'
INTRODUCTION
The appeal before this Court emanates from the decision of the trial court rendered on the 27th February, 2023 dismissing the Appellant''s application seeking temporary injunction pending the hearing and determination of the main suit.
APPELLANTS CASE
The trial court in its ruling did indicate that it considered the application, the responses to the application, as well as the submissions filed by parties but instead of delving into the merits and/or principles relating to the grant or denial of injunctive reliefs as established in the Giella vs Cassman Brown case, it went out of the issues pleaded and made a determination touching on a technicality based on whether documents on the court''s records can be considered as annexures and ended up dismissing the Application.
The appellant contends that not a single established principle as to the grant of injunctions was considered before taking the drastic step in dismissing the Notice of Motion dated 29/8/2022 summarily.
The 1 st Respondent sought to commence the exercise of its statutory power of sale against the Appellant''s property consisting of all that piece of land known as LR NO. THIKA MUNICIPALITY BLOCK 21/1923 registered in the names of his wife JERUSHA WANJA NJANGAI. At the trial court the Appellant sought to stay the actual sale, further advertising for sale, alienation, disposing off, transfer, registration and/or in any other manner completing conveyance of any sale concluded by auction or private treaty pending determination of the main suit.
That is the application that the lower court dismissed.
The appellant has set out the following issues for determination: -
Whether decision rendered by the trial court amounted to substantive
justice?
b.) Whether the Appellant was entitled to the Injunctive Orders sought at the trial court?
On Whether decision rendered by the trial court amounted to substantive justice, the appellant has submitted that the Appellant approached the trial court purposely seeking justice in terms of what he considered as an irregular and illegal process commenced by the Respondents.
According to the applicant the process initiated by the respond was aimed at dispossessing him of his matrimonial property.
The trial court in making its considerations before rendering its decision did look at the Supporting Affidavit filed an formed an opinion that the documents referred to in the Supporting Affidavit and the List of Documents clearly marked and verified through a Verifying Affidavit could not in the circumstances be considered as annextures.
The appellant further submitted that the Court in making its decision focused on the provisions of Rule 9 of the Oaths and Statutory Declarations Rules and it completely disregarded other components of the laws of the land and their applicability. The appellant did not however cite or specify the laws that the lower court disregarded.
The appellant further went on to submit that the lower court relied on procedural technicality to dismiss an application at an interlocutory stage and while at it denied justice to the appellant.
It is not contested that all the documents referred to and described as forming evidentiary and probative value by the Appellant were actually filed and marked as available in the Court''s records, yet still the trial court failed to consider their import and purpose.
The appellant further submitted that statutory provisions, have to be read in broad terms and applied conjunctively rather than exclusively in order to afford uniformity of decisions.
Rule 9 of the Oaths and Statutory Declarations Rules provide that: -
"All exhibits to affidavits shall be securely scaled thereto under the seal of the commissioner, and shall be marked with serial letters of identification".
The appellant maintains that a reading of Section 1A and 1B of the Civil Procedure Act confers powers to court to look at substance and not technicalities in reaching its decision in any matter under consideration.
Order 19 Rule 7 of the Civil Procedure Rules, 2010 provides that: -irregularity in form of affidavit .
The court may receive any affidavit sworn for the purpose of being used in any suit notwithstanding any defect by misdescription of the parties or otherwise in the title or other irregularity in the form thereof or on any technicality.
The argument by the appellant therefore is that the trial court did not take into account the clear provisions of this rule thus its decision amounted to miscarriage of justice.
The appellant urges this court to find that the interpretation adopted by the court below was too restrictive and effectively it went against the express provisions of the Constitution under Article 159(2) (d) which provides ;-
"In exercising judicial authority, the Courts and tribunals shall be guided by the following principles;-
(d) justice shall be administered without undue regard to procedural technicalities".
The appellant maintains that the defect alluded to by the court amounted to a mere technicality and the court ought not to have based its decision on the same without considering the merits of the application.
The appellant has extensively submitted that the purpose and import of such provisions under our laws were aimed at avoiding occasioning injustice and/or prejudice to a party by striking out their Affidavit because of a defect in form.
The appellant holds the view that the defect highlighted by the lower court touching on the exhibits was not one that could lead to the application for injunction being declined.
To advance the argument that the defect was one that could be ignored, the appellant placed reliance on the decision of the Learned Judge F. Gikonyo in the case of Litein Tea Factory Company Limited & another v Davis Kiplangat Mutai & 5 others [2015] eKLR where the Court upheld an Affidavit filed in Court as being competent and while holding that a mere irregularity is a matter of form rather than substance and such technicalities were depreciated by Article 159 of the Constitution.
