial home situated within the suit property referred to as Gaturi/Weru/8XX0, 8XX1, 8XX4, 8XX5, 8XX6, 8XX7, 8XX8, 8XX9, 8XX0, 8XX1, 8XX2, 8XX3, 8XX4, 8XX5 and 8XX6 pending hearing and determination of this application4. That this honourable court be pleased to grant prayers (2) and (3) above pending the hearing and determination of the suit;5. That the costs of the application be in the cause; and6. That this honourable court be pleased to grant any other orders it deems just and expedient.7. The application is premised on the grounds that pending determination of the substantive suit, the respondent has attempted to force her out of the matrimonial home. Luckily for her, the eviction was stopped by an order of this court, emanating from the first application. That the parties have been living separately since before the divorce but, recently the respondent moved back into the matrimonial home and tried to evict the applicant. She stated that she is living in a lot of fear for her safely and wellbeing since the respondent is constantly threatening her with eviction.8. The respondent refuted these allegations in a replying affidavit and deposed that the applicant’s application is based on falsehoods. It was his case that he acquired the suit properties in 1988, long before he married the applicant and it would be unfair to deny him access to his property pending determination of the substantive cause. He urged that if the orders sought are granted, it will amount to him being condemned unheard. On this basis, he urged the court to dismiss the application in its entirety and have the substantive suit heard and determined expeditiously.

Parties’ submissions on the applications 9. The applicant filed her written submissions while the respondent relied on his replying affidavits in respect of both applications.

10. On the first application, the applicant submitted that it passes the test set out in Giella v Cassman Brown (1973) EA 358 (“Giella”). She argued that she has established a prima facie case with high chances of success; if the orders are not granted, she will suffer irreparable harm that cannot be compensated through damages and, in any event, the balance of convenience is in her favour.

11. She placed further reliance on the case of Nguruman Limited v Jan Bonde Nielson [2014] KEHC 1718 (KLR). On whether she has established a prima facie case, she relied on the case of Mrao Limited v First American Bank Ltd and 2 Others (2003) KLR 125 and argued that during the marriage, she developed the properties Gaturi/Weru/6XX4, 6XX5, 6XX6, 6XX8 and 6XX9 and Gaturi/Weru/8XX0-8XX6. She fears that given the chance, the respondent will sell the properties in the guise of raising money for his medical condition. If this happens, she will lose the contribution she put into developing the properties during the 20-year long marriage.

12. According to her, this loss is not one that can be compensated through damages given the nature of the case. She will also be rendered homeless and it is likely that the substantive suit will be rendered nugatory. She submitted that following dissolution of the marriage, she has continued to single-handedly provide for the issues of the marriage and she relied on proceeds from farming activities to do so. These efforts will be curtailed if the land is alienated through the efforts of the respondent.

13. Regarding the balance of convenience, she relied on the cases of Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR) and Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others [2016] KEHC 7263 (KLR). She argued that she is more likely to suffer greater harm than the respondent if the orders sought are not granted. She urged that court to apply the principles in Giella (supra) and allow the application.

14. On the second application, the applicant relies on the cases of Njenga v Njenga [1985] KECA 43 (KLR), Kenleb Cons Ltd v New Gatitu Service Station Ltd & another [1990] KEHC 53 (KLR), Giella (supra), Nguruman Limited v Jan Bonde Nielson [2014] KEHC 1718 (KLR) (supra), Mrao Limited v First American Bank Ltd And 2 Others (2003) KLR 125 (supra), Burns v Burns [1984] 1 All ER 244, Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR) (supra), Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others [2016] KEHC 7263 (KLR) (supra) and Amir Suleiman v Amboseli Resort Limited [2015] KEHC 4696 (KLR).

15. She argued that she contributed to developing the land when the respondent was living and working in Sudan. From these developments which include planting cash crops, she drew a livelihood and sustenance. It was her argument that the injunctive orders should be issued because the respondent already has an alternative home. As such, if he is left to evict her, an injustice will be occasioned, such that damages will not be enough to compensate her. She stated that her children have known the land to be their only home for 24 years. She urged the court to also allow the second application since it meets the test set out in Giella (supra).

