[2022] KEHC 541 (KLR)

YN v MMK (Civil Appeal E126 of 2021) [2022] KEHC 541 (KLR) (Family) (6 May 2022) (Ruling)

Neutral citation: [2022] KEHC 541 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Appeal E126 of 2021

MA Odero, J

May 6, 2022

Between

YN

Appellant

and

MMK

Respondent

(Being an appeal from the Ruling and Order of the Kadhi’s court delivered on 30th of September 2021 in Kadhi’s Court Divorce Cause No. E010 of 2021 at Nairobi by the Honourable Kadhi A.I. Hussein)

Ruling

1. Before this Court for determination is the Notice of Motion application dated 28th October 2021 by which the Applicant/Appellant YN seeks the following orders:-“a.Spent.b.Spent.c.That the Honourable court be pleased to order stay of execution of the ruling and order of Kadhi’s Court Divorce Cause Number E010 of 2021 at Nairobi issued on 30th September 2021 by the Principal Kadhi AJ. ISHAQ HUSSEIN pending the hearing and determination of this Appeal.d.That this Honourable Court be pleased to issue a temporary injunction restraining the respondent and/or her agents and/or servants from interfering trespassing, harassing, collecting rent from tenants, of the Appellant FLAT NO. xx, Ground Floor on L.R. No. xxxx, Eastleigh, Nairobi pending hearing and determination of this Appeal.e.That costs of this application be provided.f.That the Honourable court be pleased to issue such further orders it deems just and convenient in the circumstances of this case.”

2. The application which was premised upon sections 1A, 1B, 3A and 63 (c) and (e ) of the Civil Procedure Act Cap 21 Laws of Kenya, Order 42 Rules 6 and 9 of the Civil Procedure Rules, 2010 section 17 of the Matrimonial Property Act and Article 159 (2) of the Constitution of Kenya 2010, was supported by the Affidavit of even date and the supplementary Affidavit dated 14th February 2022 sworn by the Applicant.

3. The Respondent MMK filed a Replying Affidavit dated 29th November 2021 in opposition to the application. The application was canvassed by way of written submissions. The Applicant filed the written submissions dated 14th February 2020 whilst the Respondent relied upon her written submissions dated 10th March 2022.

Background 4. The Applicant married the Respondent under Islamic/Sheria Law on 10th March 2004 in Birmingham, United Kingdom. During the subsistence of the marriage the couple cohabitated in the United Kingdom and in Nairobi, Kenya.

5. On 3rd March 2021 the Applicant issued the Respondent with a written notice of Divorce, where she accepted before witnesses that she had received her ‘Mahr’.

6. The Applicant avers that during the subsistence of their marriage the wife purchased the property known as Flat No. xx erected on LR No xxxx vide a sale Agreement dated 28th April 2010. The Applicant avers that on 22nd January 2014 the Respondent without his knowledge, authority and/or consent sold and transferred the said Flat xx to one Shamso Abdulkadir Aden.

7. The Applicant further avers that on 15th November 2012 he singlehandedly purchased the property known as Flat No. xx Ground Floor on LR No. xxxx in the Eastleigh Area of Nairobi (hereinafter referred to as the suit property’). That following said purchase the Applicant used the said Flat to run a private clinic known as [Particulars Withheld].

8. The Applicant later relocated to Mogadishu, Somalia. He then rented the suit property to one Hussein Abdi w.e.f 1st November 2020 for a two (2) year renewable lease which was to expire on 1st November 2022. He left the suit property under the management of one Farhia Hussein AbdI, on the understanding that the rental income being Kshs 30,000 per month was to be utilized to pay off a loan advanced to the Applicant for the purchase of said Flat.

9. The Applicant alleges that, after their divorce the Respondent entered into the suit property with intent to breach the peace and interfere with the quiet possession of his tenant. That she harassed the tenant demanding that the rent be paid to her. That the Respondent went to Pangani Police Station and misrepresented herself as the sole owner of the suit property and through a letter written by her Advocates collected an amount of Kshs 155,000 being the rent for January to March 2021. That the Respondent has continued to demand that the rent be paid to her.

10. The Applicant then filed a suit in the Kadhi Court being KCDR Cause No. E010/2021 in which he sought an injunction to restrain the Respondent from interfering with the suit property pending the hearing of the main petition.

11. On her part the Respondent insisted that the suit property was jointly owned by herself and the Applicant and that they have equal rights over the same. She alleged that the Applicant had been collecting all the rent to her exclusion since November 2012 thus she instructed her Advocate to write to the tenant demanding that the rent be paid to her. The Respondent confirmed that she has managed to collect as rental income the sum of Khs 155,000 being rents for February to April 2021.

