Introduction
1. Before this court is a Notice of Motion application dated 26th September, 2023. The application seeks the following orders;
a) Spent;
b) That pending the hearing interparties of this application, a temporary injunction do issue restraining the defendant by herself, her servants, her agents, or any persons acting under her from selling, disposing, leasing, letting, entering, accessing or in any manner interfering with the portion known as Kwale/Mabokoni /1877 or in any way interfering with the applicant’s quiet occupation and enjoyment in the portion thereon;
c) That pending the hearing and determination of this application a temporary injunction do issue restraining the defendant by herself, her servants, her agents, or any persons acting under her from selling, disposing, leasing, letting, entering, accessing or in any manner interfering with the applicant’s quiet occupation and enjoyment in the portion thereon;
d) That pending the hearing and determination of the suit a temporary injunction do issue restraining the defendant by herself, her servants, her agents, or any persons acting under her from selling, disposing, leasing, letting, entering, accessing or in any manner interfering with the portion known as Kwale/Mabokoni/1877 or in any way interfering with the applicant’s quiet occupation and enjoyment in the portion thereon; and
e) That costs of this application be in the cause.
2. The application is premised on the grounds stated in the said Motion as well as on the supporting affidavit sworn by the Applicant on 26th September 2023.
Depositions by the Applicant
3. The Applicant’s case is that he married the Respondent on 22nd December 2011 at the Registrar’s Office in Mombasa. Their marriage was not blessed with any issue. They are now divorced. The Respondent acquired Title No.Kwale/Mabokoni/1877 prior to the marriage. After marriage, she left Kenya for California, in the USA, in 2014 and returned in 2023. During the period the Respondent was away, the Applicant was in full and exclusive occupation of the matrimonial home, which contains two houses, a 6-roomed house and a 10-roomed house. The Applicant contends that he made both direct and indirect contributions towards the improvement of the home by inter alia planting eucalyptus, mango, orange, coconut, casuarina, indigenous, lime and pawpaw trees and rearing cows and goats.
4. The Applicant further contended that he improved the home using his retirement benefits, having previously worked with an organization called Youth With Mission Organization. He also sank a well and connected the property to the national grid. He also entered into a tenancy agreement with a third party who operates a children’s home in the 6-roomed house. If the orders sought are not issued, the tenant, together with the children, will be evicted from the home and left homeless.
5. He averred that he has been receiving threats from the respondent’s agent seeking to evict him from the, matrimonial using force. The threat was reported at Diani Police Station. The respondent’s agent demolished the exterior wall of the home in order to frustrate and have him leave the matrimonial home. He lives in fear due to the numerous threats of eviction from the respondent and her agents, and if the orders sought are not granted, he will be evicted from the matrimonial home, and the respondent will be at liberty to dispose of the subject matter rendering the entire matrimonial cause an academic exercise.
Depositions by the Respondent
6. In response, the Respondent filed a replying affidavit sworn on 9th October 2023. She stated that she is a retired registered nurse. She came to Kenya in 1999 and was engaged as a volunteer with Youth With Mission in Makwang’ani, Kwale County. During her work, she noted that there were many poor and underprivileged children in Kwale who grew up impoverished due to a lack of food, sanitation, health care and education, and she decided to offer them the necessary care and support. She then returned to California, where she worked for two years at St. Joseph’s Hospital so as to gather sufficient funds and experience to start a clinic and a children’s home. She came back to Kenya in the year 2003 and opened a clinic and a children’s home in Wema, Shimba Hills and Maweche in Kwale under the name A.B.C Watoto Wa Kenya dispensary. The Children's Department demanded she get better facilities for the children as she was running the children’s homes in structures built with mud. That is when she acquired the suit property Title No. Kwale/Mabokoni/1877 for a consideration of Kes.200,000.00. The title deed was issued on 28th July 2010. She drilled a well on the suit property and used the water for the construction of the clinic (a 6-roomed building) and children’s home (10 10-roomed building) on the suit property.