Issues for Determination 16. The issue for determination is whether the 2 applications have merit.

Analysis and Determination 17. The gist of both applications is that the applicant seeks a temporary injunction against the respondent, and that he should be compelled to vacate the matrimonial home and stay away from it until the substantive suit is determined. The parties herein are divorced. It is the applicant’s case that prior to the divorce, she was living in the matrimonial home with her children. She developed it and planted cash crops from which she draws an income for sustenance for her and her children.

18. She stated that after the divorce, she continues to take care of the children through the said farming activities. She stated that the respondent had moved out of the matrimonial home during the divorce proceedings but has recently moved back into the home and he is threatening to evict her. In rebuttal, the respondent claims that he moved back into the matrimonial home since he does not have another place to live.

19. The respondent deposed that the applicant has been threatening him with eviction yet the property belongs to him as he acquired it long before he married the applicant. He stated that he intends to sell part of the property to raise money for treatment of his medical condition abroad. These efforts have not been fruitful because the applicant has placed cautions on the land, hindering any transactions on the same.

20. In considering whether or not to grant an injunction, guidance is found in the case of Joel Kipkurui arap Koech v Alice Wambui Magandu & 3 others [2018] KEELC 2491 (KLR) in which the court relied on other decided cases as follows:“In the case of Suleiman v. Amboseli Resort Ltd (2004) KLR 589, Ojwang Ag. J (as he then was) stated thus: “Counsel for the Defendant urged that the shape of the Law governing the grant of injunctive relief was long ago, in Giella v Cassman Brown, in 1973 cast in stone and no new element may be added to that position. I am not, with respect, in agreement with counsel in that point, for the law has always kept growing to greater levels of refinement, as it expands to cover new situations not exactly foreseen before. ……Traditionally, on the basis of the well accepted principles set out by the Court of Appeal in Giella v Cassman Brown, the court has to consider the following questions before granting injunctive relief:i)Is there a prima facie case…..ii)Does the applicant stand to suffer irreparable harm….iii)On which side does the balance of convenience lie……Even as those must remain the basic tests, it is worth adopting a further, albeit rather special and more intrinsic test which is now in the nature of general principle. The court in responding to prayers for interlocutory injunctive relief should always opt the lower rather than the higher risk of injustice… if granting the applicant’s prayers will support the motion towards full hearing, then should grant those prayers...”

21. The first question is: Has the applicant established a prima facie case? From the circumstances of the case, there is a pending substantive suit through which the applicant has sought distribution of matrimonial property. The applicant has also raised arguments through the application in a bid to move the court to order in her favour. She raises arguable points that are valid in the eyes of the court. In the case of Kano & another v Cabinet Secretaty Ministry of Interior & Co-ordination & another [2025] KEHC 17299 (KLR), the court stated thus regarding a prima facie case:“It is trite that when a court is called upon to determine whether a prima facie case has been established, it should not delve into a detailed analysis of the facts and law but should focus ondetermining whether the applicant has put forward a case that is arguable and not frivolous. In Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] eKLR the Court stated that:“It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evidence of a likelihood of success. The prima facie case ought to be beyond a speculative basis...””

22. The second question is: Will the applicant be likely to suffer irreparable harm if the orders are denied? Through both applications, the applicant has indicated that during the 20-year marriage to the respondent, she developed the land which the respondent calls his own alone. She stated that she has used the land to fend for herself and her children and even after the divorce, she still depends on it for income and sustenance. The applicant says she is apprehensive that the respondent will force her out of the matrimonial home which he has moved into, even though he has an alternative home where he has been living away from the applicant.

23. The respondent denies that he has an alternative home and insists that the land belongs to him. He has not offered a rebuttal to the applicant’s argument that she draws sustenance from the land. He stated that he is keen on selling the land to raise money for his medical expenses. From these arguments, the land has critical meaning to both parties, but there is a pending substantive suit before this court. Accordingly, at this point in time, the court must limit its focus on how to preserve the suit land until the suit is determined.

