A. INTRODUCTION
1. This ruling concerns an interlocutory Notice of Motion dated 27th January 2026 by which the Applicant, Janet Jemutai Kombich, seeks a temporary injunction restraining the Respondent, Prof. Michael Kiptoo Kibet, from selling, leasing, charging, locking out or blocking the Applicant from, or otherwise demarcating, eight parcels of land and three motor vehicles, pending the hearing and final determination of an Originating Summons dated 15th January 2026 in which the Applicant seeks a declaration that those properties, and one further motor vehicle, are matrimonial property acquired during the subsistence of the parties' now-dissolved marriage, and an order for their division.
2. The Application was first been placed before the Court and allowed, on 9th March 2026, without the Respondent having been heard. The Respondent moved promptly, by a Notice of Motion dated 12th March 2026, to set aside that order; the Court allowed the Respondent's Application, reinstated the Applicant's Notice of Motion for inter-parties hearing, and directed the parties to file Replying Affidavits and written submissions. Pursuant to those directions, the Respondent filed a Replying Affidavit sworn on 18th June 2026 together with written submissions and a list and bundle of authorities. The Applicant did not file submissions.
B. BACKGROUND
The marriage and its dissolution
3. The Applicant and the Respondent contracted a Christian marriage under the African Christian Marriage and Divorce Act (Cap 151) on 23rd August 1997 at the Office of the Registrar of Marriages, Kipsomba, Uasin Gishu County. The marriage was blessed with three children, all now adults or near-adults. On 4th September 2025 the Respondent filed Divorce Cause No. MCDC/E1358 of 2025 at the Milimani Chief Magistrate's Court, Nairobi, pleading cruelty and adultery on the part of the Applicant. The Applicant entered appearance on 12th September 2025 but, on the record before that Court, filed no response and did not attend the hearing of 4th November 2025. The Petition proceeded formally and was allowed the same day; a Decree Nisi issued, and it was made absolute on 4th December 2025. The Applicant's subsequent Application, dated 2nd December 2025, to set aside the divorce judgment on the footing that the parties had reconciled, was withdrawn by her on 5th December 2025. The marriage between the parties therefore stood, as at the date of the Notice of Motion now before me, fully and finally dissolved.
The Originating Summons
4. By an Originating Summons dated 15th January 2026 and brought under sections 7, 12 and 17 of the Matrimonial Property Act No. 49 of 2013 and Order 37 of the Civil Procedure Rules, 2010, the Applicant seeks, in substance: (a) a declaration that the properties known as Kericho/Kapsuser/5919, Kericho/Kapsuser/6942, Ngong/Ngong/26804, LR No. 631/238, Langata Commercial House No. 003-37, and Rongai/Lenginet Block 1/68, 1/63 and 1/53, together with motor vehicles registration numbers KCM 204P, KDG 224H, KCT 077X and KBR 525S, are matrimonial property; (b) a declaration as to the parties' respective financial and non-financial contributions to those properties; (c) an order for their division, including sale and equal division of the two motor vehicles specifically pleaded for that purpose; and (d) ancillary orders, including an order that the Respondent avail documents necessary to effect division, and a finding as to how buildings still under construction on three of the parcels are to be divided. The Applicant's Supporting and Verifying Affidavits, both sworn on 15th January 2026, plead that the parties acquired the suit properties during the subsistence of the marriage, that she personally purchased and developed the matrimonial home at Kericho/Kapsuser/5919, and that she developed two further properties using proceeds of sale of her own property and bank loans secured against her salary as an employee of Kabianga University.
The Notice of Motion and the procedural history
5. Filed together with the Originating Summons, is the Notice of Motion of 27th January 2026. It was supported by a Certificate of Urgency and by the Applicant's own affidavit sworn the same month, both essentially repeating the factual basis of the Originating Summons and adding the specific allegation, that the Respondent locked her and the children out of the matrimonial home on 12th December 2025. As already noted, the Application was first allowed on 9th March 2026 without the Respondent's participation; it was reinstated for inter-partes hearing on the Respondent's Application of 12th March 2026; and it is that reinstated Application, now argued on affidavit and (on the Respondent's side only) on written submissions, which I must determine.
C. THE APPLICANT'S CASE
6. The Applicant's case is drawn from her Supporting and Verifying A ffidavits sworn in support of the Originating Summons, and from her Supporting Affidavit and the grounds of the Notice of Motion (there being no submissions on her behalf). Read together, those affidavits give a property-by-property account of her claimed contribution, which it is necessary to set out with some particularity, since the strength of that account differs materially from one property to the next and that difference bears directly on my analysis below.
7. As to Kericho/Kapsuser/5919, the matrimonial home, she avers that although title is in the Respondent's name, she personally negotiated, contracted for, paid for and developed the property, having purchased it from one Ismael Sang. As to Kericho/Kapsuser/6942, she avers that she substantially contributed to its acquisition, development, maintenance and management through bank loans, her salary and proceeds of sale of her own property. As to Ngong/Ngong/26804, she gives a specific account: that she contributed Kshs. 350,000 toward the initial purchase price from per diem allowances earned on a three-month work trip to London in 2000 while employed at KEMRI, that the property was thereafter jointly developed, and that the family lived there from 2002 to 2018, after which it was agreed the property would be sold to meet the children's education expenses. As to LR No. 631/238, she avers that it was gifted to her by her own father and developed by her, that it is registered in the parties' joint names, and that on that footing she should on division take the larger, 80%, share.
