Elyjoy Kageni v Bank of Africa Kenya Limited, Muga Auctioneers and General Merchants, United Brothers Camps Ltd & Humphrey Mbabu Mbaka [2017] KEELC 3379 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT CHUKA

CHUKA ELC CASE NO 69 OF 2017

FORMERLY MERU ELC CASE NO.74 OF 2015

ELYJOY KAGENI………….……….………………….............PLAINTIFF

VERSUS

BANK OF AFRICA KENYA LIMITED…….….........….1ST DEFENDANT

MUGA AUCTIONEERS AND

GENERAL MERCHANTS.............................................2ND DEFENDANT

UNITED BROTHERS CAMPS LTD…….....…………..3RD DEFENDANT

HUMPHREY MBABU MBAKA………...………………4TH DEFENDANT

RULING

1. This application is dated 25th August, 2015 and seeks orders:

1. That this application be certified as urgent and be heard ex-parte in the first instance.

2. That pending the hearing of this application interpartes this Honourable Court be pleased to issue temporary orders of injunction restraining the 1st and 2nd Defendants, their agents, servants and/or employees or whomsoever acting on their behalf or instructions from selling, advertising for sale or in any other manner whatsoever from dealing with Land Reference No. CHUKA TOWNSHIP/39.

3. That pending the hearing of this suit this Honourable Court be pleased to issue temporary orders of injunction restraining the 1st and 2nd Defendants, their agents, servants and/or employees or whomsoever acting on their behalf or instructions from selling, advertising for sale or in any other manner whatsoever from dealing with Land Reference No. CHUKA TOWNSHIP/39.

4. That the costs of this application be provided for.

2. The application is supported by the affidavit of ELYJOY KAGENI, the plaintiff and has the following grounds:

a) That the 1st Defendant has engaged the 2nd Defendant to advertise and sell Land Reference No. CHUKA MUNICIPALITY/39.

b) That the plaintiff stands to suffer irreparable damage if the property is sold as intended by the 1st and 2nd defendants as the same is plaintiff’s only matrimonial home.

c) That this Honourable Court ought to come to the rescue of the plaintiff/applicant and issue injunction orders as prayed and stop abuse of Law.

d) That the prayers sought by the plaintiff/applicant are meant to preserve the status quo pending the hearing by the Court and will not in any way prejudice the Defendant’s (sic) case in any way as they have acted in contravention of Land Act.

3. The affidavit supporting the application was sworn by the plaintiff on 25th August, 2015 and says as follows:

“I, ELYJOY KAGENI of P. O. Box 776-60400, CHUKA make Oath and state as follows:-

1. THAT I am the Plaintiff/Applicant herein and therefore competent to make and swear this affidavit.

2. THAT I know the 4th Defendant who is my husband and live on Land Reference No. CHUKA TOWNSHIP/39 which among others comprises our matrimonial home.

3. THAT on or about 29th July, 2015 I noticed some advertisement papers and/or posters on my gate and perimeter wall and on close scrutiny I discovered that they were meant to be notices for sale of Land Reference NO. CHUKA TOWNSHHIP/39. (annexed are copies of the same marked “EK 1” and “EK 2”)

4. THAT I confronted my husband who refused to talk to me.

5. That I approached the 1st Defendant’s employees in Meru Town who informed me that the land had been charged to secure a loan.

6. (a)THAT I was surprised as I was not consulted and my consent was never sought although I live on the land.

(b)THAT I am advised and believe the advice to be sound that the charge was in contradiction of Section 79 (3) of the Land Act of 2012.

7. THAT I am advised by my Advocates and believe the advice to be sound that the charge relied on by the Defendants to sell my matrimonial home is unlawful and does not give them the right to sell my property.