7. She further stated that she met the Applicant in August or September 2011 and got married to him in December of the same year. She then invited him to live with her in one of the rooms she was occupying at the children’s quarters; thus, the applicant did not contribute to the acquisition of the suit property and or construction of the buildings therein.
8. She averred that in 2014, she had to run for her safety as the applicant was physically abusive, forcing her to leave Kenya. She came back in 2023. That is when she petitioned for divorce. Further, the applicant ran down the clinic, leading to its closure, and denied the children access to the children’s quarters. He then rented the premises to one Nelly, who has been running a children’s home there at a monthly rent of Kes.10,000.00 (the 6-roomed building) and the children’s quarters to different parties for a monthly rent of over Kes.20,000.00. For the last 9 ½ half years, the applicant has been collecting the rent from the said premises and using it exclusively.
9. She stated that the applicant has not improved the suit premises in any way and that the premises have become dilapidated due to his misuse. The applicant sold all assets, furniture and fittings that were on the premises. He also sold and consumed the farm animals that she was rearing, being 2 cows, 4 sheep, 3 goats, 6 ducks, 3 turkeys and a flock of chickens. The applicant cut down the trees that were originally on the suit property and replaced them with a few trees. Further, before she left the country in 2014, she permitted KPLC to erect a transformer on the suit property, which, in return, offered to supply power to the institution.
10. She further stated that when she returned to Kenya, she gave all tenants notice to vacate the property to enable her to carry out renovations, which they did on 26th September 2023 and 2nd October 2023. The Applicant left the premises for fear of the members of the community who ordered him to leave the property to enable her to carry out repairs so that the property could be used for the purpose it was intended for.
11. She averred that the suit property is not a matrimonial home as alleged by the applicant and that was developed solely for her charity work. The applicant has no beneficial interest in the suit property, nor has he made any direct/indirect contribution towards its improvement. She, therefore, urged the court to dismiss the application with costs.
Further deposition by the Applicant
12. The applicant filed a further affidavit sworn on 10th November 2023 in response to the respondent’s replying affidavit. He denied the contents of the replying affidavit. He stated the children in A.B.C Watoto wa Kenya dispensary had never used the said premises as boarding before or during the subsistence of their marriage. He alleged that he was the one who drilled the well and not the respondent.
13. He further stated that he is claiming a beneficial interest in the suit property on the basis that he has developed and taken care of the same from 2014 to 2023. He denied the allegation of him being abusive and violent towards the respondent. He alleged that when the respondent left for California, she left behind employees, including nurses, with unpaid salaries, which dues he paid using his pension money. The said payment rendered him financially unstable and unable to continue running the clinic. He deposed that he has only collected rent from the suit premises for 5 months.
14. He stated that the house was vandalised in the year 2020, and as a result, several assets were stolen, including furniture, a generator, a solar panel together with its battery and inverter, a television and double-decker beds. He reported the said incident at Diani Police Station. He further stated that there were no ducks left at the said home as she only left one cow and a goat, and both were poisoned by unknown people.
15. The applicant filed a further supplementary affidavit sworn on 5th December 2023. He reiterated his position in his affidavits and stated that his claim before the court was for a share of the matrimonial property and also for the beneficial interest for the amounts he used to develop and take care of the home during the subsistence of marriage and during the absence of the respondent.
16. He urged the court to allow the application as prayed.
Further Deposition by the Respondent
17. The respondent filed a supplementary affidavit sworn on 21st November 2023 vide which she reiterated the position in her replying affidavit. She denied the allegations by the applicant and stated that the applicant took advantage of employees’ salaries and withdrew Kes.250,000.00 from their jointly held account at Barclays Bank. The money that the applicant claims to have expended on repairs was money from the rental income that he has been collecting and utilising exclusively.
18. The application was canvassed by way of written submissions.
Submissions of the Applicant
19. The applicant, through his advocates Kilonzo &Aziz Company Advocates, filed written submissions dated 10th November 2023. Counsel submitted on two issues, namely, whether the applicant has met the test for grant of temporary injunctive orders; and whether the applicant was evicted from the matrimonial home erected on Title No. Kwale/Mabokoni /1877.