24. From this angle, the applicant has demonstrated that she will suffer irreparable harm if the orders are not granted. In fact, if the respondent is left to alienate the suit land, the pending substantive suit will be rendered a nullity, and judicial time will have been wasted a great deal. Moreover, this kind of loss cannot be compensated by way of damages because if the orders are denied and the land is alienated, the applicant loses a chance to ventilate her case through the originating summons. Contrariwise, the respondent will reap from the alienation prior to the hearing of the suit.

25. As to where the balance of convenience lies, this factor is a tie-breaker where the court is not sure of the first two parameters in Giella (supra). In the case of Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others [2016] KEHC 7263 (KLR), the court stated thus, regarding convenience:“Where any doubt exists as to the applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which injury the applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right. The burden of proof that the inconvenience which the applicant will suffer if the injunction is refused is greater than that which the respondent will suffer if it is granted lies on the applicant.”

26. It has been clarified herein that the applicant will suffer grater prejudice if the orders sought are not granted. The respondent’s arguments are to the effect that the land belongs to him since he acquired it before his marriage to the applicant. Clearly, this argument should be raised during hearing of the substantive suit. It is also clear that the respondent is keen to sell the land so that he can raise money for his medical expenses. He is also keen to have the substantive suit concluded. Thus, if the court grants the orders sought, the respondent will suffer no harm as compared to the harm the applicant will suffer.

Conclusion and Disposition 27. Ultimately, it is my view that both of the applications have merit. Accordingly, orders are made as follows:1. Temporary injunctions are hereby issued against the respondent restraining him whether by himself, his agents and/or servants from evicting the applicant from Gaturi/Weru/8XX0, 8XX1, 8XX4, 8XX5, 8XX6, 8XX7, 8XX8, 8XX9, 8XX0, 8XX1, 8XX2, 8XX3, 8XX4, 8XX5 and 8XX6. 2.A temporary injunction is hereby issued against the respondent restraining him whether by himself, his agents and/or servants from selling or otherwise alienating properties Gaturi/Weru/8XX0, 8XX1, 8XX4, 8XX5, 8XX6, 8XX7, 8XX8, 8XX9, 8XX0, 8XX1, 8XX2, 8XX3, 8XX4, 8XX5 and 8XX6, Gaturi/Weru/6XX4, 6XX5, 6XX6, 6XX8 and 6XX9 and Mwanamukia plot number 91. 3.The injunctive orders above shall last until further orders of the Court.

28. In the circumstances of this case and the applicant having demonstrated on a balance of probabilities that she depends on the suit land for her sustenance, further orders are made as follows:1. An order hereby issues compelling the respondent to vacate his occupation of the matrimonial home situated within the suit property referred to as Gaturi/Weru/8XX0, 8XX1, 8XX4, 8XX5, 8XX6, 8XX7, 8XX8, 8XX9, 8XX0, 8XX1, 8XX2, 8XX3, 8XX4, 8XX5 and 8XX6. 2.A temporary restraining order hereby issues barring the respondent whether by himself, his agents and/or his servants from continued occupation of the matrimonial home situated within the suit property referred to as Gaturi/Weru/8XX0, 8XX1, 8XX4, 8XX5, 8XX6, 8XX7, 8XX8, 8XX9, 8XX0, 8XX1, 8XX2, 8XX3, 8XX4, 8XX5 and 8XX6. 3.The restraining orders to last until further orders of the Court.

29. The duration of the injunctive and restraining orders herein are so couched to give the respondent opportunity to cater for the event of that urgent medical intervention if it becomes necessary.

30. The substantive suit shall be fast-tracked by way of completion of pleadings for hearing within the next ninety (90) days or as the Court determines.

31. Costs are in the cause.

32. Orders accordingly.

DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 12TH DAY OF MARCH, 2025. R. MWONGOJUDGEDelivered in the presence of:1. Mr.Sala for Muchemi for Applicant2. Mwau for Respondent3. Francis Munyao - Court Assistant