In coming up with his decision, the Learned Judge did breakdown the components of Rule 9 of the Oaths and Statutory Declarations by stating;
"...first of all, I have stated that the rules draw from the Act. The word "shall" in the rules is also not to be interpreted to be mandatory but rather directory. This approach is founded on the cannons of statutory interpretation of the laws as expounded by Ringera, J, (as he then was) in the case of Milimani HCCC No. 462 of 1997, Standard Chartered Bank Limited Vs. Lucton (Kenya) Ltd (unreported), that:-
"There appears to be a common belief by many in these courts that the use of the word "shall" in a statute makes the provision under construction a mandatory one in all circumstances. That belief is in my discernment of the law a fallacious one. As I understand the canons of statutory interpretation, the use of the word "shall" in a statute only signifies that the matter is prima facie mandatory. The use of the word is not conclusive or decisive. It may be shown by a consideration of the object of the enactment and other factors that the word is used in a directory sense only. As long ago as 1861, in the case of LIVERPOOL BOROUGH BANK V TURNER [1861] 30 L. J. Ch. 379, pp. 380-381, Lord Campbell had laid it down that;
"No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered..."
It is on the basis of the above that the appellant contends that the trial court failed to accord the him substantive justice that he rightly deserved.
As to whether the appellant was entitled to the injunctive orders the appellant the appellant submitted that all the principles on injunctions were not considered by the court and had the learned honorable magistrate done so, he would have been inclined to grant the same. The appellant relied on the celebrated case of GIELLA VS. CASSMAN BROWN [1973] eKLR where it was held as follows:
"The conditions for the grant of an interlocutory injunction are now, I think, 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."
The appellant further relied on the case of ASSANAND -versus- PETTITT(1989) eKLR . In this case the Honorable court held that:-
"The object of a Temporary Injunction is to keep things in status quo so that if at the hearing the plaintiffs obtain a judgment in their favour the defendants will have been prevented from dealing in the meantime with the property in such a way as to make that judgment ineffectual."
On the issue of the appellant having a prima facie case, the applellant cited the case of MRAO LTD VS. FIRST AMERICAN BANK OF KENYA LTD & 2 OTHERS [2003] KLR 123 as:
"A Prima facie case in a civil application includes but not confined to a genuine and arguable case. 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."
In the instant case, there is no doubt that the suit property is the Appellant''s Matrimonial Home, and the Applicant did attach a copy of his Marriage Certificate together with the registered owner.
At the point of approaching the trial court, the home was thus in danger of being alienated as the Respondents contended that the Appellant had given his spousal consent to the creation of the charge over the suit property, while on the other hand the Appellant vehemently denied ever giving his spousal consent.
According to the appellant the origin and authenticity of the alleged spousal consent was disputed thus the genuineness of the charge remained a triable issue thus the plea for an injunction by the appellant was merited to preserve the status quo.
The appellant thus argued that from the factual matrix before the court, the issue of whether or not that there was spousal consent before the creation of the charge over the matrimonial home was a triable issue thus the appellant had a prima facie case which position was totally ignored and never looked at by the trial Magistrate.
The appellant cited the decision of the Learned Judge Onguto J. (as he then was) in SUSAN ANNA KARANJA VS. ANNA KARANJA VS. LENANA TOWERS LTD [2014] eKLR , wherein he held that:
"The Plaintiff has the right to know when her spouse is disposing of real property and to consent to such disposition. She has shown that no such consent was apparently obtained from her and it is upon the respondent to explain to the Court whether an attempt was made to obtain such consent and whether indeed one was obtained. In my view, the applicant has established a prima facie case with a probability of success...I hold the view that in view of the express provisions of section 93(3) and (4) of the Land Registration Act, if there ultimately be a finding by the trial Court that no consent was obtained then the transaction has to be declared void."
The 1 st Respondent on the other hand alleged that the Appellant was served with Statutory Notices as expected under the law.
The appellant denied ever receiving any such notice thus putting into question the propriety of the process preceding the intended realization of the charge. The fact that service of the notices was disputed that was a triable issue that the lower court ought to have considered before dismissing the application.
