H.A.A v A.A.O [2013] KEHC 5576 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MALINDI

CIVIL SUIT NO. 18 OF 2012 (OS)

H A A …...........PLAINTIFF/APPLICANT

VERSUS

A A O ….......DEFENDANT/RESPONDENT

RULING

The parties herein married under Islamic law in the year 2005 and subsequently cohabited as man and wife. There  are three issues of the marriage aged roughly between 2 and 7 years.  Following differences between the spouses, the wife H. A. A. the applicant herein, instituted Divorce Cause No. 18 of 2010 before the Kadhi's court in Nairobi, alleging desertion by the respondent.  The cause is yet to be determined.

On 17th February, 2012 the applicant filed an Originating Summons under Order 37 rule 1, 14, 15 of the Civil Procedure Rules and Section 17 of the Married Women's Property Act of 1882, which seeks declarations to the effect that movable and immovable assets listed therein are joint properties of the applicant and A. A. O., the Respondent.  Further that the said asserts be ordered sold and the net proceeds shared equally between the parties.

Contemporaneously, the applicant filed a Notice of Motion under certificate  of urgency seeking an interim injunction to restrain the respondent from inter alia, selling alienating, charging mitigating, encumbering or in whatever manner interfering with the listed moveable and immovable properties pending the determination of the suit.  The list includes two parcels of land in Malindi (particulars witheld) nine motor vehicles, two bank accounts and shares in (particulars witheld).

The application is supported by the two affidavits of the applicant and is premised upon 10 grounds which are set out seriatim hereunder:

a)  That the respondent and the applicant are lawfully married as husband and wife

b)  That the applicant has filed a divorce cause in the kadhi's court being civil suit no. 18 of 2010.

that during the subsistence of the marriage the parties herein have acquired various properties and assets mostly registered in the name of the respondent.

That the properties and assets that form the subject matter of the suit herein are all held in trust for the applicant by the respondent herein.

e)  That the applicant having been married ot the respondent and the properties that the subject matter of the suit herein having been acquired jointly during the subsistence of the marriage between the parties herein, the applicant is in law entitled to her rightful share.

f)  That the properties and assets that are held in trust by the respondent on behalf of the applicant are both in Kenya and outside the country.

g)  That the respondent packed his things and deserted the applicant with the children and proceeded to an unknown location.  The respondent further informed the applicant that he was to fly out of the country.

h)  That the applicant has a strong prima facie case with a high probability of success.

i)That it is only fair and equitable that the court do issue the prayers the applicant is seeking herein pending the hearing and final determination of the suit herein and in order to preserve the status quo herein.

j)  That most of the evidential material in support of the application are locked and held by the respondent and the applicant had been denied access to.”

In response the respondent filed a replying affidavit.  The gist thereof is that he formed (particulars witheld) and gave 10% shares to the applicant, but in any event the company “never came into operation and has been defunct.”  He denied that the applicant has contributed to the acquisition of any of the listed properties.  Specifically, he alleges that plot no.(particulars witheld) Malindi is jointly owned by himself and an Italian national, while plot no. (particulars witheld) is his individual property, which, like the vehicles were properties he acquired without any financial contribution from the applicant.  He claims that the vehicles (particulars witheld) and (particulars witheld) are jointly registered between himself and the Imperial Bank of Kenya as financiers.  He will therefore be unable to service the loan or even provide for the applicant and the issues of the marriage if the two bank accounts are frozen.

With respect to the respondent's assertions concerning the land parcels and the company business, the applicant replied by filing a supporting affidavit with annextures.  The latter to show that the business was operational.  The applicant also challenged the alleged joint ownership of the suit property plot no. (particulars witheld) Malindi.

The parties agreed to dispose of the application by way of written submissions. The applicant's counsel submitted that the applicant has satisfied the conditions for the grant of an interim injunction as prescribed in Giella vs Cassman Brown (1973)EA.She argued that in light of the divorce proceedings and the risk of the properties being dissipated the applicant is entitled to an interim injunction pending determination of the Originating summons.  In this regard she referred the court to similar cases where such orders had been granted, namelyShah vs Shah Civil Appl. No. NAI 73 OF 2000(UR) and Muthembwa vs Muthembwa Nairobi Civil Appeal No. 74 of 2001.

The Respondents' submissions challenged the jurisdiction of the court, pointing out that the subject marriage was contracted under Islamic law.  The respondent argues that the application does not satisfy the conditions in Order 40 rule 1 and 2 of the Civil Procedure Rules.  Finally, that the applicant while seeking an equitable remedy is guilty of material non-disclosure and has not come to court with clean hands.

With the leave of court, the applicant responded to the submissions on jurisdiction by filing further submissions. She called to her aid the well known decision in Essa v Essa (1996) EA 53.

Upon considering all the material canvassed before me, I take the following view of the matter. The question of jurisdiction in a matter such as the present one was settled in Essa vs Essaand further restated in Mereka vs Mereka [2004] eKLR where the Court of Appeal reviewed a number of previous decisions on the matter. As the learned judge in Amina O. Abdulkadir v Ravindra N. Shah [2006] eKLR found, I so find that this court is clothed with the necessary jurisdiction as the Married Women Property Act of 1982 applies to Islamic Marriages.

There is no dispute that the properties listed in the application are in the respondent's name.  He claims to have acquired them without any contribution from the applicant in the duration of the marriage.  Even where he claims to co-own the plot with a foreigner, he admits to have certain ownership rights.  He is in control of the bank accounts.  His allegations that the business Lunar Transfers & Safari Ltd. is moribund appear doubtful in light of the annextures to the applicant's supplementary affidavit.  These are on the face of it business records related to the said company.  Whether or not the applicant contributed to the acquisition of the properties and the extent thereof will be a question to be determined at the trial.

It has been contended by the respondent that there is no basis for the applicant's fear that the respondent will alienate, sell or otherwise deal with the properties in a manner adverse to her claims. Looking at the facts disclosed before me, it is evident that the parties are already fighting over the motor vehicles and that the respondent has seemingly entered into an agreement, which if valid, purports to transfer plot no. (particulars witheld) to a company called (witheld) (see his annexture AAO 2).  The respondent alleges the company called (witheld) never took off, but the Applicant has tendered what appears to be evidence that it is a going concern at least as at 2011.

The law and the facts are in my view in the applicant's favor.  She will suffer irreparably if after the divorce, the alleged marriage property has been dissipated.  I am satisfied that this application meets the threshold in Giella v Cassman Brown.  I will therefore grant prayer 1 of the application with the following clarifications.  In respect of item (a) the order is with regard to whatever is the respondent's legal portion of the subject matter at present.  The items i, j, k are deemed to be in reference to motor vehicles and not motor cycles, as per the respondent's statements. The injunction also applies to the respondent's shares and the applicant's shares in (particulars witheld) Ltd.

I however think that granting the prayer sought in respect of the bank accounts will be onerous and may result in crippling the respondent's business operations.  Rather than grant an injunctive order that will cause these to be frozen, I will grant a temporary order requiring that the respondent does render to the court accounts in respect of all transactions in the said bank accounts from the 17th February, 2012 todate within 30 days of today's date, and to continue to do so on a quarterly basis, until the case is heard and determined.

Costs will be in the cause.

Delivered and signed at Malindi this 3rd day of June, 2013in the presence of Mr. Angima for plaintiff, respondent present in person.

Court clerk – Evans

C. W. Meoli

JUDGE