8. As to the three parcels at Rongai/Lenginet — Block 1/68, 1/63 and 1/53 — she does not assert direct financial contribution to their acquisition; rather, she avers that her having taken on sole responsibility for the maintenance and management of the four properties already mentioned freed the Respondent to devote his time and resources to acquiring and developing those three parcels, on one of which he has since built a warehouse. As to Langata Commercial House No. 003-37, beyond including it, without further elaboration, among the properties said in general terms to have been paid for "entirely/substantially" by her, her affidavits contain no particularised account of any contribution of any kind. As to the motor vehicles, she avers that KCM 204P and KBR 525S have at all times been stationed at the Kapsuser farm for her dairy farming activities and for her and the children's use, and that she has personally maintained, fuelled and serviced them; she makes no averment of any kind concerning KDG 224H or KCT 077X beyond listing them among the suit properties.
9. She further avers that on 12th December 2025 — eight days after the divorce became final — the Respondent discreetly entered the matrimonial home while she was out of the compound and locked her and the children out of it, together with their personal effects and motor vehicle KCM 204P, and that he instructed workers at the property to bar her access by any means necessary. She avers that the Respondent instructed tenants at Kericho/Kapsuser/6942 and LR No. 631/238 to stop paying rent to her. On this footing she contends that, unless restrained, the Respondent will continue to lock her out of, and will sell, alienate or demarcate, the suit properties without her knowledge or consent, and that he is deliberately seeking to disinherit and disenfranchise her now that the marriage has been dissolved. She therefore seeks a temporary injunction in the terms set out at paragraph 1 above, pending the hearing and determination of the Originating Summons, together with costs.
D. THE RESPONDENT'S CASE
10. The Respondent opposes the Application in its entirety, by Replying Affidavit and written submissions. He denies that the suit properties were jointly acquired, and puts the Applicant to strict proof of any contribution, financial or otherwise, to their acquisition or development. He avers that it was he, not the Applicant, who instituted the divorce proceedings, in order to free himself from what he describes as the Applicant's conduct during the marriage, and that the Applicant, having been served and having entered appearance, chose neither to file a response nor to attend the hearing of the divorce petition.
11. On the specific allegations grounding the injunction, the Respondent's account differs sharply from the Applicant's. He avers that it is the Applicant, not he, who has been the aggressor since the divorce: that on or about 12th December 2025 she, accompanied by others, gained access to his home in Kericho, opened his safe and made away with title deeds and motor vehicle log books, a matter he reported to the Kericho DCI; that she chased away workers on his dairy farm and attempted, with the assistance of the OCPD Belgut, to install her own; that he was compelled to and did obtain a restraining order in Kericho MCELC No. E029 of 2026 barring her from his Kericho home; that she and the OCPD Belgut contacted and threatened his elderly mother in Kitale in an effort to locate him and his licensed firearm, a matter he has reported to the Independent Policing Oversight Authority; and that she went to his Nakuru property, removed car keys and log books for four vehicles, and, through a relative who worked as his farmhand, took maize and baled hay that have not been recovered. He deposes that he has never assaulted the Applicant and puts her to strict proof of each instance of alleged assault, by production of an occurrence book number, a P3 form, hospital records, a charge sheet or any restraining order — none of which, he avers, has been annexed to her affidavit.
12. On the law, the Respondent submits, relying principally on the Giella v Cassman Brown & Co Ltd test as sequentially applied, that the Applicant has failed to establish a prima facie case, since she has adduced no evidence that he intends to sell, lease, charge or otherwise alienate any of the suit properties, her apprehension being, on his submission, pure speculation; that she has shown no irreparable injury, since any beneficial interest ultimately found to exist can be compensated in damages, the properties being registered in his name and there being no evidence of any intended disposal; that the balance of convenience favours him, as the party in occupation and reliant on the farms for his livelihood; and that, in any event, the Applicant comes to equity with unclean hands, given the conduct summarised above, and is for that reason alone undeserving of a discretionary remedy. He asks that the Application be dismissed with costs.
E. A PRELIMINARY OBSERVATION: ABSENCE OF SUBMISSIONS BY THE APPLICANT
13. It is right to record, at the outset of my analysis, that the Applicant did not file written submissions notwithstanding the Court's directions. That omission does not, however, entitle the Court simply to enter an order in the Respondent's favour by default, still less to treat the Respondent's account of disputed facts as thereby proved. Submissions are argument, not evidence; the evidence properly before the Court on this Application is the parties' affidavits, and it is that evidence, together with the pleadings, which the Court is bound to evaluate on its merits.
F. ISSUES FOR DETERMINATION
14. The following issues arise for determination:
i. whether the Applicant has demonstrated a prima facie case with a probability of success sufficient to warrant interlocutory protection;
ii. whether the Applicant stands to suffer harm that cannot adequately be compensated by an award of damages;
iii. where, if the Court is in doubt on (i) and (ii), the balance of convenience lies;
iv. what bearing, if any, the conduct attributed to each party has on the exercise of the Court's discretion; and
v. what order, if any, should issue, and on what terms as to costs.
G. THE APPLICABLE LAW
15. Order 40 rule 1(a) of the Civil Procedure Rules, 2010 empowers the Court, where it is shown by affidavit or otherwise that property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, to grant a temporary injunction restraining that act, or to make such other order as it thinks fit to prevent the wasting, damaging, alienation, sale, removal or disposition of the property, until the disposal of the suit or further order.
16. The governing test remains that stated in Giella v Cassman Brown & Co Ltd [1973] EA 358:
“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.”
17. Those three limbs are to be applied sequentially, not cumulatively considered at large. In Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR the Court of Appeal held that the three conditions "are to be applied as separate, distinct and logical hurdles which the Applicant is expected to surmount sequentially," so that if a prima facie case is not established, irreparable injury and the balance of convenience need no consideration, and the existence of a prima facie case does not permit an applicant to leap-frog directly to an injunction without also crossing the remaining hurdles.
18. A prima facie case was defined by the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR as:
“…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.”