8. THAT the sale of the said land should be stopped as if the same is sold, it will render me and my son homeless.

9. THAT the contents of this affidavit are true to the best of my knowledge, information and belief.

4. The plaintiff’s supporting affidavit is answered by a Replying Affidavit sworn by SAMUEL IRUNGU, the Recoveries officer at Bank of Africa Kenya Limited. This affidavit was sworn on 2nd October, 2015. The affidavit says:

“I, SAMUEL IRUNGU, a resident of Nairobi and of Post Office Box Number 69562-00400 Nairobi in the Republic of Kenya do hereby make oath and state THAT:

1. I am an adult of sound mind. I am a Recoveries Officer at Bank of Africa Kenya Limited (“the 1st Defendant”) and I am competent and duly authorized by the 1st Defendant to swear this Affidavit for and on its behalf.

2. I have read and understood the contents of the Plaintiff’s Notice of Motion dated 25th August,2015 (“the application”) and the Supporting Affidavit of Elyjoy Kageni sworn on 25th August, 2015 (“the Supporting Affidavit”) and the Exhibits annexed thereto. I swear this affidavit for and on behalf of the 1st Defendant in opposition to the Application and Supporting Affidavit.

5. In the year 2012,United Brothers Camp Limited (“ the 3rd Defendant”) through its representatives Humprey Mbabu Mbaka (“the 4th Defendant”) and Lucyline Kanyua Mutindwa, approached the 1st Defendant requesting for banking facilities amounting to Kshs.20,600,000/=

6. The 4th Defendant and Lucyline Kanyua Mutindwa presented themselves to the 1st Defendant as husband and wife and all indications were that the 3rd Defendant was a family company.

7. By a letter dated 11th May, 2012, the 1st Defendant offered various banking facilities to the 3rd Defendant. The latter expressly accepted the said banking facilities by executing the 1st Defendant’s letter dated 11th May, 2012 which contained some of the terms and conditions of the facilities.

Annexed hereto as Exhibit SI 1 is true copy of the 1st Defendant’s letter dated 11th May, 2012.

8. The 3rd Defendant and its directors – the 4th Defendant and Lucyline Kanyua Mutindwa –agreed to provide the following securities for the banking facilities offered by the 1st Defendant:

i) A First Legal Charge over property Title Number Chuka Township/39 (“the Suit Property”) registered in the name of the 4th Defendant for the sum of Kshs.20,600,000/=;

ii) Personal guarantees and indemnities for KSHS.20,600,000/= by the 4th Defendant and Lucyline Kanyua Mutindwa; and

iii) Keyman Insurance over the life of the 4th Defendant for Kshs.20,600,000/=.

The 4th Defendant and Lucyline Kanyua Mutindwa both signed the 1st Defendant’s letter dated 11th May, 2012 (Exhibit SI 1).

9. By a Charge dated 7th August, 2012,made between the 4th Defendant (as charger), 3rd Defendant (as borrower) and the 1st Defendant (as charge), the 4th Defendant charged his interest in the Suit Property to secure the payment of the sum of Kshs.20,600,000/= constituting the financial facilities granted by the 1st Defendant to the 3rd Defendant together with interest thereon due or payable to the 1st Defendant and all costs, charges and expenses incurred by the Bank in relation to the Charge.

Annexed hereto as Exhibit S12 is a true copy of the Charge dated 7th August, 2012.

10. Prior to, during and after the preparation and execution of the Charge, the 4th Defendant and Lucyline Kanyua Mutindwa confirmed their relationship as husband and wife and as the person residing on the Suit Property. Indeed, in the Charge, Lucyline Knayua Mutindwa expressly and unreservedly gave spousal consent for 4th Defendant to charge the Suit Property to the 1st Defendant to secure the financial facilities granted to the 3rd Defendant.

11. Under the Charge, the 3rd Defendant and the 4th Defendant covenanted that either or both of them would pay all the monies, obligations and liabilities secured by the Charge on demand.

12. By a Deed of Guarantee and Indemnity dated 29th July, 2012, the 4th Defendant inter alia guaranteed performance by the 3rd Defendant of its obligations in relation to the financial facilities granted by the 1st defendant.

Annexed hereto as Exhibit SI 3 is a true copy of the Deed of Guarantee and Indemnity dated 29th July, 2012 and given by the 4th Defendant to the 1st Defendant.

13. By a Deed of Guarantee and Indemnity dated 29th July, 2012 Lucyline Kanyua Mutindwa inter alia guaranteed performance by the 3rd Defendant of its obligations in relation to the financial facilities granted by the 1st Defendant.