20. On the first issue, counsel relied on Order 40 Rule 1 of the Civil Procedure Rules, 2010, and the case of Giella versus Cassman Brown & Co.Ltd [1973] EA 356 and submitted that there are three tests that a court has to consider before issuing injunctive orders.
21. Counsel submitted that the applicant has to establish a prima facie. Counsel relied on the case of Mrao Ltd versus First American Bank of Kenya Ltd & 2 others [2003] eKLR and submitted that the applicant has to show that he has resided in the home situated on Title No. Kwale/Mabokoni/1877, since his marriage to the respondent until 2023, when he was evicted, and the applicant’s right of owning the home by virtue of his investment in it had been infringed by the respondent.
22. Counsel submitted that under the second test, the applicant has to establish that he shall suffer irreparable loss. Counsel relied on the case of Pius Kipchirchir Kogo v Frank Kimeli Tenai[2018]eKLR and submitted that the applicant had deponed in his affidavit that unless temporary injunction orders sought are granted, he will be evicted from the home, whereas he has nowhere else to reside. The loss he would thereby suffer cannot be compensated by an award of damages.
23. On the third test counsel submitted that the applicant has to demonstrate that the balance of convenience tilts in favour of allowing the injunction. Counsel submitted that the applicant has lived in the suit property since 2011, even after the defendant left for California.
24. On the second issue counsel submitted that the applicant has met the threshold for grant of temporary injunctive orders and urged the court to grant the same and allow the applicant to continue residing in the suit property pending the hearing and determination of the suit.
Submissions of the Respondent
25. The respondent, through her advocates Waithera Ngigi & Company Advocates, filed written submissions dated 21st November 2023.
26. Counsel relied on the case of Giella versus Cassman Brown (supra) and similarly submitted on the three principles a court considers in granting injunction orders.
27. On whether there was a prima facie case, counsel reiterated the respondent’s averments in her affidavits and submitted that the applicant has not demonstrated that he has a prima facie case with chances of success.
28. On whether the applicant would suffer irreparable loss if the orders prayed for were not granted, counsel submitted that the applicant has not tendered any evidence to demonstrate that the respondent is attempting to dispose of the suit property and or evict him from the suit property. He had not demonstrated the irreparable loss he would suffer other than stating that he has invested in the suit property and that the same is his home.
29. On balance of convenience counsel submitted that it tilts in favour of the respondent who is in occupation of the suit property. The respondent is undertaking renovations of the suit property, and it is not reasonable for the applicant to return to the premises while the works are being undertaken.
30. On whether it is tenable to allow the plaintiff into the suit property, counsel submitted that it would not be reasonable to have both parties reside on the suit property since they are divorced. Counsel relied on the case of PEL versus HL [2021]eKLR and urged the court to dismiss the application with costs.
Analysis and Determination
31. I have considered the application, the responses therein and the rival submissions by both counsels. Has a case been made for the issuance of the prayers sought?
32. Temporary injunction is provided for under Order 40 Rule 1 of the Civil Rules, 2010 provides:-
“Where in any suit it is proved by affidavit or otherwise—
(a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or
(b) that the defendant threatens or intends to remove or dispose of his property in the circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,
the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders. “
33. The three principles for granting an injunction were established in the case of Giella versus Cassman Brown & Co. Ltd (supra), where the Court of Appeal at Kampala stated:-
“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.”
34. In defining prima facie case the court in the case of JM v SMK & 4 others [2022] eKLR stated,
“What then constitutes a prima facie case? In the case of Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, the Court of Appeal held as follows:
“The principles which guide the Court in deciding whether or not to grant an interlocutory injunction are, first, an applicant must show 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... A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true that the Court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence...The terms “prima facie” case, and “genuine and arguable” case do not necessarily mean the same thing, for in using another term, namely a sustainable cause of action, the words “prima facie” are frequently used to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner of considering, which was in relation to the pleadings that had been put forward in the case. It would be in the appellant’s interest to adopt a genuine and arguable case standard rather than one of a prima facie case, the former being the lesser standard of the two...In civil cases a prima facie case is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.”