19. The same authority is equally important for two further propositions. First, it confirms that a party who comes to a Court of equity without utmost good faith may, on that ground alone, be refused an injunction notwithstanding an otherwise arguable case. Secondly, and just as significantly for present purposes, the Court of Appeal there stressed that it is not for a Court determining an interlocutory Application to resolve, once and for all, the very factual disputes that are properly reserved for trial; the danger of an interlocutory tribunal "trespassing on the jurisdiction of the judge who will eventually hear the case" by expressing concluded views on contested facts was expressly deprecated.
20. Where matrimonial property is concerned, Sections 6, 7 and 17 of the Matrimonial Property Act, No. 49 of 2013 are of particular relevance. Section 7 provides that ownership of matrimonial property "vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved." Section 17 separately empowers a person to apply to a Court for a declaration of rights to property contested between that person and a spouse, whether or not a divorce petition has been filed.
21. That the statute conditions division, but not declaration or interim protection, on dissolution was considered directly by the Court of Appeal in AKK v PKW [2020] KECA 335 (KLR) (Civil Appeal No. 61 of 2019), itself an appeal arising from an interlocutory injunction restraining a spouse from disposing of properties said to be matrimonial and requiring dividends and proceeds to be held in escrow pending trial. The Court of Appeal there distinguished the two provisions, holding, in effect, that while a Court "cannot divide matrimonial property between spouses until their divorce or their marriage is otherwise dissolved" under section 7, section 17 permits a Court to declare, and by necessary implication to protect pending determination of, a spouse's claimed interest in property irrespective of whether the marriage subsists. The Court of Appeal accordingly set aside a decision declining jurisdiction to grant interim protective relief before divorce, and remitted the Application for interlocutory injunction to be heard on its merits.
22. In ANW v GWK [2021] KEHC 3171 (KLR), the High Court applied that Court of Appeal authority to a materially similar Application — where, unlike here, the parties' divorce was still pending — and held that section 7 does not bar an Application for a declaration of rights, nor therefore an ancillary Application for protective interlocutory relief, merely because the marriage has not yet been dissolved; it is only the actual division of matrimonial property, as opposed to a declaration of interest in it or an order preserving it pending suit, that section 7 defers to the point of divorce or dissolution. The Court in ANW v GWK accordingly found a prima facie case established and granted a limited order preserving the status quo over the property the respondent there had already surrendered to the applicant's sole use and occupation, declining to extend that order to properties over which no such basis had been shown.
23. More directly in point still, because it too concerned an Application brought after the parties' marriage had already been dissolved, is JWG v GGW [2019] KEHC 7178 (KLR) (Nakuru Matrimonial Cause No. 12 of 2017). There, more than a decade after a decree absolute, a former spouse applied to restrain the other from dealing with five properties said to be matrimonial. Applying the ordinary Giella test, the High Court granted the injunction only in respect of the properties as to which the applicant had given a specific, particularised account of contribution during the marriage, and refused it as to properties inherited by the Respondent, holding that "no property is available to a spouse from the other spouse merely on the basis of being a wife or a husband. There must be contribution," and that a bare assertion that property was "acquired during coverture," without more, does not establish the beneficial entitlement necessary to found interlocutory relief. On the properties as to which contribution was shown, the Court held that, being real property, any adverse dealing with them pending trial was itself apt to cause irreparable harm. JWG v GGW is, in my respectful view, the closest analogue on the facts to the Application before me, and I return to it in my analysis of whether a prima facie case has been shown as to each of the individual suit properties.
24. Finally, where the Court remains in doubt after considering the first two limbs of the Giella test, it is to be guided by the principle, applied by the High Court in Meena Salon & Barbershop Ltd v Soroya Investment Ltd [2014] eKLR by reference to Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772, that "the Court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong'." That authority is also a useful illustration of an approach which, faced with genuine factual controversy on both sides which the Court could not resolve on affidavit, declined either to dismiss the Application outright or to grant the wide relief sought, and instead crafted a narrower, time-limited protective order.
H. ANALYSIS
(i) Prima facie case
25. I begin by observing that the marriage between the parties has already been dissolved by decree absolute, a position materially different from, and stronger for the Applicant than, that of the applicant in ANW v GWK, where the marriage still subsisted and the applicant's standing to bring even a declaratory claim under section 17 of the Matrimonial Property Act was itself in issue. No such threshold objection arises here: the Originating Summons is brought under section 7, and the precondition that the marriage be dissolved is, on the material before me, satisfied. The question at this stage is not, therefore, whether the Applicant may bring her claim at all, but whether she has shown a prima facie case that the suit properties, or some of them, are matrimonial property in which she holds a beneficial interest requiring protection pending trial.
26. Applying JWG v GGW, however, that finding cannot be made in blanket terms across all nine suit properties and four vehicles; it must be made property by property, according to whether the Applicant's affidavits give a particularised account of contribution capable of founding an arguable beneficial interest, or instead merely assert, without more, that the property was "acquired" or "registered" during the marriage. On that approach, and for the reasons given above, I am satisfied that a prima facie case is shown as to Kericho/Kapsuser/5919, Kericho/Kapsuser/6942, Ngong/Ngong/26804, LR No. 631/238, and motor vehicles KCM 204P and KBR 525S. In each case the Applicant identifies, with some particularity, the nature, timing and source of her claimed contribution — a purchase she says she personally negotiated and paid for, loans and salary and sale proceeds she says she applied to specific properties, a specific sum from a specific source applied to a specific purchase, a claimed joint proprietorship, or specific, continuous personal use and maintenance of specific vehicles — and each is squarely denied by the Respondent. That is a genuine and arguable dispute of exactly the kind Mrao Ltd describes, not a bare assertion of the kind JWG v GGW held insufficient; and it is not for me, at this interlocutory stage, to resolve it either way, that being the task reserved for the hearing of the Originating Summons.