Annexed hereto as Exhibit SI 4 is a true copy of the Deed of Guarantee and Indemnity dated 29th July, 2012 and given by Lucyline Kanyua Mutindwa to the 1st Defendant.

14. In August 2013, it became clear that the 3rd Defendant had not been performing its obligations in relation to the financial facilities granted by the 1st Defendant. Consequently, the 3rd Defendant’s loan account had fallen into arrears. By two letters dated 1st August, 2013, the 1st Defendant notified the 4th Defendant and Lucyline Kanyua Mutindwa of the change of the 3rd Defendant’s loan account from performing to non-performing status.

Annexed hereto as Exhibit SI 5 are true copies of the two letters dated 1st August, 2013.

15. Sometime in September 2013, the 3rd Defendant through its representatives, the 4th Defendant and Lucyline Kanyua Mutindwa, approached the 1st Defendant for purposes of restructuring the financial facilities that had been granted to it. By a letter dated 26th September 2013, the 1st Defendant offered to restructure the financial facilities granted to the 3rd defendant.

16. The 3rd Defendant expressly accepted by (sic) the above offer by executing the 1st Defendant’s letter dated 26th September 2013 and the 1st Defendant’s Standard Terms and Conditions Applicable to all Banking Facilities.

Annexed hereto as Exhibit SI 6 are true copies of the 1st Defendant’s letter dated 26th September 2013 and the 1st Defendant’s Standard Terms and Conditions Applicable to all Banking Facilities as executed by the 3rd Defendant.

17. The 3rd Defendant agreed to provide in addition to the existing securities, Personal Guarantees and Indemnities for Kshs.25,700,000/= issued by the 4th Defendant and Lucyline Kanyua Mutindwa.

18. The 3rd Defendant failed to perform its obligations in relation to the financial facilities granted by the 1st Defendant and secured by the Charge and the Personal Guarantees and Indemnities referred to above. In view of the foregoing default, the 1st Defendant issued three separate demands dated 9th October 2014, 21st November, 2014 and 11th December 2014 to the 3rd Defendant through its directors (the 4th Defendant and Lucyline Kanyua Mutindwa).

Annexed hereto as Exhibit SI 7 are true copies of the letters dated 9th October 2014, 21st November 2014 and 11th December 2014.

19. The 3rd Defendant failed to comply with the demands set out in the above letters. Accordingly, the 1st Defendant decided to exercise its rights as Chargee. Indeed –

a) Through Coulson Harney Advocates, its Advocates on record, the 1st Defendant issued a statutory notice dated 3rd February 2015 to the 4th Defendant (and copied to the 3rd Defendant). The foregoing statutory notice was issued in accordance with section 90 of the Land Act, 2012 and sent to its recipients by way of registered post:

b) Following the issuance of the statutory notice, the 1st Defendant did not receive any proposal for payment, response or acknowledgement from the 3rd Defendant, the 4th Defendant or Lucyline Kanyua Mutindwa;

c) Following the expiry of the statutory notice referred to above, the 1st Defendant decided that it would exercise its statutory power of sale in relation to the Suit Property.

d) Through, Coulson Harney Advocates, the 1st Defendant issued a notice to sell dated 21st May 2015 to the 4th Defendant (and copied to the 3rd Defendant, Lucyline Kanyua Mutindwa and the County Government of Tharaka Nithi). The foregoing notice to sell was issued in accordance with section 96 of the Land Act, 2012 and sent to its recipients by way of registered post;

e) The notice to sell was copied to Lucyline Kanyua Mutindwa in her capacity as the spouse of the 4th Defendant residing on the Suit Property.

f) Following the issuance of the notice to sell, the 1st Defendant did not receive any proposal for payment, response or acknowledgment from the 3rd Defendant, the 4th Defendant or Lucyline Kanyua Mutindwa;

g) Following the Expiry of the notice to sell, the 1st Defendant instructed Muga Auctioneers and General Merchants (“the 2nd Defendant”) to issue the requisite statutory notices and advertisements and sell the Suit Property by public auction. I note from the Supporting Affidavit that the issuance by the 2nd Defendant of the requisite statutory notices has led to the filing of this case.

