[2022] KEHC 10971 (KLR)

VWM v SMW (Matrimonial Cause E015 of 2022) [2022] KEHC 10971 (KLR) (Family) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10971 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Matrimonial Cause E015 of 2022

MA Odero, J

July 15, 2022

IN THE MATTER OF SECTION 7,12, & 17 OF THE MATRIMONIAL PROPERTY ACT NO. 49 OF 2013 IN THE MATTER OF THE APPLICATION FOR DIVISION OF MATRIMONIAL PROPERTY

Between

VWM

Applicant

and

SMW alias MKW

Respondent

Ruling

1. Before this court for determination is the Notice of Motion application dated February 16, 2022 by which the applicant VWM seeks the following orders:-“1. Spent.2. A temporary injunction do issue restraining the respondent by himself, his agent or servants, advocates or any person claiming under them or otherwise from possessing, occupying, selling, transferring, dealing in whatever manner and/or interfering with the Applicant’s property known as Land Parcel No. Dagoretti/Riruta/xxxx and any other property that was matrimonial during the pendency of the marriage, pending hearing and determination of this application.3. That pending the hearing and determination of this matter, there be orders in like effect to prayer No. 2 above.4. Thatthis honourable court do issue orders compelling the Respondent to submit all sale proceeds, rent proceeds if any and bank statements of the respondent and any documents pertaining to the above named properties for clarification and transparency.5. That the costs of this application be borne by the Respondent.

3. The application which was premised upon sections 1A, 1B 3 and 3A of the Civil Procedure Act and Order 40 Rules 1, 2, 4 and 51 of the Civil Procedure Rulesand all other enabling provisions of the law, was supported by the Affidavit of even date sworn by the Applicant.

4. The respondent SMW alias MKW opposed the application through the replying Affidavit dated March 18, 2022. The application was canvassed by way of written submissions. Theapplicant filed the written submissions dated April 14, 2022whilst the respondent filed the submissions dated May 9, 2022.

BACKGROUND 5. The parties herein got married to each other through a Christian Marriage conducted on September 18, 1971at [Particulars withheld] Catholic Church in Nairobi. A copy of their Marriage Certificate Serial Number xxxxxx is annexed to theapplicants supporting affidavit dated February 16, 2022, (Annexture VWM ‘1’).

6. The couple divorced in the year 2020 and their marriage was dissolved vide a Decree Nisi issued on February 11, 2020. The Decree was made absolute through a Decree Absolute issued on March 5, 2021. (Annexure ‘VWM-3’).

7. The applicant states that during the pendency of their marriage the couple managed to acquire several properties including but not limited to the parcel of land known as Dagoretti/Riruta/xxxx (hereinafter ‘the suit land’).

8. According to the applicant the parties entered into a Memorandum of understanding datedJanuary 28, 2011(herein after referred to as ‘the Memorandum’) by which the suit land was to be subdivided with the applicant receiving two (2) acres of the suit land. A copy of the Memorandum appears as annexture ‘VM2’ to the applicants Supporting Affidavit.

9. It is the applicants case that she and the respondent both have equitable and legal rights to all property acquired during the pendency of the marriage. She prays that in the interest of justice, the Memorandum be honoured and she be allocated two (2) acres of the suit land as agreed thereunder.

10. The applicant avers that the suit land constitutes matrimonial property and is where the matrimonial home is located. She is apprehensive that the suit land may be unlawfully disposed of or dealt with in a manner detrimental to her interest therein unless this court intervenes. The applicant now seeks orders to preserve the suit property pending the hearing and determination of the suit as well as orders compelling the Respondent to submit all records of any dealings in the suit land.

11. As stated earlier the respondent opposed the application. The respondent confirms that he got married to the applicant in the year 1971. He also confirms that he divorced the applicant for desertion when she relocated to America and acquired American Citizenship.

12. The respondent denies that the couple acquired any property at all during the pendency of their marriage. He states that they were concentrating their efforts (and resources) in educating their children.