27. I reach the opposite conclusion as to Langata Commercial House No. 003-37 and motor vehicles KDG 224H and KCT 077X. As to the former, the Applicant's affidavits go no further than to include it in a generalised, composite assertion that she paid "entirely/substantially" for a list of properties named together; unlike every other property in that list, it receives no individual treatment anywhere in her affidavits — no account of when, how, or to what extent she is said to have contributed to it. As to the two vehicles, there is no averment of any kind connecting the Applicant to their use, maintenance or acquisition. That is precisely the sort of bare, unparticularised assertion that JWG v GGW held insufficient to found a prima facie case; "no property is available to a spouse from the other spouse merely on the basis of being a wife or a husband" — or, for that matter, merely by being named on a list of suit properties without more. I am conscious that this is a preliminary, interlocutory assessment only, made on the material as it presently stands, and that nothing prevents the Applicant from adducing fuller particulars as to these items, whether in an amended or supplementary affidavit or at the hearing of the Originating Summons itself.
28. As to the Rongai/Lenginet parcels — Block 1/68, 1/63 and 1/53 — the Applicant does not claim direct financial contribution, but advances a distinct theory: that her assumption of sole responsibility for managing the other properties freed the Respondent to acquire and develop these three. Non-financial and indirect contributions of that kind are, in principle, capable of founding an interest in matrimonial property; section 12 of the Matrimonial Property Act contemplates exactly that form of contribution. I do not consider that theory to be fanciful. It is, however, considerably more attenuated than her account of the other properties — she gives no dates, no description of what exactly was built or acquired when, and no detail of how her management of the other properties is said to have translated into his acquisition of these ones — and it is a theory the Respondent's affidavit, which describes those parcels and his farming operations there in terms suggesting they are his own undertaking, does not directly engage with at all. On balance, I am not satisfied that this theory, as presently particularised, rises to the level of a prima facie case for purposes of interlocutory protection, though again without prejudice to it being developed further at trial.
29. Separately, I do not find that the Applicant has shown a prima facie threat of the kind Order 40 rule 1(a) is designed to guard against, namely that the property in dispute is "in danger of being wasted, damaged, or alienated." Her own account is that the Respondent has occupied and excluded her from the properties, not that he has taken or threatens to take any step toward selling, charging, leasing or otherwise disposing of them to a third party, and the Respondent unequivocally denies any such intention.
(ii) Irreparable injury
30. As to the properties and vehicles identified above, I am satisfied, following JWG v GGW, that if any of them were sold, charged or otherwise encumbered to a third party pending determination of the Originating Summons, the Applicant's ability to recover her proven share, or to have it protected against an innocent third-party purchaser or chargee, could be seriously and perhaps irreversibly compromised, in a manner not necessarily cured by an award of damages against the Respondent personally. That risk, however speculative on the present record, is precisely the mischief an anti-alienation order under Order 40 rule 1(a), and the kind of protective order the Court of Appeal contemplated in AKK v PKW, are designed to guard against.
31. As to the Applicant's exclusion from occupation of the properties, and in particular the matrimonial home, the position is different. The loss occasioned by exclusion from use and occupation — alternative accommodation, inconvenience, and the like — is, in principle, compensable in damages or accounted for in the eventual division exercise, and the Applicant has not shown, on this record, that continued exclusion pending the remaining course of the Originating Summons would cause her harm of a kind money cannot remedy. I bear in mind, too, that unlike the properties themselves, occupation is not a wasting or depreciating asset in the same sense; whatever occupation is ordered or restored can, if the Applicant ultimately succeeds, be factored into the final division.
(iii) Balance of convenience
32. I am not in doubt as to the narrower anti-alienation relief over the properties identified above. In any event, the balance of convenience favours a limited protective order rather than either of the extremes urged by the parties. On the one hand, preserving those properties in their current state pending the Originating Summons causes the Respondent no real prejudice: he does not say he wishes to sell, lease or charge them, so an order restraining him from doing so restrains him from nothing he says he intends to do, while affording real protection to the Applicant's pleaded interest should it be established at trial. On the other hand, disturbing the parties' current, if contested, occupation and management arrangements — in particular, ordering the Respondent to admit the Applicant to a home he currently occupies, or restraining him from directing the conduct of tenants and farm workers on properties he manages — would require this Court to resolve, on affidavit and at an interlocutory stage, sharply disputed and serious allegations of misconduct on both sides (Section D above) that neither party's affidavit evidence, without cross-examination or further proof, allows me safely to resolve. I am conscious, too, that the Respondent already holds an order of a coordinate Court, in Kericho MCELC No. E029 of 2026, addressing occupation of at least one of the same properties; it would be inappropriate for this Court, on this Application, to make orders that might be read as cutting across that order. The lower risk of injustice, applying Films Rover and Meena Salon, lies in preserving the subject-matter of the suit without disturbing the parties' present possession.
(iv) Conduct of the parties
33. The Respondent urges that the Applicant comes to equity with unclean hands and is for that reason alone disentitled to any relief, relying on the equitable maxim as applied in Mrao Ltd and, more tangentially, in John Njue Nyaga v Nicholas Njiru Nyaga & Another [2013] eKLR. I treat the latter authority with some caution: it was an appeal concerning the jurisdiction of a Land Disputes Tribunal to distribute family trust land, and its observation on clean hands was made in passing, in relation to the appellant's own secret dealings with family land, not in the context of an interlocutory injunction of the kind before me; it is, at best, persuasive on the general equitable principle and no more. That principle is nonetheless well established independently of that authority, including in Mrao Ltd itself. The difficulty for the Respondent is that the conduct he relies upon — the alleged break-in, removal of documents, interference with farm workers and tenants, and harassment of his mother — is itself the subject of serious, specific, but wholly untested allegations, denied or unaddressed on the present affidavits, and is, in substantial part, said to have occurred
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1. This ruling concerns an interlocutory Notice of Motion dated 27th January 2026 by which the Applicant, Janet Jemutai Kombich, seeks a temporary injunction restraining the Respondent, Prof. Michael Kiptoo Kibet, from selling, leasing, charging, locking out or blocking the Applicant from, or otherwise demarcating, eight parcels of land and three motor vehicles, pending the hearing and final determination of an Originating Summons dated 15th January 2026 in which the Applicant seeks a declaration that those properties, and one further motor vehicle, are matrimonial property acquired during the subsistence of the parties' now-dissolved marriage, and an order for their division.