The appellant relied on the case of MICHAEL GITERE & ANOTHER v KENYA COMMERCIAL BANK LIMITED [2018] eKLR , where the Court cited with approval the Court of Appeal decision in Nyangilo Ochieng & Another v Kenya Commercial Bank, Court of Appeal at Kisumu, Civil Appeal No. 148 of 1995 (1996) eKLR and in turn held that: -
"...according to the Plaintiffs, though there are notices annexed to the Replying Affidavit dated 17/8/2017 and 5/2/2021 purportedly served on the plaintiffs, service of the same is denied. Further, although it is indicated that the purported notices were served through registered post, no certificate of postage has been annexed to prove that mode of service....taking into account that there is no evidence of service of the requisite Notices and given that service is key in exercise of statutory power of sale, then the court finds that the statutory power of sale was not properly exercised. The Court in turn granted an Injunction.
From the foregoing, the appellant submitted that it was, evident that the acts of the Respondents were unlawful and in total breach of the Appellant''s legal rights and thus established a prima facie case worthy of consideration and protection of the trial court.
The Appellant further submitted that he stood to suffer irreparable and substantial loss that could not be compensated by award of damages by losing his matrimonial home as he would be rendered homeless with his children if the intended illegal Auction proceeds.
It is an undeniable fact every person has some unquantifiable sentimental attachment and unquantifiable to his family home that cannot be compensated by way of damages if the home is eventually found to have been wrongfully auctioned.
That consideration fits in well within the Casman Brown principles of injunctions. The trial court did not take that into consideration as well.
The appellant cited the case of STARS AND GARTERS RESTAURANT & ANOTHER vs. NATIONAL BANK OF KENYA LTD [2019] eKLR ; where it was stated that: -
"In my view, a chargor whose security is sold without compliance with the statutory provisions and the terms of the mortgage will suffer irreparable loss. Whereas it is true that a security offered to secure a loan can be sold where there is default in payment of the loan, it is also correct that a genuine and sincere mortgagor in taking a loan intends to pay the same. The loss of a property sold in breach of statutory provisions translates to irreparable loss. Once the property is sold in compliance with the law, it cannot be recovered from the purchaser who has bought it in a public auction. In such circumstances it cannot be said that money will be adequate compensation to the mortgagor. It is therefore find and hold that the applicants bave established that they will suffer irreparable loss if injunctive orders are not issued."
The Appellant contended and rightly so in my view, that he had established that he would suffer irreparable harm of losing his matrimonial home, a place his young children have known all their life as their humble abode and to which loss cannot be compensated by an award of damages, if the intended illegal sale was not stopped.
In the case of SHAROK KHER MOHAMED ALI & ANOTHER vs SOUTHERN CREDIT BANKING CORPORATION [2008] eKLR Warsame, J. (as he then was) held as follows:-
"I am satisfied a party deprived of his property through an illegal process would suffer irreparable loss and/or damage. In any case, a party entitled to a legal right cannot be made to take damages in lieu of bis right. In essence the damages and/or loss that would be suffered by the Plaintiffs would be significant if an injunction is not granted. My position is that a party in contravention of the law cannot be rewarded for his contravention.
The balance of convenience in this instance would favour the Appellant if the court were to rule in his favour at the end of the trial in the substantive suit.
By issuing an injunction the court would have avoided any registration, alienation, transferring or conferring any proprietary rights to a third party of the suit property until the record has been set straight, the correct value of the suit property determined, the legality of the exercise of statutory power of sale and conferment of proprietary rights to a third party.
According to the appellant the balance of convenience in this case hugely tilted in his favor given that the legality of the Charge and the intended sale had been impugned.
The trial court having failed to take into account the issues pleaded, but rather relied on a technicality, it would only be in the interest of the parties that the status quo be preserved pending the hearing and determination of the main suit on its merits.
RESPONDENT''S CASE
The respondent submitted that the appellant faults the Honourable Magistrate in his Ruling for holding that the Appellant having failed to prove that he gave his spousal consent and/or prove that he was the spouse of the chargor, did not have locus standi to file the suit and the Application.
The respondent further supports the decision of the learned Honourable magistrate that the documents filed by the Appellant purporting to be annextures were not annextures.
The respondent acknowledged that in the Notice of Motion Application dated 29th August,2022 before the Honourable Magistrate, the Appellant was challenging the Respondent''s right to exercise statutory power of sale over the suit property LR NO. THIKA MUNICIPALITY BLOCK 21/1923 registered in the name of JERUSHA WANJA NJAGAI on various grounds; that his wife took an overdraft loan secured on a matrimonial property without his knowledge; he was never served with any notices save for 45 days redemption notice,; and that he did not give spousal consent.