Annexed hereto as Exhibit SI 8 are true copies of the statutory notice dated 3rd February 2015 and the notice to sell dated 21st May 2015.

20. I confirm that the Notification of Sale and the 45 days Redemption Notice annexed to the Supporting Affidavit asExhibits EK1 and EK2 are statutory notices issued by the 2nd Defendant on behalf of the 1st Defendant in pursuance of the 1st Defendant’s statutory power of sale. It is clear from the said notices that as at 7th July, 2015, the amount owed to the 1st Defendant was a sum of Kshs.38,222,227. 94, which continued to accrue interest.

21. The 1st Defendant and its representatives have never heard of, encountered or interacted with the Plaintiff herein in relation to the Suit Property or any of the matters herein. The only spouse of the 4th Defendant that is known to the 1st Defendant is Lucyline Kanyua Mutindwa.

22. In view of the matters set out above, I verily believe that-

a) The Charge dated 7thAugust, 2012 is valid and complies with all laws applicable in Kenya;

b) The 1st Defendant is entitled to exercise its statutory power of sale in relation to the Suit Property and it has complied with all statutory requirements for exercising the said power;

c) The 4th Defendant’s spouse residing on the Suit Property, Lucyline Kanyua Mutindwa, has been served with a copy of a notice to sell as required by Section 96 of the Land Act, 2012;

d) The Plaintiff is not a spouse of the 4th Defendant and that she does not reside on the Suit Property.

23. Further to the above, I verily believe that the Application and this suit in general is a ploy to delay the 1st Defendant’s right to recover of (sic) the sums owed to it pursuant to the Charge.

24. In view of the above, I verily believe that the Application is without merit and ought to be dismissed with costs.

25. I swear this affidavit in opposition to the Application.

26. I make this affidavit from facts within my knowledge and from information and belief, sources and grounds whereof have been disclosed.

27. I have reproduced the above two affidavits because in their submissions the parties have, by and large, postulated the issues raised in the affidavits.

28. The parties canvassed the application by way of written submissions.

29. It is submitted for the plaintiff that she is the 1st wife of the 4th defendant and that she and her son live on Land Reference No. CHUKA/TOWNSHIP/39 which is claimed to be the matrimonial home of the plaintiff.

30. The plaintiff’s submissions state that: “it appears that the 4th defendant also took a 2nd wife LUCYLINE KANYUA MUTINDWA who also happens to have been blessed with one child.” The submissions state that the two wives live in separate houses BUTon the same parcel of land.

31. The plaintiff’s submissions say that the 4th defendant and the 2nd wife are the only Directors and Share-holders of a Company known as UNITED BROTHERS CAMPS LTD. It is said that the Company through which the 3rd defendant and the 4th defendant took a loan from the 1st defendant took it without obtaining the spousal Consent of the plaintiff.

32. The plaintiff’s submissions state that section 79(3) of the Land Act has made it mandatory for the consent of a spouse residing on the matrimonial property to be obtained before a charge can be made valid. For this proposition, the case of PAMELA I MBUKO NJARO AND ANOTHER VERSUS JOSEPH VUTITA NJARO AND ANOTHER [KAKAMEGA ELC CASE NO.78 OF 2014. NAIROBI CIVIL CASE NO.433 OF 2003 IS ALSO PROFFERED.

33. The plaintiff’s advocate categorically opines that the apposite charge is invalid by application of the relevant law.

34. The plaintiff’s advocate says that she has a prima facie case because for lack of spousal consent, there is no charge and for this reason the sale of the apposite land must be stopped.

35. The plaintiff’s advocate goes on to argue that there would be irreparable injury, as if the apposite land was sold, her matrimonial home would not come back. And for this reason also, it is argued that the balance of convenience tilts in favour of the plaintiff.

36. The plaintiff has proffered the following authorities in support of her propositions:

(a) Section 79 of the Land Act, No.6 of 2012

(b) Pamela Imbuki Njaro and another versus Joseph Vutita Njaro and another H.C ELC No.78 of 2014 (Kakamega)

37. The 1st defendant’s submissions give a summary of the salient facts. I do not find the need to restate them as they more or less reflect the position contained in the 1st defendant’s replying affidavit.