12. The Hon Kadhi delivered his ruling on 30th September 2021 in which Ruling the following orders were made:-“a.That pending the hearing and determination of this suit, an order of injunction do issue restraining the parties herein whether by themselves or their representatives, servants, agents, and/or assigns from howsoever selling, alienating the Flat No. xx on the ground floor of all that building erected on L.R. No. xxxx located at Eastleigh, Nairobi Kenya (the suit property).b.That pending the hearing and determination of this suit a joint account be opened by the parties herein and the rental proceeds be deposited therein.c.That pending the hearing and determination of this suit parties are hereby directed to attend mediation session and the progress report to be presented within 30 days.”

13. Being aggrieved by the said Ruling the Applicant filed in the High Court a Memorandum of Appeal dated 28th November 2021 contemporaneously with said Appeal then Applicant filed this application seeking to say the orders of the Hon Kadhi pending the hearing and determination of said appeal.

14. The Respondent in opposing the current application submits that the same has no merit. That the Applicant has not established a prima facie case and has failed to demonstrate what loss he is likely to suffer if the stay orders are not granted. She urges the court to dismiss this application entirely.

Analysis and determination 15. I have carefully considered the present application, the Replying Affidavit filed by the Respondent as well as the written submissions filed by both parties. The only issue for consideration is whether the order of stay ought to be granted.

16. The Respondent has submitted that the supporting Affidavit dated 28th October 2021 is fatally defective as the same is indicated to have been sworn in Nairobi yet on that date the applicant was in Mogadishu, Somalia. Further that said supporting Affidavit does not bear the stamp of a Notary Public as required by Section 5 of the Oaths and Statutory Declaration Act Cap15 Laws of Kenya.

17. I have carefully perused the supporting Affidavit dated 28th October 2021. The same is indicated to have been sworn by the Applicant in Nairobi. However, I note that contrary to allegations made by the Respondent the Affidavit is signed and stamped by Ashford Muriuki Mugwuku Advocate and Notary Public.

18. The Applicant explains that though he had indeed relocated to Somalia he always travelled to Nairobi in order to instruct his Advocate. The fact that the applicant resided in Mogadishu does not exclude the possibility that he could have travelled to Nairobi in order to execute a document. Somalia and Kenya are neighbouring Countries and the citizens of both Countries commute on regular basis between the two Countries.

19. Order 42 Rule 6 of the Civil Procedure Rules set out the grounds upon which a stay may be granted as follows:-“(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2) No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant”.

20. It is important to remember that the orders made by the Hon Kadhi were merely ‘interim’ orders. The main suit at which final decision is to be made regarding the rights of each party is yet to be heard. This court therefore cannot delve into the merits of the case as this is a matter which is yet to be determined by the Hon Kadhi.

21. The orders of the Hon Kadhi were made on 30th September 2021. The current application was filed on 28th October 2021 barely one (1) month after said orders were made. I am satisfied that this application was filed in a timeous manner.

22. The Applicant was required to satisfy the court that he stands to suffer substantial loss if the stay orders being sought are not granted.

23. I have looked at the sale Agreement in respect of Flat No. xx on the Ground Floor erected on L.R. No. xxxx, Eastleigh. The sale Agreement which appears as Annexture ‘YN-4’ to the supporting Affidavit sown on 28th October 2021 indicates that the property was sold to both YN (Applicant) and MMK (the Respondent) as joint purchasers. The sale Agreement has been executed by both the Applicant and the Respondent. This document belies the claim by the Applicant that he alone purchased the suit property single handedly.

24. As stated earlier this court would be reluctant to make any determination on this issue of ownership without the benefit of hearing all the evidence. Suffice to say prima facie it would appear that the Respondent has a valid claim to the suit property and may (subject of course to proof) be entitled to a portion of the rental income derived therefrom.

25. The orders granted by the Hon Kadhi on 30th September 2021 directed that both parties be restrained from selling transferring or in any other way alienating the suit property pending determination of the suit. In this way the subject matter of the suit will be preserved. This is to the benefit of both parties and would not cause any loss whatsoever to the Applicant.

26. Secondly, the Hon Kadhi directed that the rental income be deposited in a joint account to be opened by both partiers. Once again, I fail to see how this order would cause substantial loss to the Applicant. The rental income which is the subject of the dispute between the parties is to be collected and retained in a joint account to prevent any dissipation of the same. If the Applicant is successful upon appeal then his appeal will not be rendered nugatory as the funds will still be available in the joint account.

27. Indeed it is my view that the Hon Kadhi acted with wisdom in making orders to ensure the preservation of the subject matter of the dispute pending full hearing of the suit. I find no merit in this application for stay. The same is hereby dismissed in its entirety. This being a family matter each party shall bear its own costs.

DATED IN NAIROBI THIS 6TH DAY OF MAY 2022. ...........................................MAUREEN A. ODEROJUDGE