However, according to the respondent the appellant failed to properly attach exhibits/annexures to proof his locus standi in the suit leading to dismissal for want of locus standi.
The respondent thus supports the decision of the learned honorable magistrate in its entirety.
ISSUES FOR DETERMINATION,
(a) Whether the Learned Magistrate misdirected himself in law and fact by paying regards to procedural technicalities at the expense of substantive justice.
b) Whether the Honourable Learned Magistrate failed to consider the grounds for granting interlocutory injunctions.
(c) Whether the Honourable Learned Magistrate failed to
consider prejudice that the Appellant may suffer.
d)Whether the Learned Magistrate failed to consider
and evaluate the evidence tendered by the Appellant.
e) Who bears the cost of the Appeal.
ANALYSIS AND DETERMINATION
On whether the Learned Magistrate misdirected himself in law and fact by paying regard to procedural technicalities at the expense of substantive justice, this court finds that the learned honorable magistrate did place undue weight on the issue of annextures relied on by the appellant.
The promulgation of the Constitution of Kenya 2010 ushered in an era where procedural technicalities must occupy the back seat in the determination of disputes in our courts today.
The paradigm shift is towards a justice process that focuses on substantive justice to all as opposed to adherence to procedural technicalities that hinder access to justice contrary to the express provisions of Article 48 of the Constitution.
The court should have concerned itself more with the merits of the case in order to ensure that justice was served to all parties. The technicality about the annextures in this court’s view fell into what would amount to an undue procedural technicality which the Constitution specifically discourages under Article 159(2)(d).
The Appellant having deposed that the Chargor was his spouse, and that there was no evidence to the contrary, the learned honorable magistrate should have considered that the legal issue arising out of the question of spousal consent was weighty enough to warrant the grant of an injunction to preserve the property.
The string of authorities on the importance of spousal consent all point to the declaration of a flawed process where it is not proved that spousal consent had not been properly obtained prior to the charging of matrimonial property.
The mere fact that a marriage certificate has been annexed to an affidavit is not proof of marriage per se. Marriage is a question of fact. It can even be presumed to exist based on facts and circumstances. See Supreme Court decision in Petition No. 9 of 2021 Mary Nyambura Kangara alias Mary Nyambura Paul Vs Paul Ogari Mayaka and ISLA . Thus, it would require evidence to determine that fact. The applicant could only be able to do so in the main suit where the issue of locus standi would have to be determined if indeed the respondent believed and had evidence that the applicant was not married to the chargor.
If the court was to simply rely on marriage certificates as contended by the respondent as proof of marriage, then what would be the fate of those spouses who may not have a marriage certificate to display or even if they had one, are unable to access it out of circumstances beyond ones’ control? The issue of the annexture was in this court’s view purely a matter of technicality that could not be resorted to without exposing the appellant to the risk of losing his property.
The court ought to have at least given the appellant an opportunity to appear in the main suit to ventilate his case with the property still in place to ensure fairness.
The appellant in this courts view had a prima facie case and considering the nature of the dispute the balance of convenience tilted in favour of preserving the properties.
The loss of a matrimonial home is so distressing that no amount of compensation in damages would suffice to restore the appellant to his original position if at all he was to eventually succeed in the main suit.
The Courts have a duty where the rights of individuals are concerned to adopt the interpretation that most favours the enforcement of a right or fundamental freedom in line with Article 20 (2) (b).
The two parties in this matter were tussling over property thus Article 40 (1) should have been accorded some greater degree of prominence in order to preserve the property to allow the parties ventilate their respective cases at the main hearing.
As a secured creditor if the disputed property was to be preserved pending the hearing of the suit, the respondent would not have been exposed to the risk of loss thus there was absolutely no reason to deny the orders for preservation.
It is trite law that he who alleges must prove. At the hearing of the suit the issue of spousal consent would have to be established by he who alleges the same to have been obtained. The same cannot simply be presumed.
Section 107 of the Evidence Act, Chapter 80 Laws of Kenya states as follows:
1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist.
2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person
The appellant having denied that he had given spousal consent, the burden would lie on respondent to prove that such a consent was granted by the appellant for the creation of the charge.
In the circumstances this court finds that the appeal has merit, all the principles of injunctions properly considered as spelt out in Giella vs Cassman Brown $ Co (1973) E.A 358 were in his favor thus the decision of the learned honorable magistrate is hereby set aside with costs to the appellant.
The suit property shall be preserved to await the final determination of the matter.
It is so ordered.