38. The 1st defendant says that the debt owed by the 3rd defendant as at 7th July, 2015, stood at Kshs.38,222,227. 94

39. The 1st defendant asserts that all the required processes were followed before the suit land was advertised for sale.

40. The 1st defendant argues that the plaintiff has not demonstrated presence of the 3 principles necessary for the grant of a temporary injunction as enunciated in the case of Giella versus cassman Brown [1973] EA 358 which are:

(a) the applicant must demonstrate that she has a prima facie case with a probability of success;

(b) an injunction will not issue unless the applicant will suffer irreparable harm or damage which cannot be adequately compensated by an award of damages, and

41. The defendant opines that the principles for Grant of an interlocutory order should be considered sequentially and proffers the case of Nguruman Limited V Jan Bonde Nielsen & 2 Others, Civil Appeal No. 77 of 2012 Nairobi for this proposition. He cites the court as stating:-

“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and states 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.”

42. The 1st defendant submits that although the plaintiff claims that she is the wife of the 4th defendant and she has a child with him, there is no proof provided by the either the plaintiff or the 4th defendant that they are married. The 1st defendant says that the only purported evidence of a marriage between the plaintiff and the 4th defendant is the Birth Certificate of David Mwema who is alleged to be a child of the Plaintiff and the 4th defendant. The 1st defendant opines that even assuming that the Plaintiff and the 4th defendant have a child together, the birth certificate of the child is not proof of a marriage.

44. The 1st defendant says that Section 59 of the Marriage Act clearly sets out that the only ways through which marriage can be proved in Kenya are:

(a) a certificate of marriage issued under the Marriage Act or any other written law;

(b) a certified copy of a certificate of marriage issued under the Marriage Act or any other written law;

(d) a certified copy of an entry in a register of marriages, maintained under the Marriage Act or any other written law; or

(e) an entry in a register of marriages maintained by the proper authority of the Khoja Stia, Ith’nasheri, Shia Imam, Ismaili or Bohra Communities or a certified copy of such an entry.

45. The first defendant contends that the plaintiff has not presented any of the documents set out in section 59 of the Marriage Act. In support of this submission the 1st defendant proffers the case of EWM Versus EMK, HCCCC 33 of 2010, OS, Nairobi and Quotes the court as having held:

“In this case, the applicant asserts that she was married to the respondent. She neither in her court papers nor in oral evidence discloses the system of law under which the alleged marriage was contracted. There is, to my mind, no evidence that the applicant was married to the respondent. If they had contracted a statutory marriage, a certificate of marriage ought to have been produced to prove existence of the statutory marriage. If it was alleged that the parties had contracted a customary law marriage, then, by virtue of Section 51 of the Evidence Act, evidence should have been adduced to prove existence of the alleged customary marriage. If the applicant was asserting a marriage out of prolonged cohabitation, and wanted the court to presume marriage out of such cohabitation, then evidence geared to establish cohabitation from which marriage could be presumed ought to have been presented. The applicant merely asserted that she was married to the respondent and left it at that. With respect, that was not sufficient, even without any counter-pleading by the respondent. It is my view that the applicant has not established that she is or was married to the applicant at any one time. She alleges that they had a child between them. That by itself is neither here nor there. The fact that two people are parents of a particular child is not proof of marriage. In any event, the applicant did not lead any evidence which established that the alleged child was sired by the respondent or that he had assumed responsibility over him.”

