F I v A H B & National Bank of Kenya [2014] KEHC 5721 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

LAND AND ENVIRONMENT  CASE NO. 37 OF 2012

F I …..................................................................... PLAINTIFF

VERSUS

A H B..................................DEFENDANT/RESPONDENT

NATIONAL BANK OF KENYA ….....................2ND DEFENDANT/RESPONDENT

RULING

1.  By a Notice of Motion dated 20th November 2013 and brought under Section 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 40 Rule 1 of the Civil Procedure Rules, the Applicant seeks for  orders of  temporary injunction  restraining the Defendants  from selling off,  interfering, wasting or disposing  of L.R. NO. [particulars withheld]pending  hearing and determination of thissuit.

2. The Motion is supported by the grounds on the face of it and an affidavit sworn by the Applicant. One of the grounds raised by the  Applicant is  that she contributed money for the purchase of the plot. The plot was developed under her care and they moved into the plot   in 2003.  She depones that she now lives in fear as the 1st Defendant has threatened to dispose of this plot which is her matrimonial home.

3.  The application is opposed by both Respondents. The 1st Respondent through his replying affidavit said  that she divorced the Applicant in  2007 and annexed a divorced certificate.  He also depones that the children of their marriage are adults, two working, two putting up  with him and one living with the Applicant.  That the Applicant  has no  locus to  warrant the injunction orders sought.

4.    The 2nd Respondent  in opposing the application states that  1st Respondent defaulted in repaying the loan over the charged property and the arrears stand at Kshs. 1,963,2581/85. When the loan was offered as security, the 1st Respondent was the sole proprietor. The property has been advertised  for sale by public auction and the 1st Respondent has not contested nor liquidated the outstanding loan.  The 2nd Respondent urged the court to decline the orders sought.

5.   I have perused the pleadings together with the submissions filed. From the pleadings, it is not in dispute the Applicant and the 1st   Respondent lived on this plot. It is also not in  dispute that the Applicant still lives on this plot although they are now divorced with the 1st Respondent.  There is also no dispute  of the outstanding loan   owing to the 2nd Respondent.

6.  The  1st Respondent has no objection to the  suit property being sold  to  settle the loan.  His argument being he used the money for school fees, their children are all adults  and they are divorced  with the Applicant.  The Applicant  however contests the sale for two reasons; first she contributed money  to purchase the plot and  secondly because this   is her matrimonial home.

7.   I am alive to the principles  to be considered in granting of injunctions as enunciated in the case of Giella vs. Cassman Brown. I am also aware of the settled principle on stopping  chargees from realizing security that once a a property is charged,  it becomes a commodity for sale and  loses its sentimental value attached to it by the parties. See Augustine Kibet vs. Savings and Loan (K) Ltd.

8.  Taken   all  matters in consideration it seems the Applicant may lack locus to warrant the injunction as pleaded by the 1st Respondent.  However she raised the issue of rights over matrimonial property.  That she contributed money to purchase the  suit property – a fact  not  denied by the 1st Respondent.  The 1st  Defendant  charged the property in  2010 after their divorce yet she was living on the property.  This in my view gives her a  slim chance that she has shown a prima facie case.  It would be fair to give her a hearing to establish   whether she was entitled to a share of the suit property.

9.  The 1st Respondent in his grounds states the property was acquired after  he divorced the Applicant. The search certificate shows the contrary that  the suit  property was acquired in the year 2000.

10.   I am therefore satisfied the application for injunction is merited for the reason  given in paragraph 8 supra.  The same is allowed granting the Applicant temporary orders of injunction restraining  the Defendants from selling off, wasting away or in any other manner interfering with the suit parcel  [particulars withheld]pending the hearing and determination of this suit.Costs shall be in the cause.

DATED, SIGNED and DELIVERED this   31st day of March  2014.

A. OMOLLO

JUDGE.