35. As regards the second condition, whether the Plaintiff stands to suffer irreparable loss, the court in the case of In Nguruman Limited versus Jan Bonde Nielsen & 2 Others [2014] eKLR stated:-
“On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.”
36. On the issue of balance of convenience, the court in the case of Pius Kipchirchir Kogo vs. Frank Kimeli Tenai (supra) held as follows:
“The meaning of balance of convenience in favor of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favor of the plaintiffs, the inconvenience caused to the plaintiff would be greater than that which would be caused to the defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the plaintiffs to show that the inconvenience caused to them would be greater than that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer? In other words, the plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than which is likely to arise from granting it.”
37. Has the Applicant satisfied the 3 conditions? I will look at each of them in turns.
38. The Applicant's case is that the suit property is matrimonial property, as he made improvements thereon during the period the Respondent was away. Although the Respondent denies that there were improvements, it is not in dispute that the Respondent was out of Kenya for a considerable period of time. During this period, the Applicant was in possession of the suit property. Whether or not there were improvements that would amount to contribution can only be established once the case is heard on merits. In my view, therefore, there is a prima facie that can only be determined upon a hearing. That being the case, the Applicant has met the first test.
39. Would the Applicant be compensated by an award of damages if the injunction is denied? If injunctive relief is not granted, the Respondent will be at liberty to dispose of the suit premise. Being a foreign national, it would be difficult to enforce a judgment against her in the event she leaves Kenya. An award of damages to the Applicant, payable by her, would, in those circumstances, be academic. That being the case, I find and hold that the second test has been met.
40. Where does the balance of convenience tilt? In my view, it would be more prudent to allow the status quo currently holding to subsist until the matrimonial suit is heard and determined.
41. The upshot of the foregoing is that it is the finding of this court that the application has merit. The same is allowed.
42. As this is a family matter, I make no order as to costs.
43. In the interests of justice this matter will be listed for hearing on priority basis.
Orders accordingly.
Dated and signed at Mombasa this 13th day February 2024
1. Before this court is a Notice of Motion application dated 26th September, 2023. The application seeks the following orders;
a) Spent;
b) That pending the hearing interparties of this application, a temporary injunction do issue restraining the defendant by herself, her servants, her agents, or any persons acting under her from selling, disposing, leasing, letting, entering, accessing or in any manner interfering with the portion known as Kwale/Mabokoni /1877 or in any way interfering with the applicant’s quiet occupation and enjoyment in the portion thereon;
c) That pending the hearing and determination of this application a temporary injunction do issue restraining the defendant by herself, her servants, her agents, or any persons acting under her from selling, disposing, leasing, letting, entering, accessing or in any manner interfering with the applicant’s quiet occupation and enjoyment in the portion thereon;
d) That pending the hearing and determination of the suit a temporary injunction do issue restraining the defendant by herself, her servants, her agents, or any persons acting under her from selling, disposing, leasing, letting, entering, accessing or in any manner interfering with the portion known as Kwale/Mabokoni/1877 or in any way interfering with the applicant’s quiet occupation and enjoyment in the portion thereon; and
e) That costs of this application be in the cause.
2. The application is premised on the grounds stated in the said Motion as well as on the supporting affidavit sworn by the Applicant on 26th September 2023.
Depositions by the Applicant
3. The Applicant’s case is that he married the Respondent on 22nd December 2011 at the Registrar’s Office in Mombasa. Their marriage was not blessed with any issue. They are now divorced. The Respondent acquired Title No.Kwale/Mabokoni/1877 prior to the marriage. After marriage, she left Kenya for California, in the USA, in 2014 and returned in 2023. During the period the Respondent was away, the Applicant was in full and exclusive occupation of the matrimonial home, which contains two houses, a 6-roomed house and a 10-roomed house. The Applicant contends that he made both direct and indirect contributions towards the improvement of the home by inter alia planting eucalyptus, mango, orange, coconut, casuarina, indigenous, lime and pawpaw trees and rearing cows and goats.