46. The 1st defendant submits that the plaintiff had failed to proof existence of a marriage between herself and the 4th defendant. It also submits that she has failed to demonstrate that her matrimonial home is situated on the suit land. In support of this submission the defendant relies on the case of Stella Mokeira Matara Versus Thadeus Mose Mangenya and another – ELC No.209 of 2012 (Kisii) and quotes it as saying:

“The plaintiff placed no evidence before the court to prove that her matrimonial home is situated on the suit property. I do not think that the mere fact that one is married to a registered owner of a property qualifies such property to be a matrimonial home. Matrimonial home is defined in the Land Act, 2012 as “any property that is owned or leased by one or both spouses and occupied by the spouses as their family home”. A reading of section 79 (3) of the Land Act, 2012 gives me the impression that a home only qualifies to be termed a matrimonial home if the same is occupied by the spouses as such. The plaintiff had a duty therefore to demonstrate that the plaintiff and the 1st defendant occupied the suit properties as their family home. The plaintiff failed first, to show that there is a home on the suit properties and, secondly, that the plaintiff and the 1st defendant were occupying the alleged home on the suit properties as their family home.

Due to the foregoing, I am unable to find that the plaintiff has a matrimonial home on the suit properties. It is the matrimonial home that would have entitled the plaintiff to an overriding interest in the suit properties which interest would have imposed an obligation on the 1st defendant under the provisions of the law cited above to obtain the plaintiff’s consent before the suit properties were charged to the 2nd defendant.”

47. The 1st defendant submits that it undertook due diligence and confirmed that prior to, during and after preparation and execution of the Charge, Lucyline Kanyua Mutindwa and the 4th defendant were husband and wife and the person residing on the suit property. It asserts that on this basis, Lucyline Kanyua Mutindwa gave her spousal consent as required for the suit property to be charged to the 1st defendant.

48. The 1st defendant submits that for the above reason, the plaintiff has not demonstrated a prima facie case.

49. Regarding suffering irreparable damage, the 1st defendant says that the 3rd and 4th defendants willingly charged the property and knew that if they failed to pay the apposite loan, the charged property would be sold. It says that prior to the charge the suit land had been ascertained to have a commercial value of Kshs.29,000,000 when a valuation was carried out. The 1st defendant said that should the plaintiff win this suit, damages constituted an adequate remedy. It asserted that in the case of Andrew M. Wanjohi versus Equity Bank and Another, HCCC No.203 of 2005, Nairobi, the court held that damages are an adequate remedy as once a property is given as security, it becomes a commodity and is subject to sale.

50. On the balance of convenience, inter alia, the 1st defendant submits that as the 3rd defendant is in default for a lengthy period and it owed the 1st defendant a sum of Kshs.38,222,227. 94 as at 7th July, 2015 which amount continues to accrue interest, the balance of convenience tilts in its favour as it continues to suffer loss due to the 3rd and 4th defendants default to repay the money they borrowed from it.

51. The 1st defendant submits that the loan amount and applicable penalties and interest will exceed the value of the suit property and deny the 1st defendant to recover the amount owing. It says that it will suffer loss as a result. It laconically states that the balance of convenience favours it. It proffers the case of Andrew M. Wanjohi Versus Equity Building Society (supra) which held:

“In my considered view if the 1st and 2nd Defendants were restrained from selling off until the suit was heard and determined, there is a very real risk that the debt may outstrip the value of the suit property, as the borrower has never made any repayments for more than three years. That fact, coupled with the status of the 1st and 2nd defendants, persuades me that the balance of convenience is in favour of the said Defendants. If the property was sold, the Plaintiff can find other accommodation. And if it were finally held that the property should not have been sold, the 1st and 2nd defendants would be able to compensate the Plaintiff. In contrast, the stoppage of the intended sale by the charger would result in the continued growth of debt and thus exposing them to potentially substantial irrecoverable losses. I therefore find that provided the charge complies with all other legal requirements, he should be permitted to release thesecurity.”

52. The 1st defendant submits that the plaintiff’s application is an attempt to delay the execution of the terms of the apposite charge and thereby violate its right to exercise its statutory power of sale over the suit property.