13. The respondent avers that Dagoretti/Riruta/xxxx (the suit land) was not acquired during the pendency of the marriage but rather that it was an inheritance from his father having been carved out of Dagoretti/Riruta/xxxx, which was his family’s ancestral land, which was shared out amongst all the Respondents siblings. He submits that Dagoretti/Riruta/xxxx has now changed form and no longer exists thus any claim to the suit property would automatically fail.

14. The respondents further avers that the Memorandum of understanding dated January 28, 2011was premised upon love and affection but given that the parties are now divorced the same has been overtaken by events, and is no longer valid. He urges the court to dismiss this application in its entirety.

Analysis and Determination 15. I have carefully considered the present application, the affidavit filed in reply as well as the written submissions filed by both parties.

16. The principles upon which an interlocutory injunction may be granted are set out in the oft cited case of GiellavCassman Brown [1973] E.A. 358 as follows:-1. The applicant must establish a prima faciecase with a probability of success.2. The applicant must demonstrate that he stands to suffer irreparable harm if the orders sought are not granted.3. If there is any doubt then the court will decide the case on a balance of probability.

17. The definition of what constitutes a ‘prima face’ case was given in the case of Mrao LtdvFirst American Bankof Kenya Ltd & 2others [2003] KLR 125 where the court held as follows:-“In civil case a prima facie case is a case in which as the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. This is clearly a standard which is higher than an arguable case.” (own emphasis)

18. The applicant claims that the suit property constitutes matrimonial property which was acquired during the pendency of her union with the respondent. The respondents position is that the suit land is not matrimonial property but rather is his inheritance from his father.

19. The main bone of contention between the parties is whether the named property constitute matrimonial property. Section 6 (1) of the Matrimonial Property Act provides as follows:-“(1)For the purposes of this Act, matrimonial property means—(a)the matrimonial home or homes;(b)household goods and effects in the matrimonial home or homes; or(c)any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.

20. It is not in dispute that the parties herein were married on 1September 8, 1987. That they later divorced on February 11, 2020. I have perused the Green Card for Dagoretti/Riruta/xxxx (Annexutre MWK ‘1’ to the replying affidavit dated March 18, 2022). The copies of the green card indicates that the suit land is registered in the name of the respondent and the title deed in respect of the same was issued on October 23, 1995 which was during the period of coverture.

21. I find that there exits prima facieevidence that the suit property was acquired during the subsistence of the marriage between the applicant and the respondent. Accordingly, I find that the applicant has established a prima facie case, and is therefore entitled to the interlocutory orders sought.

22. The question of whether or not the suit property constitutes matrimonial property which ought to be shared between the parties and the question of whether inherited property can be deemed to constitute matrimonial property are all issues which can only be determined at a full hearing of the suit.

23. The applicant has sought to enforce the Memorandum of Understanding dated January 28, 2011 in which she was to be allocated two (2) acres of the suit land. The respondent argues that the Memorandum has been overtaken by events and is no longer valid. Once again, this is an issue that can only be determined at a full hearing when both parties will be entitled to call evidence in support of their respective positions.

24. In her application the applicants sought interlocutory orders in respect of ‘any other’ property acquired during the pendency of the marriage. The court cannot issue orders in respect of unspecified properties, court orders must be clear and unambiguous. Accordingly this prayer in respect of ‘any other’ property is dismissed.

25. Finally based on my finding that a prima facie case has been established I further find that the applicant is likely to suffer irreparable harm unless presevatory orders are made. Accordingly, I do allow this application and make the following orders:-1. A temporary injunction be and is hereby issued restraining the respondent by himself, his agents or assignees from selling transferring, charging, leasing or in any other similar manner whatsoever interfering with the property known as Land Parcel No. Dagretti/Riruta/xxxx pending determination of this suit.2. Prayer (4) of this Notice of Motion to abide the full hearing of the suit.3. This being a family matter each side will pay its own costs.

DATED IN NAIROBI THIS 15TH DAY OF JULY 2022. ……………………………MAUREEN A. ODEROJUDGE