2. The Application was first been placed before the Court and allowed, on 9th March 2026, without the Respondent having been heard. The Respondent moved promptly, by a Notice of Motion dated 12th March 2026, to set aside that order; the Court allowed the Respondent's Application, reinstated the Applicant's Notice of Motion for inter-parties hearing, and directed the parties to file Replying Affidavits and written submissions. Pursuant to those directions, the Respondent filed a Replying Affidavit sworn on 18th June 2026 together with written submissions and a list and bundle of authorities. The Applicant did not file submissions.
B. BACKGROUND
The marriage and its dissolution
3. The Applicant and the Respondent contracted a Christian marriage under the African Christian Marriage and Divorce Act (Cap 151) on 23rd August 1997 at the Office of the Registrar of Marriages, Kipsomba, Uasin Gishu County. The marriage was blessed with three children, all now adults or near-adults. On 4th September 2025 the Respondent filed Divorce Cause No. MCDC/E1358 of 2025 at the Milimani Chief Magistrate's Court, Nairobi, pleading cruelty and adultery on the part of the Applicant. The Applicant entered appearance on 12th September 2025 but, on the record before that Court, filed no response and did not attend the hearing of 4th November 2025. The Petition proceeded formally and was allowed the same day; a Decree Nisi issued, and it was made absolute on 4th December 2025. The Applicant's subsequent Application, dated 2nd December 2025, to set aside the divorce judgment on the footing that the parties had reconciled, was withdrawn by her on 5th December 2025. The marriage between the parties therefore stood, as at the date of the Notice of Motion now before me, fully and finally dissolved.
The Originating Summons
4. By an Originating Summons dated 15th January 2026 and brought under sections 7, 12 and 17 of the Matrimonial Property Act No. 49 of 2013 and Order 37 of the Civil Procedure Rules, 2010, the Applicant seeks, in substance: (a) a declaration that the properties known as Kericho/Kapsuser/5919, Kericho/Kapsuser/6942, Ngong/Ngong/26804, LR No. 631/238, Langata Commercial House No. 003-37, and Rongai/Lenginet Block 1/68, 1/63 and 1/53, together with motor vehicles registration numbers KCM 204P, KDG 224H, KCT 077X and KBR 525S, are matrimonial property; (b) a declaration as to the parties' respective financial and non-financial contributions to those properties; (c) an order for their division, including sale and equal division of the two motor vehicles specifically pleaded for that purpose; and (d) ancillary orders, including an order that the Respondent avail documents necessary to effect division, and a finding as to how buildings still under construction on three of the parcels are to be divided. The Applicant's Supporting and Verifying Affidavits, both sworn on 15th January 2026, plead that the parties acquired the suit properties during the subsistence of the marriage, that she personally purchased and developed the matrimonial home at Kericho/Kapsuser/5919, and that she developed two further properties using proceeds of sale of her own property and bank loans secured against her salary as an employee of Kabianga University.
The Notice of Motion and the procedural history
5. Filed together with the Originating Summons, is the Notice of Motion of 27th January 2026. It was supported by a Certificate of Urgency and by the Applicant's own affidavit sworn the same month, both essentially repeating the factual basis of the Originating Summons and adding the specific allegation, that the Respondent locked her and the children out of the matrimonial home on 12th December 2025. As already noted, the Application was first allowed on 9th March 2026 without the Respondent's participation; it was reinstated for inter-partes hearing on the Respondent's Application of 12th March 2026; and it is that reinstated Application, now argued on affidavit and (on the Respondent's side only) on written submissions, which I must determine.
C. THE APPLICANT'S CASE
6. The Applicant's case is drawn from her Supporting and Verifying A ffidavits sworn in support of the Originating Summons, and from her Supporting Affidavit and the grounds of the Notice of Motion (there being no submissions on her behalf). Read together, those affidavits give a property-by-property account of her claimed contribution, which it is necessary to set out with some particularity, since the strength of that account differs materially from one property to the next and that difference bears directly on my analysis below.
7. As to Kericho/Kapsuser/5919, the matrimonial home, she avers that although title is in the Respondent's name, she personally negotiated, contracted for, paid for and developed the property, having purchased it from one Ismael Sang. As to Kericho/Kapsuser/6942, she avers that she substantially contributed to its acquisition, development, maintenance and management through bank loans, her salary and proceeds of sale of her own property. As to Ngong/Ngong/26804, she gives a specific account: that she contributed Kshs. 350,000 toward the initial purchase price from per diem allowances earned on a three-month work trip to London in 2000 while employed at KEMRI, that the property was thereafter jointly developed, and that the family lived there from 2002 to 2018, after which it was agreed the property would be sold to meet the children's education expenses. As to LR No. 631/238, she avers that it was gifted to her by her own father and developed by her, that it is registered in the parties' joint names, and that on that footing she should on division take the larger, 80%, share.