4. The Applicant further contended that he improved the home using his retirement benefits, having previously worked with an organization called Youth With Mission Organization. He also sank a well and connected the property to the national grid. He also entered into a tenancy agreement with a third party who operates a children’s home in the 6-roomed house. If the orders sought are not issued, the tenant, together with the children, will be evicted from the home and left homeless.
5. He averred that he has been receiving threats from the respondent’s agent seeking to evict him from the, matrimonial using force. The threat was reported at Diani Police Station. The respondent’s agent demolished the exterior wall of the home in order to frustrate and have him leave the matrimonial home. He lives in fear due to the numerous threats of eviction from the respondent and her agents, and if the orders sought are not granted, he will be evicted from the matrimonial home, and the respondent will be at liberty to dispose of the subject matter rendering the entire matrimonial cause an academic exercise.
Depositions by the Respondent
6. In response, the Respondent filed a replying affidavit sworn on 9th October 2023. She stated that she is a retired registered nurse. She came to Kenya in 1999 and was engaged as a volunteer with Youth With Mission in Makwang’ani, Kwale County. During her work, she noted that there were many poor and underprivileged children in Kwale who grew up impoverished due to a lack of food, sanitation, health care and education, and she decided to offer them the necessary care and support. She then returned to California, where she worked for two years at St. Joseph’s Hospital so as to gather sufficient funds and experience to start a clinic and a children’s home. She came back to Kenya in the year 2003 and opened a clinic and a children’s home in Wema, Shimba Hills and Maweche in Kwale under the name A.B.C Watoto Wa Kenya dispensary. The Children's Department demanded she get better facilities for the children as she was running the children’s homes in structures built with mud. That is when she acquired the suit property Title No. Kwale/Mabokoni/1877 for a consideration of Kes.200,000.00. The title deed was issued on 28th July 2010. She drilled a well on the suit property and used the water for the construction of the clinic (a 6-roomed building) and children’s home (10 10-roomed building) on the suit property.
7. She further stated that she met the Applicant in August or September 2011 and got married to him in December of the same year. She then invited him to live with her in one of the rooms she was occupying at the children’s quarters; thus, the applicant did not contribute to the acquisition of the suit property and or construction of the buildings therein.
8. She averred that in 2014, she had to run for her safety as the applicant was physically abusive, forcing her to leave Kenya. She came back in 2023. That is when she petitioned for divorce. Further, the applicant ran down the clinic, leading to its closure, and denied the children access to the children’s quarters. He then rented the premises to one Nelly, who has been running a children’s home there at a monthly rent of Kes.10,000.00 (the 6-roomed building) and the children’s quarters to different parties for a monthly rent of over Kes.20,000.00. For the last 9 ½ half years, the applicant has been collecting the rent from the said premises and using it exclusively.
9. She stated that the applicant has not improved the suit premises in any way and that the premises have become dilapidated due to his misuse. The applicant sold all assets, furniture and fittings that were on the premises. He also sold and consumed the farm animals that she was rearing, being 2 cows, 4 sheep, 3 goats, 6 ducks, 3 turkeys and a flock of chickens. The applicant cut down the trees that were originally on the suit property and replaced them with a few trees. Further, before she left the country in 2014, she permitted KPLC to erect a transformer on the suit property, which, in return, offered to supply power to the institution.
10. She further stated that when she returned to Kenya, she gave all tenants notice to vacate the property to enable her to carry out renovations, which they did on 26th September 2023 and 2nd October 2023. The Applicant left the premises for fear of the members of the community who ordered him to leave the property to enable her to carry out repairs so that the property could be used for the purpose it was intended for.
11. She averred that the suit property is not a matrimonial home as alleged by the applicant and that was developed solely for her charity work. The applicant has no beneficial interest in the suit property, nor has he made any direct/indirect contribution towards its improvement. She, therefore, urged the court to dismiss the application with costs.
Further deposition by the Applicant
12. The applicant filed a further affidavit sworn on 10th November 2023 in response to the respondent’s replying affidavit. He denied the contents of the replying affidavit. He stated the children in A.B.C Watoto wa Kenya dispensary had never used the said premises as boarding before or during the subsistence of their marriage. He alleged that he was the one who drilled the well and not the respondent.
