TOL v CMM [2022] KEHC 14926 (KLR)

TOL v CMM (Matrimonial Cause E009 of 2022) [2022] KEHC 14926 (KLR) (Family) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14926 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Matrimonial Cause E009 of 2022

MA Odero, J

October 7, 2022

Between

TOL

Plaintiff

and

CMM

Defendant

Ruling

1. Before this court is the Notice of Motion application dated 7th February 2022 by which the plaintiff/applicant TOL seeks the following orders:-“1. Spent.2. Spent3. That this Honorauble court be pleased to grant a temporary injunction restraining the Respondent, her servants and/or agents from transferring, charging, wasting, damaging or alienating and/or otherwise interfering with the matrimonial home being Mumwe Gardens Runda House No. xxxx, LR No. xxxx pending the hearing and determination of originating summons herewith.4. That an order be granted ordering the respondent to furnish the Applicant’s Advocates herein with the original Title Deed for Mumwe Gardens Runda House No. xxxx, LR No. xxxx for safe keeping pending the hearing and determination of this suit.5. That an order be granted allowing the Applicant immediate access to the Matrimonial property being Mumwe Gardnes Runda House No. xxxx, LR. No. xxxx for purposes of collecting his personal belongings.6. That costs of this application be provided for.”

2. The application which was premised upon article 45(3) of the Constitution of Kenya, sections 2,6,7,9 and 17 of the Matrimonial Property Act, order 40 rules 1, 2 and 3 of the Civil Procedure Rules, sections 1A, 1B 3A and 63 of the Civil Procedure Act and all enabling provisions of the law was supported by the Affidavit of even date and the Supplementary Affidavit dated 12th May 2022 sworn by the applicant.

3. The respondent CMM filed grounds of opposition dated 14th February 2022 and also filed a replying affidavit dated 25th March 2022 opposing the application. The matter was canvassed by way of written submissions. The applicant filed written submissions dated 19th May 2022. The respondent despite being accorded an opportunity to do so failed to file any written submissions.

Background 4. The applicant and the respondent are a couple who had cohabited for a period of about seventeen (17) years. The couple bore one child together - a son who is now an adult.

5. On 9th April 2020 the respondent filed a petition in the Chief Magistrates court seeking divorce. The learned trial Magistrate Hon DM KivutI Principal Magistrate in a judgment delivered on 1st November 2021 found that a valid marriage existed between the couple and secondly proceeded to allow the petition for divorce. The trial magistrate made the following final orders-“(a)A declaration be and is hereby issued that a marriage existed as between the Petitioner and the respondent and the same is hereby dissolved. A decree nisi will issue immediately and be made absolute within 30 days.(b)There shall be no orders as to costs.”

6. Following dissolution of their union the applicant filed in the High Court an originating summons dated 7th February 2022 seeking the following orders:-“1. That the Honourable court declare that the matrimonial property being Mumwe Gardens Runda House No xxxx, LR No xxxx (the property) was acquired by the sole funds and efforts of the plaintiff during their marriage but it owned jointly by the plaintiff and the defendant.2. That the said matrimonial property was acquired through the sole contribution of the plaintiff.3. That an order be issued declaring that 50% or such other or higher proportion of the property aforesaid is held by the defendant in trust and for the beneficial interest of the Plaintiff.4. That the property aforesaid be sold off and the net proceeds be shared equally between the plaintiff and the defendant or settled in proportions aforesaid or as the court may order.5. That an order be granted ordering the defendant to furnish the plaintiffs Advocates herein with the original Title Deed for Mumwe Gardens Runda House No xxxx,LR No xxxx for safe keeping.6. That an order be granted allowing the Plaintiff immediate access to the matrimonial property being Mumwe Gardens Runda House No xxxx, LR No xxxx for purposes of collecting his personal belongings.7. That the cost of the suit be provided for.”

7. Contemporaneously with that originating summons, the Applicant filed this present application. The Applicant avers that the parties still have joint ownership of the property known as Mumwe Gardens Runda House No. xxxx on L.R. No. xxxx (herein after referred to as the ‘suit property’), which the applicant states was acquired during the course of their marital union and was the matrimonial home.

8. The applicant states that he has made attempts to engage the respondent in discussion on how to divide the matrimonial property but the respondent has been non-responsive. That he has established from a reliable source that the respondent is trying to secretly sell/dispose of the suit property and possibly leave the country without the consent and/or knowledge of the applicant.