8. As to the three parcels at Rongai/Lenginet — Block 1/68, 1/63 and 1/53 — she does not assert direct financial contribution to their acquisition; rather, she avers that her having taken on sole responsibility for the maintenance and management of the four properties already mentioned freed the Respondent to devote his time and resources to acquiring and developing those three parcels, on one of which he has since built a warehouse. As to Langata Commercial House No. 003-37, beyond including it, without further elaboration, among the properties said in general terms to have been paid for "entirely/substantially" by her, her affidavits contain no particularised account of any contribution of any kind. As to the motor vehicles, she avers that KCM 204P and KBR 525S have at all times been stationed at the Kapsuser farm for her dairy farming activities and for her and the children's use, and that she has personally maintained, fuelled and serviced them; she makes no averment of any kind concerning KDG 224H or KCT 077X beyond listing them among the suit properties.
9. She further avers that on 12th December 2025 — eight days after the divorce became final — the Respondent discreetly entered the matrimonial home while she was out of the compound and locked her and the children out of it, together with their personal effects and motor vehicle KCM 204P, and that he instructed workers at the property to bar her access by any means necessary. She avers that the Respondent instructed tenants at Kericho/Kapsuser/6942 and LR No. 631/238 to stop paying rent to her. On this footing she contends that, unless restrained, the Respondent will continue to lock her out of, and will sell, alienate or demarcate, the suit properties without her knowledge or consent, and that he is deliberately seeking to disinherit and disenfranchise her now that the marriage has been dissolved. She therefore seeks a temporary injunction in the terms set out at paragraph 1 above, pending the hearing and determination of the Originating Summons, together with costs.
D. THE RESPONDENT'S CASE
10. The Respondent opposes the Application in its entirety, by Replying Affidavit and written submissions. He denies that the suit properties were jointly acquired, and puts the Applicant to strict proof of any contribution, financial or otherwise, to their acquisition or development. He avers that it was he, not the Applicant, who instituted the divorce proceedings, in order to free himself from what he describes as the Applicant's conduct during the marriage, and that the Applicant, having been served and having entered appearance, chose neither to file a response nor to attend the hearing of the divorce petition.
11. On the specific allegations grounding the injunction, the Respondent's account differs sharply from the Applicant's. He avers that it is the Applicant, not he, who has been the aggressor since the divorce: that on or about 12th December 2025 she, accompanied by others, gained access to his home in Kericho, opened his safe and made away with title deeds and motor vehicle log books, a matter he reported to the Kericho DCI; that she chased away workers on his dairy farm and attempted, with the assistance of the OCPD Belgut, to install her own; that he was compelled to and did obtain a restraining order in Kericho MCELC No. E029 of 2026 barring her from his Kericho home; that she and the OCPD Belgut contacted and threatened his elderly mother in Kitale in an effort to locate him and his licensed firearm, a matter he has reported to the Independent Policing Oversight Authority; and that she went to his Nakuru property, removed car keys and log books for four vehicles, and, through a relative who worked as his farmhand, took maize and baled hay that have not been recovered. He deposes that he has never assaulted the Applicant and puts her to strict proof of each instance of alleged assault, by production of an occurrence book number, a P3 form, hospital records, a charge sheet or any restraining order — none of which, he avers, has been annexed to her affidavit.
12. On the law, the Respondent submits, relying principally on the Giella v Cassman Brown & Co Ltd test as sequentially applied, that the Applicant has failed to establish a prima facie case, since she has adduced no evidence that he intends to sell, lease, charge or otherwise alienate any of the suit properties, her apprehension being, on his submission, pure speculation; that she has shown no irreparable injury, since any beneficial interest ultimately found to exist can be compensated in damages, the properties being registered in his name and there being no evidence of any intended disposal; that the balance of convenience favours him, as the party in occupation and reliant on the farms for his livelihood; and that, in any event, the Applicant comes to equity with unclean hands, given the conduct summarised above, and is for that reason alone undeserving of a discretionary remedy. He asks that the Application be dismissed with costs.
E. A PRELIMINARY OBSERVATION: ABSENCE OF SUBMISSIONS BY THE APPLICANT
13. It is right to record, at the outset of my analysis, that the Applicant did not file written submissions notwithstanding the Court's directions. That omission does not, however, entitle the Court simply to enter an order in the Respondent's favour by default, still less to treat the Respondent's account of disputed facts as thereby proved. Submissions are argument, not evidence; the evidence properly before the Court on this Application is the parties' affidavits, and it is that evidence, together with the pleadings, which the Court is bound to evaluate on its merits.
F. ISSUES FOR DETERMINATION
14. The following issues arise for determination:
i. whether the Applicant has demonstrated a prima facie case with a probability of success sufficient to warrant interlocutory protection;
ii. whether the Applicant stands to suffer harm that cannot adequately be compensated by an award of damages;
iii. where, if the Court is in doubt on (i) and (ii), the balance of convenience lies;
iv. what bearing, if any, the conduct attributed to each party has on the exercise of the Court's discretion; and
v. what order, if any, should issue, and on what terms as to costs.
G. THE APPLICABLE LAW
15. Order 40 rule 1(a) of the Civil Procedure Rules, 2010 empowers the Court, where it is shown by affidavit or otherwise that property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, to grant a temporary injunction restraining that act, or to make such other order as it thinks fit to prevent the wasting, damaging, alienation, sale, removal or disposition of the property, until the disposal of the suit or further order.
16. The governing test remains that stated in Giella v Cassman Brown & Co Ltd [1973] EA 358:
“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.”
17. Those three limbs are to be applied sequentially, not cumulatively considered at large. In Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR the Court of Appeal held that the three conditions "are to be applied as separate, distinct and logical hurdles which the Applicant is expected to surmount sequentially," so that if a prima facie case is not established, irreparable injury and the balance of convenience need no consideration, and the existence of a prima facie case does not permit an applicant to leap-frog directly to an injunction without also crossing the remaining hurdles.
18. A prima facie case was defined by the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR as:
“…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.”