'
INTRODUCTION
The appeal before this Court emanates from the decision of the trial court rendered on the 27th February, 2023 dismissing the Appellant''s application seeking temporary injunction pending the hearing and determination of the main suit.
APPELLANTS CASE
The trial court in its ruling did indicate that it considered the application, the responses to the application, as well as the submissions filed by parties but instead of delving into the merits and/or principles relating to the grant or denial of injunctive reliefs as established in the Giella vs Cassman Brown case, it went out of the issues pleaded and made a determination touching on a technicality based on whether documents on the court''s records can be considered as annexures and ended up dismissing the Application.
The appellant contends that not a single established principle as to the grant of injunctions was considered before taking the drastic step in dismissing the Notice of Motion dated 29/8/2022 summarily.
The 1 st Respondent sought to commence the exercise of its statutory power of sale against the Appellant''s property consisting of all that piece of land known as LR NO. THIKA MUNICIPALITY BLOCK 21/1923 registered in the names of his wife JERUSHA WANJA NJANGAI. At the trial court the Appellant sought to stay the actual sale, further advertising for sale, alienation, disposing off, transfer, registration and/or in any other manner completing conveyance of any sale concluded by auction or private treaty pending determination of the main suit.
That is the application that the lower court dismissed.
The appellant has set out the following issues for determination: -
Whether decision rendered by the trial court amounted to substantive
justice?
b.) Whether the Appellant was entitled to the Injunctive Orders sought at the trial court?
On Whether decision rendered by the trial court amounted to substantive justice, the appellant has submitted that the Appellant approached the trial court purposely seeking justice in terms of what he considered as an irregular and illegal process commenced by the Respondents.
According to the applicant the process initiated by the respond was aimed at dispossessing him of his matrimonial property.
The trial court in making its considerations before rendering its decision did look at the Supporting Affidavit filed an formed an opinion that the documents referred to in the Supporting Affidavit and the List of Documents clearly marked and verified through a Verifying Affidavit could not in the circumstances be considered as annextures.
The appellant further submitted that the Court in making its decision focused on the provisions of Rule 9 of the Oaths and Statutory Declarations Rules and it completely disregarded other components of the laws of the land and their applicability. The appellant did not however cite or specify the laws that the lower court disregarded.
The appellant further went on to submit that the lower court relied on procedural technicality to dismiss an application at an interlocutory stage and while at it denied justice to the appellant.
It is not contested that all the documents referred to and described as forming evidentiary and probative value by the Appellant were actually filed and marked as available in the Court''s records, yet still the trial court failed to consider their import and purpose.
The appellant further submitted that statutory provisions, have to be read in broad terms and applied conjunctively rather than exclusively in order to afford uniformity of decisions.
Rule 9 of the Oaths and Statutory Declarations Rules provide that: -
"All exhibits to affidavits shall be securely scaled thereto under the seal of the commissioner, and shall be marked with serial letters of identification".
The appellant maintains that a reading of Section 1A and 1B of the Civil Procedure Act confers powers to court to look at substance and not technicalities in reaching its decision in any matter under consideration.
Order 19 Rule 7 of the Civil Procedure Rules, 2010 provides that: -irregularity in form of affidavit .
The court may receive any affidavit sworn for the purpose of being used in any suit notwithstanding any defect by misdescription of the parties or otherwise in the title or other irregularity in the form thereof or on any technicality.
The argument by the appellant therefore is that the trial court did not take into account the clear provisions of this rule thus its decision amounted to miscarriage of justice.
The appellant urges this court to find that the interpretation adopted by the court below was too restrictive and effectively it went against the express provisions of the Constitution under Article 159(2) (d) which provides ;-
"In exercising judicial authority, the Courts and tribunals shall be guided by the following principles;-
(d) justice shall be administered without undue regard to procedural technicalities".
The appellant maintains that the defect alluded to by the court amounted to a mere technicality and the court ought not to have based its decision on the same without considering the merits of the application.
The appellant has extensively submitted that the purpose and import of such provisions under our laws were aimed at avoiding occasioning injustice and/or prejudice to a party by striking out their Affidavit because of a defect in form.
The appellant holds the view that the defect highlighted by the lower court touching on the exhibits was not one that could lead to the application for injunction being declined.
To advance the argument that the defect was one that could be ignored, the appellant placed reliance on the decision of the Learned Judge F. Gikonyo in the case of Litein Tea Factory Company Limited & another v Davis Kiplangat Mutai & 5 others [2015] eKLR where the Court upheld an Affidavit filed in Court as being competent and while holding that a mere irregularity is a matter of form rather than substance and such technicalities were depreciated by Article 159 of the Constitution.