13. He further stated that he is claiming a beneficial interest in the suit property on the basis that he has developed and taken care of the same from 2014 to 2023. He denied the allegation of him being abusive and violent towards the respondent. He alleged that when the respondent left for California, she left behind employees, including nurses, with unpaid salaries, which dues he paid using his pension money. The said payment rendered him financially unstable and unable to continue running the clinic. He deposed that he has only collected rent from the suit premises for 5 months.
14. He stated that the house was vandalised in the year 2020, and as a result, several assets were stolen, including furniture, a generator, a solar panel together with its battery and inverter, a television and double-decker beds. He reported the said incident at Diani Police Station. He further stated that there were no ducks left at the said home as she only left one cow and a goat, and both were poisoned by unknown people.
15. The applicant filed a further supplementary affidavit sworn on 5th December 2023. He reiterated his position in his affidavits and stated that his claim before the court was for a share of the matrimonial property and also for the beneficial interest for the amounts he used to develop and take care of the home during the subsistence of marriage and during the absence of the respondent.
16. He urged the court to allow the application as prayed.
Further Deposition by the Respondent
17. The respondent filed a supplementary affidavit sworn on 21st November 2023 vide which she reiterated the position in her replying affidavit. She denied the allegations by the applicant and stated that the applicant took advantage of employees’ salaries and withdrew Kes.250,000.00 from their jointly held account at Barclays Bank. The money that the applicant claims to have expended on repairs was money from the rental income that he has been collecting and utilising exclusively.
18. The application was canvassed by way of written submissions.
Submissions of the Applicant
19. The applicant, through his advocates Kilonzo &Aziz Company Advocates, filed written submissions dated 10th November 2023. Counsel submitted on two issues, namely, whether the applicant has met the test for grant of temporary injunctive orders; and whether the applicant was evicted from the matrimonial home erected on Title No. Kwale/Mabokoni /1877.
20. On the first issue, counsel relied on Order 40 Rule 1 of the Civil Procedure Rules, 2010, and the case of Giella versus Cassman Brown & Co.Ltd [1973] EA 356 and submitted that there are three tests that a court has to consider before issuing injunctive orders.
21. Counsel submitted that the applicant has to establish a prima facie. Counsel relied on the case of Mrao Ltd versus First American Bank of Kenya Ltd & 2 others [2003] eKLR and submitted that the applicant has to show that he has resided in the home situated on Title No. Kwale/Mabokoni/1877, since his marriage to the respondent until 2023, when he was evicted, and the applicant’s right of owning the home by virtue of his investment in it had been infringed by the respondent.
22. Counsel submitted that under the second test, the applicant has to establish that he shall suffer irreparable loss. Counsel relied on the case of Pius Kipchirchir Kogo v Frank Kimeli Tenai[2018]eKLR and submitted that the applicant had deponed in his affidavit that unless temporary injunction orders sought are granted, he will be evicted from the home, whereas he has nowhere else to reside. The loss he would thereby suffer cannot be compensated by an award of damages.
23. On the third test counsel submitted that the applicant has to demonstrate that the balance of convenience tilts in favour of allowing the injunction. Counsel submitted that the applicant has lived in the suit property since 2011, even after the defendant left for California.
24. On the second issue counsel submitted that the applicant has met the threshold for grant of temporary injunctive orders and urged the court to grant the same and allow the applicant to continue residing in the suit property pending the hearing and determination of the suit.
Submissions of the Respondent
25. The respondent, through her advocates Waithera Ngigi & Company Advocates, filed written submissions dated 21st November 2023.
26. Counsel relied on the case of Giella versus Cassman Brown (supra) and similarly submitted on the three principles a court considers in granting injunction orders.
27. On whether there was a prima facie case, counsel reiterated the respondent’s averments in her affidavits and submitted that the applicant has not demonstrated that he has a prima facie case with chances of success.