19. The same authority is equally important for two further propositions. First, it confirms that a party who comes to a Court of equity without utmost good faith may, on that ground alone, be refused an injunction notwithstanding an otherwise arguable case. Secondly, and just as significantly for present purposes, the Court of Appeal there stressed that it is not for a Court determining an interlocutory Application to resolve, once and for all, the very factual disputes that are properly reserved for trial; the danger of an interlocutory tribunal "trespassing on the jurisdiction of the judge who will eventually hear the case" by expressing concluded views on contested facts was expressly deprecated.
20. Where matrimonial property is concerned, Sections 6, 7 and 17 of the Matrimonial Property Act, No. 49 of 2013 are of particular relevance. Section 7 provides that ownership of matrimonial property "vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved." Section 17 separately empowers a person to apply to a Court for a declaration of rights to property contested between that person and a spouse, whether or not a divorce petition has been filed.
21. That the statute conditions division, but not declaration or interim protection, on dissolution was considered directly by the Court of Appeal in AKK v PKW [2020] KECA 335 (KLR) (Civil Appeal No. 61 of 2019), itself an appeal arising from an interlocutory injunction restraining a spouse from disposing of properties said to be matrimonial and requiring dividends and proceeds to be held in escrow pending trial. The Court of Appeal there distinguished the two provisions, holding, in effect, that while a Court "cannot divide matrimonial property between spouses until their divorce or their marriage is otherwise dissolved" under section 7, section 17 permits a Court to declare, and by necessary implication to protect pending determination of, a spouse's claimed interest in property irrespective of whether the marriage subsists. The Court of Appeal accordingly set aside a decision declining jurisdiction to grant interim protective relief before divorce, and remitted the Application for interlocutory injunction to be heard on its merits.
22. In ANW v GWK [2021] KEHC 3171 (KLR), the High Court applied that Court of Appeal authority to a materially similar Application — where, unlike here, the parties' divorce was still pending — and held that section 7 does not bar an Application for a declaration of rights, nor therefore an ancillary Application for protective interlocutory relief, merely because the marriage has not yet been dissolved; it is only the actual division of matrimonial property, as opposed to a declaration of interest in it or an order preserving it pending suit, that section 7 defers to the point of divorce or dissolution. The Court in ANW v GWK accordingly found a prima facie case established and granted a limited order preserving the status quo over the property the respondent there had already surrendered to the applicant's sole use and occupation, declining to extend that order to properties over which no such basis had been shown.
23. More directly in point still, because it too concerned an Application brought after the parties' marriage had already been dissolved, is JWG v GGW [2019] KEHC 7178 (KLR) (Nakuru Matrimonial Cause No. 12 of 2017). There, more than a decade after a decree absolute, a former spouse applied to restrain the other from dealing with five properties said to be matrimonial. Applying the ordinary Giella test, the High Court granted the injunction only in respect of the properties as to which the applicant had given a specific, particularised account of contribution during the marriage, and refused it as to properties inherited by the Respondent, holding that "no property is available to a spouse from the other spouse merely on the basis of being a wife or a husband. There must be contribution," and that a bare assertion that property was "acquired during coverture," without more, does not establish the beneficial entitlement necessary to found interlocutory relief. On the properties as to which contribution was shown, the Court held that, being real property, any adverse dealing with them pending trial was itself apt to cause irreparable harm. JWG v GGW is, in my respectful view, the closest analogue on the facts to the Application before me, and I return to it in my analysis of whether a prima facie case has been shown as to each of the individual suit properties.
24. Finally, where the Court remains in doubt after considering the first two limbs of the Giella test, it is to be guided by the principle, applied by the High Court in Meena Salon & Barbershop Ltd v Soroya Investment Ltd [2014] eKLR by reference to Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772, that "the Court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong'." That authority is also a useful illustration of an approach which, faced with genuine factual controversy on both sides which the Court could not resolve on affidavit, declined either to dismiss the Application outright or to grant the wide relief sought, and instead crafted a narrower, time-limited protective order.
H. ANALYSIS
(i) Prima facie case
25. I begin by observing that the marriage between the parties has already been dissolved by decree absolute, a position materially different from, and stronger for the Applicant than, that of the applicant in ANW v GWK, where the marriage still subsisted and the applicant's standing to bring even a declaratory claim under section 17 of the Matrimonial Property Act was itself in issue. No such threshold objection arises here: the Originating Summons is brought under section 7, and the precondition that the marriage be dissolved is, on the material before me, satisfied. The question at this stage is not, therefore, whether the Applicant may bring her claim at all, but whether she has shown a prima facie case that the suit properties, or some of them, are matrimonial property in which she holds a beneficial interest requiring protection pending trial.
26. Applying JWG v GGW, however, that finding cannot be made in blanket terms across all nine suit properties and four vehicles; it must be made property by property, according to whether the Applicant's affidavits give a particularised account of contribution capable of founding an arguable beneficial interest, or instead merely assert, without more, that the property was "acquired" or "registered" during the marriage. On that approach, and for the reasons given above, I am satisfied that a prima facie case is shown as to Kericho/Kapsuser/5919, Kericho/Kapsuser/6942, Ngong/Ngong/26804, LR No. 631/238, and motor vehicles KCM 204P and KBR 525S. In each case the Applicant identifies, with some particularity, the nature, timing and source of her claimed contribution — a purchase she says she personally negotiated and paid for, loans and salary and sale proceeds she says she applied to specific properties, a specific sum from a specific source applied to a specific purchase, a claimed joint proprietorship, or specific, continuous personal use and maintenance of specific vehicles — and each is squarely denied by the Respondent. That is a genuine and arguable dispute of exactly the kind Mrao Ltd describes, not a bare assertion of the kind JWG v GGW held insufficient; and it is not for me, at this interlocutory stage, to resolve it either way, that being the task reserved for the hearing of the Originating Summons.