In coming up with his decision, the Learned Judge did breakdown the components of Rule 9 of the Oaths and Statutory Declarations by stating;
"...first of all, I have stated that the rules draw from the Act. The word "shall" in the rules is also not to be interpreted to be mandatory but rather directory. This approach is founded on the cannons of statutory interpretation of the laws as expounded by Ringera, J, (as he then was) in the case of Milimani HCCC No. 462 of 1997, Standard Chartered Bank Limited Vs. Lucton (Kenya) Ltd (unreported), that:-
"There appears to be a common belief by many in these courts that the use of the word "shall" in a statute makes the provision under construction a mandatory one in all circumstances. That belief is in my discernment of the law a fallacious one. As I understand the canons of statutory interpretation, the use of the word "shall" in a statute only signifies that the matter is prima facie mandatory. The use of the word is not conclusive or decisive. It may be shown by a consideration of the object of the enactment and other factors that the word is used in a directory sense only. As long ago as 1861, in the case of LIVERPOOL BOROUGH BANK V TURNER [1861] 30 L. J. Ch. 379, pp. 380-381, Lord Campbell had laid it down that;
"No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered..."
It is on the basis of the above that the appellant contends that the trial court failed to accord the him substantive justice that he rightly deserved.
As to whether the appellant was entitled to the injunctive orders the appellant the appellant submitted that all the principles on injunctions were not considered by the court and had the learned honorable magistrate done so, he would have been inclined to grant the same. The appellant relied on the celebrated case of GIELLA VS. CASSMAN BROWN [1973] eKLR where it was held as follows:
"The conditions for the grant of an interlocutory injunction are now, I think, 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."
The appellant further relied on the case of ASSANAND -versus- PETTITT(1989) eKLR . In this case the Honorable court held that:-
"The object of a Temporary Injunction is to keep things in status quo so that if at the hearing the plaintiffs obtain a judgment in their favour the defendants will have been prevented from dealing in the meantime with the property in such a way as to make that judgment ineffectual."
On the issue of the appellant having a prima facie case, the applellant cited the case of MRAO LTD VS. FIRST AMERICAN BANK OF KENYA LTD & 2 OTHERS [2003] KLR 123 as:
"A Prima facie case in a civil application includes but not confined to a genuine and arguable case. 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."
In the instant case, there is no doubt that the suit property is the Appellant''s Matrimonial Home, and the Applicant did attach a copy of his Marriage Certificate together with the registered owner.
At the point of approaching the trial court, the home was thus in danger of being alienated as the Respondents contended that the Appellant had given his spousal consent to the creation of the charge over the suit property, while on the other hand the Appellant vehemently denied ever giving his spousal consent.
According to the appellant the origin and authenticity of the alleged spousal consent was disputed thus the genuineness of the charge remained a triable issue thus the plea for an injunction by the appellant was merited to preserve the status quo.
The appellant thus argued that from the factual matrix before the court, the issue of whether or not that there was spousal consent before the creation of the charge over the matrimonial home was a triable issue thus the appellant had a prima facie case which position was totally ignored and never looked at by the trial Magistrate.
The appellant cited the decision of the Learned Judge Onguto J. (as he then was) in SUSAN ANNA KARANJA VS. ANNA KARANJA VS. LENANA TOWERS LTD [2014] eKLR , wherein he held that:
"The Plaintiff has the right to know when her spouse is disposing of real property and to consent to such disposition. She has shown that no such consent was apparently obtained from her and it is upon the respondent to explain to the Court whether an attempt was made to obtain such consent and whether indeed one was obtained. In my view, the applicant has established a prima facie case with a probability of success...I hold the view that in view of the express provisions of section 93(3) and (4) of the Land Registration Act, if there ultimately be a finding by the trial Court that no consent was obtained then the transaction has to be declared void."
The 1 st Respondent on the other hand alleged that the Appellant was served with Statutory Notices as expected under the law.
The appellant denied ever receiving any such notice thus putting into question the propriety of the process preceding the intended realization of the charge. The fact that service of the notices was disputed that was a triable issue that the lower court ought to have considered before dismissing the application.
