1. Vide a Notice of Motion application dated 18th December 2023, pursuant to Sections 6,14 and 17 of the Matrimonial Property Act, Rules 4-7 of the Matrimonial Property Rules, 2022, Order 40 of the Civil Procedure Act, Section 26,27 of the Mental Health Act, Article 48, 159 (2) (d) of the Constitution, 2010 and all enabling provisions of the law, the Applicant is seeking orders of injunction and/ or conservatory orders pending the hearing and determination of the issue of distribution of matrimonial property upon completion of the Kisumu Kadhi’s Court Divorce Cause No. E05 of 2023.
2. These prayers are in the Applicant’s Notice of Motion application dated 18th December 2023 which was supported by an Affidavit sworn on even date by Ahmed Abdallah Saad, the Applicant herein. The Applicant averred that he was duly appointed as a guardian and manager of S.M.O in the High Court at Kisumu Application No. E10 of 2023 under the Mental Health Act. The Applicant and Respondent solemnized their Islamic marriage in Busia District, Busia County on 29th March 1986 in accordance with the Islamic Law and that since 1986, they have lived together as man and wife in Kisumu County. The couple were blessed with 2 children and during the subsistence of their marriage they jointly acquired a huge portfolio of properties. He deposed that in 2007, the Respondent cruel treatment, neglect and desertion of the Applicant and their children resulted in a divorce cause in Kisumu Kadhi’s Court Divorce Cause No. E05 of 2023 and as a result of the said cruel treatment the Applicant developed schizoaffective disorder that gravely contributed to the deteriotion of her mental health. Subsequently, the Respondent evicted the Applicant from their matrimonial home and has since refuted providing for her care and maintenance. The Respondent ceased all crucial documents belonging to S.M.O and even denied their children access to the same. Furthermore, the Respondent proceeded to dispose off two motor vehicles without the consent of the guardians of the Applicant and the Applicant is apprehensive that he may dispose the rest of their jointly acquired properties if the High Court fails to intervene.
3. Lastly, the Respondent in total disregard of the interest of the Applicant and without consent of her guardians he has proceed to advertise the lease of 2 parcels of land which forms part of their matrimonial property and has attempted to lift cautions on the said properties in total disregard of S.M.O beneficial interest over the said suit properties.
4. The Respondent did not file any response to the motion application.
5. Vide Court directions issued on 7th October 2024, the application was canvassed by way of written submissions. Both parties complied.
6. I have considered the application as well as the Supporting Affidavit thereto. I have also considered the submissions of learned counsels. I find the only issue necessary for determination is whether this Court should grant the sought prayers.
7. An order of conservatory order is an equitable remedy which can be issued if a party is seeking it satisfies the Court that its rights under the Constitution or any other law have been infringed or there are threats to them being infringed. That principle was well captured in the case of Centre for Rights Education and Awareness (CREAW) and Anor. versus Speaker of the National Assembly & 2 Others [2017] eKLR where the Court held;
“A party who moves the Court seeking conservatory orders must show to the satisfaction of the Court that his or her rights are under threat of violation, are being violated or will be violated and that such violation, or threatened violation is likely to continue unless a conservatory order is granted. This is so because the purpose of granting a conservatory order is to prevent violation of rights and fundamental freedom and preserve the subject matter pending the hearing and determination of a pending cause or petition…’’
A conservatory order would normally issue where there is real impending danger to violation of the Constitution or fundamental rights and freedoms with a consequence that a petitioner or the public at large would suffer prejudice unless the court intervenes and grants Conservatory orders. In such a situation, the Court would issue a conservatory order for purposes of preserving the subject matter of the dispute.”
8. In Gitaru Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, the Supreme Court of Kenya discussed the nature and purpose of conservatory orders, emphasizing their role in maintaining the status quo and protecting the rights of parties involved in legal disputes.
9. The legal issue herein is whether conservatory orders can be granted to preserve the subject matter of intended proceedings for the distribution of matrimonial property.
10. Conservatory orders are judicial remedies aimed at preserving the substratum of a matter before the Court. Flowing from the above, the key principles to be satisfied before a grant of conservatory order are; -
a) An applicant must demonstrate that he/she has a prima facie case with a high chance of success and that unless the court grants the conservatory order sought there is real risk that prejudice will be occasioned as a result of violation or threatened violation of the Constitution.
b) That unless the conservatory is given, the petition will be rendered nugatory or academic.
c) The public interest is considered before grant of the conservatory order.
11. The first and key test to be considered by a Court before issuance of conservatory order is demonstration of a good case or a prima facie case. So, the question I ask myself in this matter is, has the Applicant established a prima facie case against the Respondent? In the case of Mrao Ltd versus First American Bank Ltd & 2 Others [2003] eKLR the Court made some useful observations as follows: -
“So what is a prima facie case? I would say that in civil cases it 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 as 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. The evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard which is higher than an arguable case.”
12. The Applicant in this instant case, avers that there exists a divorce cause at the Khadi’s Court, Kisumu Kadhi’s Court Divorce Cause No. E05 of 2023, and in the said cause the issue of division of matrimonial property is not pleaded as an issue for determination and the Applicant is stern on pursuing the same upon completion of the said divorce proceedings.
13. The Applicant has raised a fundamental issue involving its Constitutional rights that reinforce the principles of equality and protection of property rights within marriage pursuant to Article 45 and 60 of the Constitution of Kenya, 2010. The Applicant avers that the Respondent has already commenced the disposition of some of the matrimonial properties that were jointly acquired and that the Respondent took illegal custody of the Applicants crucial documents and denied their children access top the same. Article 45 Provides for the recognition and protection of matrimonial property, emphasizing the need for equitable distribution and Article 60 Promotes the fair and equitable distribution of land and property, including those acquired during marriage.
14. Having set out the clear provisions of the law, and there being no response by Respondent to consider. It is elaborate in respect to the Applicant’s claim that the same is uncontested.
15. There is something else which the Applicant stated in support of this application which has caught my eye. The Applicant avers that avers that S.M.O, the wife to the Respondent suffers from schizoaffective disorder which has considerably deteriorated her mental state and she has become incapable of taking care of herself. Furthermore, the Respondent evicted here and her children from their matrimonial home, and took it a notch higher by taking forceful possession of her crucial documents and has denied her children any kind of access to the same.
16. In matrimonial property disputes, the Matrimonial Property Act, 2013, provides a framework for the equitable distribution of property acquired during the marriage. Section 7 of the Act stipulates that the property should be divided based on contributions made by each party, and conservatory orders can help ensure that the property in question is not further disposed of or altered before the Court makes a determination.
17. It is in that context that I find merit in this application. The same is allowed in its entirety and as prayed. Each party to bear it’s own costs
18. Orders accordingly.
Dated and delivered at Kisumu this 7th day of February 2025.
In the presence of :
N/A………………………………... for Applicant
N/A…………………………..……. for Respondent
Diana Court Assistant