27. I reach the opposite conclusion as to Langata Commercial House No. 003-37 and motor vehicles KDG 224H and KCT 077X. As to the former, the Applicant's affidavits go no further than to include it in a generalised, composite assertion that she paid "entirely/substantially" for a list of properties named together; unlike every other property in that list, it receives no individual treatment anywhere in her affidavits — no account of when, how, or to what extent she is said to have contributed to it. As to the two vehicles, there is no averment of any kind connecting the Applicant to their use, maintenance or acquisition. That is precisely the sort of bare, unparticularised assertion that JWG v GGW held insufficient to found a prima facie case; "no property is available to a spouse from the other spouse merely on the basis of being a wife or a husband" — or, for that matter, merely by being named on a list of suit properties without more. I am conscious that this is a preliminary, interlocutory assessment only, made on the material as it presently stands, and that nothing prevents the Applicant from adducing fuller particulars as to these items, whether in an amended or supplementary affidavit or at the hearing of the Originating Summons itself.
28. As to the Rongai/Lenginet parcels — Block 1/68, 1/63 and 1/53 — the Applicant does not claim direct financial contribution, but advances a distinct theory: that her assumption of sole responsibility for managing the other properties freed the Respondent to acquire and develop these three. Non-financial and indirect contributions of that kind are, in principle, capable of founding an interest in matrimonial property; section 12 of the Matrimonial Property Act contemplates exactly that form of contribution. I do not consider that theory to be fanciful. It is, however, considerably more attenuated than her account of the other properties — she gives no dates, no description of what exactly was built or acquired when, and no detail of how her management of the other properties is said to have translated into his acquisition of these ones — and it is a theory the Respondent's affidavit, which describes those parcels and his farming operations there in terms suggesting they are his own undertaking, does not directly engage with at all. On balance, I am not satisfied that this theory, as presently particularised, rises to the level of a prima facie case for purposes of interlocutory protection, though again without prejudice to it being developed further at trial.
29. Separately, I do not find that the Applicant has shown a prima facie threat of the kind Order 40 rule 1(a) is designed to guard against, namely that the property in dispute is "in danger of being wasted, damaged, or alienated." Her own account is that the Respondent has occupied and excluded her from the properties, not that he has taken or threatens to take any step toward selling, charging, leasing or otherwise disposing of them to a third party, and the Respondent unequivocally denies any such intention.
(ii) Irreparable injury
30. As to the properties and vehicles identified above, I am satisfied, following JWG v GGW, that if any of them were sold, charged or otherwise encumbered to a third party pending determination of the Originating Summons, the Applicant's ability to recover her proven share, or to have it protected against an innocent third-party purchaser or chargee, could be seriously and perhaps irreversibly compromised, in a manner not necessarily cured by an award of damages against the Respondent personally. That risk, however speculative on the present record, is precisely the mischief an anti-alienation order under Order 40 rule 1(a), and the kind of protective order the Court of Appeal contemplated in AKK v PKW, are designed to guard against.
31. As to the Applicant's exclusion from occupation of the properties, and in particular the matrimonial home, the position is different. The loss occasioned by exclusion from use and occupation — alternative accommodation, inconvenience, and the like — is, in principle, compensable in damages or accounted for in the eventual division exercise, and the Applicant has not shown, on this record, that continued exclusion pending the remaining course of the Originating Summons would cause her harm of a kind money cannot remedy. I bear in mind, too, that unlike the properties themselves, occupation is not a wasting or depreciating asset in the same sense; whatever occupation is ordered or restored can, if the Applicant ultimately succeeds, be factored into the final division.
(iii) Balance of convenience
32. I am not in doubt as to the narrower anti-alienation relief over the properties identified above. In any event, the balance of convenience favours a limited protective order rather than either of the extremes urged by the parties. On the one hand, preserving those properties in their current state pending the Originating Summons causes the Respondent no real prejudice: he does not say he wishes to sell, lease or charge them, so an order restraining him from doing so restrains him from nothing he says he intends to do, while affording real protection to the Applicant's pleaded interest should it be established at trial. On the other hand, disturbing the parties' current, if contested, occupation and management arrangements — in particular, ordering the Respondent to admit the Applicant to a home he currently occupies, or restraining him from directing the conduct of tenants and farm workers on properties he manages — would require this Court to resolve, on affidavit and at an interlocutory stage, sharply disputed and serious allegations of misconduct on both sides (Section D above) that neither party's affidavit evidence, without cross-examination or further proof, allows me safely to resolve. I am conscious, too, that the Respondent already holds an order of a coordinate Court, in Kericho MCELC No. E029 of 2026, addressing occupation of at least one of the same properties; it would be inappropriate for this Court, on this Application, to make orders that might be read as cutting across that order. The lower risk of injustice, applying Films Rover and Meena Salon, lies in preserving the subject-matter of the suit without disturbing the parties' present possession.
(iv) Conduct of the parties
33. The Respondent urges that the Applicant comes to equity with unclean hands and is for that reason alone disentitled to any relief, relying on the equitable maxim as applied in Mrao Ltd and, more tangentially, in John Njue Nyaga v Nicholas Njiru Nyaga & Another [2013] eKLR. I treat the latter authority with some caution: it was an appeal concerning the jurisdiction of a Land Disputes Tribunal to distribute family trust land, and its observation on clean hands was made in passing, in relation to the appellant's own secret dealings with family land, not in the context of an interlocutory injunction of the kind before me; it is, at best, persuasive on the general equitable principle and no more. That principle is nonetheless well established independently of that authority, including in Mrao Ltd itself. The difficulty for the Respondent is that the conduct he relies upon — the alleged break-in, removal of documents, interference with farm workers and tenants, and harassment of his mother — is itself the subject of serious, specific, but wholly untested allegations, denied or unaddressed on the present affidavits, and is, in substantial part, said to have occurred
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