The appellant relied on the case of MICHAEL GITERE & ANOTHER v KENYA COMMERCIAL BANK LIMITED [2018] eKLR , where the Court cited with approval the Court of Appeal decision in Nyangilo Ochieng & Another v Kenya Commercial Bank, Court of Appeal at Kisumu, Civil Appeal No. 148 of 1995 (1996) eKLR and in turn held that: -
"...according to the Plaintiffs, though there are notices annexed to the Replying Affidavit dated 17/8/2017 and 5/2/2021 purportedly served on the plaintiffs, service of the same is denied. Further, although it is indicated that the purported notices were served through registered post, no certificate of postage has been annexed to prove that mode of service....taking into account that there is no evidence of service of the requisite Notices and given that service is key in exercise of statutory power of sale, then the court finds that the statutory power of sale was not properly exercised. The Court in turn granted an Injunction.
From the foregoing, the appellant submitted that it was, evident that the acts of the Respondents were unlawful and in total breach of the Appellant''s legal rights and thus established a prima facie case worthy of consideration and protection of the trial court.
The Appellant further submitted that he stood to suffer irreparable and substantial loss that could not be compensated by award of damages by losing his matrimonial home as he would be rendered homeless with his children if the intended illegal Auction proceeds.
It is an undeniable fact every person has some unquantifiable sentimental attachment and unquantifiable to his family home that cannot be compensated by way of damages if the home is eventually found to have been wrongfully auctioned.
That consideration fits in well within the Casman Brown principles of injunctions. The trial court did not take that into consideration as well.
The appellant cited the case of STARS AND GARTERS RESTAURANT & ANOTHER vs. NATIONAL BANK OF KENYA LTD [2019] eKLR ; where it was stated that: -
"In my view, a chargor whose security is sold without compliance with the statutory provisions and the terms of the mortgage will suffer irreparable loss. Whereas it is true that a security offered to secure a loan can be sold where there is default in payment of the loan, it is also correct that a genuine and sincere mortgagor in taking a loan intends to pay the same. The loss of a property sold in breach of statutory provisions translates to irreparable loss. Once the property is sold in compliance with the law, it cannot be recovered from the purchaser who has bought it in a public auction. In such circumstances it cannot be said that money will be adequate compensation to the mortgagor. It is therefore find and hold that the applicants bave established that they will suffer irreparable loss if injunctive orders are not issued."
The Appellant contended and rightly so in my view, that he had established that he would suffer irreparable harm of losing his matrimonial home, a place his young children have known all their life as their humble abode and to which loss cannot be compensated by an award of damages, if the intended illegal sale was not stopped.
In the case of SHAROK KHER MOHAMED ALI & ANOTHER vs SOUTHERN CREDIT BANKING CORPORATION [2008] eKLR Warsame, J. (as he then was) held as follows:-
"I am satisfied a party deprived of his property through an illegal process would suffer irreparable loss and/or damage. In any case, a party entitled to a legal right cannot be made to take damages in lieu of bis right. In essence the damages and/or loss that would be suffered by the Plaintiffs would be significant if an injunction is not granted. My position is that a party in contravention of the law cannot be rewarded for his contravention.
The balance of convenience in this instance would favour the Appellant if the court were to rule in his favour at the end of the trial in the substantive suit.
By issuing an injunction the court would have avoided any registration, alienation, transferring or conferring any proprietary rights to a third party of the suit property until the record has been set straight, the correct value of the suit property determined, the legality of the exercise of statutory power of sale and conferment of proprietary rights to a third party.
According to the appellant the balance of convenience in this case hugely tilted in his favor given that the legality of the Charge and the intended sale had been impugned.
The trial court having failed to take into account the issues pleaded, but rather relied on a technicality, it would only be in the interest of the parties that the status quo be preserved pending the hearing and determination of the main suit on its merits.
RESPONDENT''S CASE
The respondent submitted that the appellant faults the Honourable Magistrate in his Ruling for holding that the Appellant having failed to prove that he gave his spousal consent and/or prove that he was the spouse of the chargor, did not have locus standi to file the suit and the Application.
The respondent further supports the decision of the learned Honourable magistrate that the documents filed by the Appellant purporting to be annextures were not annextures.
The respondent acknowledged that in the Notice of Motion Application dated 29th August,2022 before the Honourable Magistrate, the Appellant was challenging the Respondent''s right to exercise statutory power of sale over the suit property LR NO. THIKA MUNICIPALITY BLOCK 21/1923 registered in the name of JERUSHA WANJA NJAGAI on various grounds; that his wife took an overdraft loan secured on a matrimonial property without his knowledge; he was never served with any notices save for 45 days redemption notice,; and that he did not give spousal consent.