53. The 1st defendant proffered the following cases in support of its various propositions:

i. GIELLA VERSUS CASSMAN BROWN & CO LTD [1973] E.A 358.

ii. NGURUMAN LIMITED (APPELLANT) AND JAN BONDE NIELSON AND 2 OTHERS, COURT OF APPEAL CA 77 OF 2012 – NAIROBI.

iii. EWM VERSUS EMK ALIAS JN – Nairobi HCCC 33 of 2013 (OS).

iv. STELLA MOKEIRA MATARA VERSUS THADEUS MOSE MANGENYA AND FAMILY BANK LIMITED – ELC 209 OF 2012 – KISII.

v. JULIUS MAINYE ANYEGA VERSUS ECOBANK KENYA LIMITED –NAIROBI HCCC 455 OF 2012.

vi. ANDREW MURIUKI WANJOHI VERSUS EQUITY BUILDING SOCIETY AND 2 OTHERS – NAIROBI HCCC 203 OF 2005.

vii. DAVIS NYANJUI NJEHIA VERSUS NATIONAL BANK OF KENYA LIMITED – HCCC 22 OF 2015 – NAKURU.

viii. CHATUR RADIO SERVICE AND PRONOGRAM LIMITED – COURT OF APPEAL (NAIROBI) CA NO.50 OF 1988.

ix. DANIEL KAMAU MUGAMBI VERSUS HOUSING FINANCE COMPANY OF KENYA LIMITED – HCCC NO.261 OF 2006 (OS).

54. I have carefully considered the pleadings, the submissions and the authorities proffered by the parties in support of their propositions. The authorities proffered by the parties are good law in their circumstances. But no circumstances are completely in congruence in any two cases.

55. Regarding the authorities proffered by the plaintiff, there is no dispute that section 79 (3) of the Land Act makes it mandatory for spousal consent to be obtained before a charge is executed that affects a matrimonial home. However, the case of Pamela Imbuka Njaro concerns a matter where there was only one spouse whereas in this case it is claimed that there were two spouses. The case of Rose Florence Wanjiru versus Standard Bank Ltd et al (op cit) largely concerned itself with determination of what is the core or essential contest of notice by pubic advertisement Under Order 1 rule 8 (2) of the CPR.

56. I find that the authorities proffered by the 1st defendant in support of its assertions are, by and large relevant to the issues being considered in this application.

57. Considering the relevant weight of the parties propositions, I find that those of the 1st defendant have more weight.

58. I find that the plaintiff has not demonstrated to the satisfaction of this court that she is the wife of the 4th defendant. Indeed, except for the Birth Certificate of David Mwema who she claims is their son with the 4th defendant, no other evidence was proffered.

59. The plaintiff has not satisfied this court that she has a matrimonial house on the suit property. She has proffered no evidence to that effect.

60. It is clear to me that the plaintiff does not stand to suffer irreparable loss not compensable by monetary damages, that she has not demonstrated a prima facie and that she has not demonstrated that the balance of convenience tilts in her favour.

61. Without insinuating that this is the case in this matter, I opine that the existence of multiple spouses, real or contrived, is an area that can be misused by unscrupulous people to defraud financial institutions. This is why it is necessary for courts to obtain prove that multiple spouses are real spouses. It is also necessary for such spouses to prove that there existed a matrimonial house on the suit land.

62. I also wish to debunk the notion that if an applicant at the interlocutory stage seeks orders which if not granted may negatively affect the final order sought in the plaint, then such orders should not be granted at the interlocutory stage. Prayer 3 in this application and prayer (c) in the plaintiff’s plaint seek to stop the sale of the suit property. I opine that the court’s hands cannot be fettered if it finds that an interlocutory prayer is not meritorious even though denial of that prayer will affect the status of a prayer in the plaint.

63. I agree with the 1st defendant and as was held in the case of Andrew M. Wanjohi versus Equity Building Society, supra, if the orders sought by the plaintiff are granted, the 1st defendant will be denied an opportunity to recover the amount it is owed by the 3rd and 4th defendants. The owed amount may overtime balloon into an irrecoverable colossal amount of money. As in business time is of the essence, such a scenario would not augur well for all concerned.

64. In the circumstances, this application is dismissed with the result that any extant interlocutory orders are vacated forthwith.

65. It is so ordered.

Delivered in open court at Chuka this 16th day of March, 2017

in the presence of:

CA: Ndegwa

Miss Njenga h/b Rimita for plaintiff

Kiongo h/b Coulson Harney for 1st defendant

Humphrey Mbabu Mbaka 4th defendant

P. M. NJOROGE,

JUDGE.