9. The applicant contends that the suit property was purchased solely by himself using his life savings during the pendancy of the marriage. The applicant is apprehensive that unless restrained by the court the respondent may move to dispose the suit property to his detriment causing him irreparable loss. Accordingly, the applicant prays that the suit property be preserved pending the hearing and determination of the main suit. The applicant also prays to be allowed access to the suit property in order to remove his personal effects therefrom.

10. As stated earlier the application was opposed. The respondent in her replying affidavits categorically denied the allegation that she intended to secretly dispose of the suit property. The respondent averred that she singlehandedly purchased the suit property and claims that the applicant made no financial contribution whatsoever. That after purchase she made several improvements to the property which included constructing a swimming pool thereon.

11. The respondent states that the applicant owns several homes in Germany a Glass factory which was acquired during the course of their marriage as well as three (3) homes in Malindi all of which he has omitted to include in the list of matrimonial properties.

12. The respondent further states that the order barring the applicant from the suit property was made to protect her from domestic violence. She insists that the applicant has already been granted access to the suit property at which time he collected all his personal items supervised by both Advocates. The respondent concludes that this application has been brought in bad faith and urges the court to dismiss the same in its entirety.

Analysis and Determination 13. I have carefully considered the application before this court the replying affidavit as well as the submissions filed by the parties. The only issue for determination is whether the interim injunctive orders being sought by the applicant ought to be granted.

14. The grounds upon which an injunction may be granted were set out in the case of Giella vs Casman Brown [1973] EA as follows:-“The conditions for the grant of an interlocutory injunction are well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

15. The definition of a prima facie case was given in Mrao Ltd vs First American Bank of Kenay Ltd & 2 others[2003] eKLR as follows:-“In civil cases a prima facie case is a case in which on 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.

16. At this stage the court is not required to made conclusive findings on the matters in issue. All that the court is required to do is to determine whether there exists a ‘prima facie’ case warranting issuance of the interlocutory orders. In Silvester Momanyi Maribe –vsGuizar Ahmed Motari&another [2012] eKLR Hon Justice Odunga (as he then was) stated as follows:-“In determining this application, I am well aware that at this stage the court is not required to make any conclusive or definitive findings of fact or law. Most certainly not on the basis of contradictory affidavit evidence or disputed propositions of law and that in an application for injunction although the court cannot find conclusively who is to be believed or not, the court is not excluded form expressing a prima facie view of the matter and the court is entitled to consider what else the deponent to the supporting affidavits has stated on oath which is not true.”

17. It is common ground that the parties herein were a married couple whose union has since been dissolved by a court of law.

18. The applicant’s case is hinged upon the fact that the suit property was the ‘matrimonial home’ where the couple resided during the pendancy of their union. Section 2 of the Matrimonial Act defines a ‘Matrimonial home as follows:-“‘Matrimonial home’ means any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home and includes any other attached property.”

19. Neither party has denied the fact that the suit property was the matrimonial home. Annexed to the applicants supporting affidavit dated 7th February 2022 is a copy of the Title Documents for the suit land which indicates that the property was on 1st January 2014 registered in the names of both the applicant and the respondent. During this period, the marriage between the parties was subsisting.

20. The applicant claims that he is apprehensive that the respondent may secretly dispose the suit property without his consent and/or approval. It is difficult to see how the respondent would be able alone to dispose of a property, which is jointly owned.

21. Each party claims to have singlehandedly purchased the suit property. The question of distribution of matrimonial property is yet to be decided. The determination of what share, if any, is due to the applicant can only be determined after a full hearing of the suit.

22. All in all I am satisfied that a prima facie case has been established. I deem it prudent to order the preservation of the suit property pending determination of the main suit.

Conclusion 23. Finally and in conclusion, this court makes the following orders:1. The respondent her servants and/or agents be and are hereby restrained from transferring, leasing, charging, wasting, damaging or in any other manner whatsoever alienating the property known as Mumwe Gardens Runda House No xxxx, LR No xxxx pending the hearing and determination of originating summons dated 7th February 2022. 2.Prayer No 4 of this notice of motion is declined.3. An order is hereby made granting the applicant access on a date to be agreed upon between the parties and their Advocates to the suit property to allow him retrieve and remove his personal effects only.4. The applicants to access the suit property, accompanied by his Advocate and in the presence of the Respondent and her Advocate.5. This being a family matter each party is to meet its own costs.

DATED IN NAIROBI THIS 7TH DAY OF OCTOBER, 2022. ................................MAUREEN A. ODEROJUDGE