However, according to the respondent the appellant failed to properly attach exhibits/annexures to proof his locus standi in the suit leading to dismissal for want of locus standi.
The respondent thus supports the decision of the learned honorable magistrate in its entirety.
ISSUES FOR DETERMINATION,
(a) Whether the Learned Magistrate misdirected himself in law and fact by paying regards to procedural technicalities at the expense of substantive justice.
b) Whether the Honourable Learned Magistrate failed to consider the grounds for granting interlocutory injunctions.
(c) Whether the Honourable Learned Magistrate failed to
consider prejudice that the Appellant may suffer.
d)Whether the Learned Magistrate failed to consider
and evaluate the evidence tendered by the Appellant.
e) Who bears the cost of the Appeal.
ANALYSIS AND DETERMINATION
On whether the Learned Magistrate misdirected himself in law and fact by paying regard to procedural technicalities at the expense of substantive justice, this court finds that the learned honorable magistrate did place undue weight on the issue of annextures relied on by the appellant.
The promulgation of the Constitution of Kenya 2010 ushered in an era where procedural technicalities must occupy the back seat in the determination of disputes in our courts today.
The paradigm shift is towards a justice process that focuses on substantive justice to all as opposed to adherence to procedural technicalities that hinder access to justice contrary to the express provisions of Article 48 of the Constitution.
The court should have concerned itself more with the merits of the case in order to ensure that justice was served to all parties. The technicality about the annextures in this court’s view fell into what would amount to an undue procedural technicality which the Constitution specifically discourages under Article 159(2)(d).
The Appellant having deposed that the Chargor was his spouse, and that there was no evidence to the contrary, the learned honorable magistrate should have considered that the legal issue arising out of the question of spousal consent was weighty enough to warrant the grant of an injunction to preserve the property.
The string of authorities on the importance of spousal consent all point to the declaration of a flawed process where it is not proved that spousal consent had not been properly obtained prior to the charging of matrimonial property.
The mere fact that a marriage certificate has been annexed to an affidavit is not proof of marriage per se. Marriage is a question of fact. It can even be presumed to exist based on facts and circumstances. See Supreme Court decision in Petition No. 9 of 2021 Mary Nyambura Kangara alias Mary Nyambura Paul Vs Paul Ogari Mayaka and ISLA . Thus, it would require evidence to determine that fact. The applicant could only be able to do so in the main suit where the issue of locus standi would have to be determined if indeed the respondent believed and had evidence that the applicant was not married to the chargor.
If the court was to simply rely on marriage certificates as contended by the respondent as proof of marriage, then what would be the fate of those spouses who may not have a marriage certificate to display or even if they had one, are unable to access it out of circumstances beyond ones’ control? The issue of the annexture was in this court’s view purely a matter of technicality that could not be resorted to without exposing the appellant to the risk of losing his property.
The court ought to have at least given the appellant an opportunity to appear in the main suit to ventilate his case with the property still in place to ensure fairness.
The appellant in this courts view had a prima facie case and considering the nature of the dispute the balance of convenience tilted in favour of preserving the properties.
The loss of a matrimonial home is so distressing that no amount of compensation in damages would suffice to restore the appellant to his original position if at all he was to eventually succeed in the main suit.
The Courts have a duty where the rights of individuals are concerned to adopt the interpretation that most favours the enforcement of a right or fundamental freedom in line with Article 20 (2) (b).
The two parties in this matter were tussling over property thus Article 40 (1) should have been accorded some greater degree of prominence in order to preserve the property to allow the parties ventilate their respective cases at the main hearing.
As a secured creditor if the disputed property was to be preserved pending the hearing of the suit, the respondent would not have been exposed to the risk of loss thus there was absolutely no reason to deny the orders for preservation.
It is trite law that he who alleges must prove. At the hearing of the suit the issue of spousal consent would have to be established by he who alleges the same to have been obtained. The same cannot simply be presumed.
Section 107 of the Evidence Act, Chapter 80 Laws of Kenya states as follows:
1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist.
2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person
The appellant having denied that he had given spousal consent, the burden would lie on respondent to prove that such a consent was granted by the appellant for the creation of the charge.
In the circumstances this court finds that the appeal has merit, all the principles of injunctions properly considered as spelt out in Giella vs Cassman Brown $ Co (1973) E.A 358 were in his favor thus the decision of the learned honorable magistrate is hereby set aside with costs to the appellant.
The suit property shall be preserved to await the final determination of the matter.
It is so ordered.
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