28. On whether the applicant would suffer irreparable loss if the orders prayed for were not granted, counsel submitted that the applicant has not tendered any evidence to demonstrate that the respondent is attempting to dispose of the suit property and or evict him from the suit property. He had not demonstrated the irreparable loss he would suffer other than stating that he has invested in the suit property and that the same is his home.
29. On balance of convenience counsel submitted that it tilts in favour of the respondent who is in occupation of the suit property. The respondent is undertaking renovations of the suit property, and it is not reasonable for the applicant to return to the premises while the works are being undertaken.
30. On whether it is tenable to allow the plaintiff into the suit property, counsel submitted that it would not be reasonable to have both parties reside on the suit property since they are divorced. Counsel relied on the case of PEL versus HL [2021]eKLR and urged the court to dismiss the application with costs.
Analysis and Determination
31. I have considered the application, the responses therein and the rival submissions by both counsels. Has a case been made for the issuance of the prayers sought?
32. Temporary injunction is provided for under Order 40 Rule 1 of the Civil Rules, 2010 provides:-
“Where in any suit it is proved by affidavit or otherwise—
(a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or
(b) that the defendant threatens or intends to remove or dispose of his property in the circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,
the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders. “
33. The three principles for granting an injunction were established in the case of Giella versus Cassman Brown & Co. Ltd (supra), where the Court of Appeal at Kampala stated:-
“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.”
34. In defining prima facie case the court in the case of JM v SMK & 4 others [2022] eKLR stated,
“What then constitutes a prima facie case? In the case of Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, the Court of Appeal held as follows:
“The principles which guide the Court in deciding whether or not to grant an interlocutory injunction are, first, an applicant must show 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... A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true that the Court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence...The terms “prima facie” case, and “genuine and arguable” case do not necessarily mean the same thing, for in using another term, namely a sustainable cause of action, the words “prima facie” are frequently used to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner of considering, which was in relation to the pleadings that had been put forward in the case. It would be in the appellant’s interest to adopt a genuine and arguable case standard rather than one of a prima facie case, the former being the lesser standard of the two...In civil cases a prima facie case is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.”
35. As regards the second condition, whether the Plaintiff stands to suffer irreparable loss, the court in the case of In Nguruman Limited versus Jan Bonde Nielsen & 2 Others [2014] eKLR stated:-
“On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.”
36. On the issue of balance of convenience, the court in the case of Pius Kipchirchir Kogo vs. Frank Kimeli Tenai (supra) held as follows:
“The meaning of balance of convenience in favor of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favor of the plaintiffs, the inconvenience caused to the plaintiff would be greater than that which would be caused to the defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the plaintiffs to show that the inconvenience caused to them would be greater than that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer? In other words, the plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than which is likely to arise from granting it.”
37. Has the Applicant satisfied the 3 conditions? I will look at each of them in turns.
38. The Applicant's case is that the suit property is matrimonial property, as he made improvements thereon during the period the Respondent was away. Although the Respondent denies that there were improvements, it is not in dispute that the Respondent was out of Kenya for a considerable period of time. During this period, the Applicant was in possession of the suit property. Whether or not there were improvements that would amount to contribution can only be established once the case is heard on merits. In my view, therefore, there is a prima facie that can only be determined upon a hearing. That being the case, the Applicant has met the first test.
39. Would the Applicant be compensated by an award of damages if the injunction is denied? If injunctive relief is not granted, the Respondent will be at liberty to dispose of the suit premise. Being a foreign national, it would be difficult to enforce a judgment against her in the event she leaves Kenya. An award of damages to the Applicant, payable by her, would, in those circumstances, be academic. That being the case, I find and hold that the second test has been met.
40. Where does the balance of convenience tilt? In my view, it would be more prudent to allow the status quo currently holding to subsist until the matrimonial suit is heard and determined.
41. The upshot of the foregoing is that it is the finding of this court that the application has merit. The same is allowed.
42. As this is a family matter, I make no order as to costs.
43. In the interests of justice this matter will be listed for hearing on priority basis.
Orders accordingly.
Dated and signed at Mombasa this 13th day February 2024