JUDGEMENT
1. The Appellant herein being dissatisfied by a Ruling pronounced by Hon. Wattimah, PM (hereinafter referred to as “the Trial Court” ) on the 09.12.2024 in the proceedings known as ELDORET CHIEF MAGISTRATES COURT ENVIRONMENT & LAND COURT CASE NO. E146 OF 2024 (hereinafter referred to as “the Trial Court proceedings” ) did file a Memorandum of Appeal dated 05.08.2025 (hereinafter referred to as “the present Appeal” ) seeking the following Orders; -
i) The Appeal be allowed.
ii) The Ruling of the Sub-Ordinate Court be set-aside and the 1 st Respondent’s Notice of Motion dated 2 nd September 2024 be dismissed with costs.
iii) The Respondents pay the costs of the Appeal.
2. The grounds in support of the above prayers were also outlined in the Memorandum of Appeal dated 05.08.2025 and can be summarised as follows; -
I. THAT the Learned Magistrate did err in law and fact in finding that the 1 st Respondent had demonstrated that her spousal consent was required to create the charge over the suit properties without proof of marriage to the 2 nd Respondent.
II. THAT the Learned Magistrate erred in law and in fact in finding that spousal consent was required for registration of a charge over the properties title number PIONEER/NGERIA BLOCK 1 (EATEC) 9296 and PIONEER/NGERIA BLOCK 1 (EATEC) 9297 when the Charge was registered on the 02.03.2011 when spousal consent was not required under the laws of Kenya.
III. THAT the Learned Magistrate erred in law and in fact in finding that the 1 st Respondent’s spousal consent was required to charge the property NANDI/KIMINDA/2142 when in the same Charge instrument, the 2 nd Respondent deponed an affidavit to the effect that he was not married, that the property did not form part of any matrimonial property and that he did not require the consent of any spouse, family or community member to charge the property.
IV. THAT the Learned Magistrate erred in law and fact in making a finding that the balance of convenience was in favour of granting the injunction without establishing a prima facie case nor making a finding that damages was an inadequate remedy as enacted in GIELLA-VERSUS-CASSMAN BROWN.
V. THAT the Learned Magistrate erred in law and in fact in granting an injunction against the sale of properties title numbers PIONEER/NGERIA BLOCK 1 (EATEC)/9296 & 9297 when the two properties had been sold prior to the filing of the suit and the application.
VI. THAT the Learned Magistrate erred in law and in fact in granting an injunction against the sale of property title number NANDI/KIMINDA/2142 when the Appellant’s right of sale had accrued and due process followed.
VII. THAT the Learned Magistrate erred in law and in fact in failing to find that the 1 st Respondent was forum shopping and that the suit and application were an abuse of the Court process meant to delay the Appellant’s statutory power of sale.
VIII. THAT the Learned Magistrate erred in law and in fact in allowing the Notice of Motion dated 2 nd September 2024.
3. The present Appeal was duly served on the 1 st and 2 nd Respondents.
4. Upon service, the 1 st Respondent express her intention to oppose the present Appeal while the 2 nd Respondent did not attend any of the proceedings before this Court or file any documents thereof.
5. The present Appeal was subsequently admitted on the 19.01.2026 and parties were directed to file their submissions in either support of the same or opposing the same.
6. The Appellant in compliance with the above directions did prepare, file and serve their submissions dated 25.02.2026 while the 1 st Respondent’s submissions were dated 25.02.2026.
7. It is important to for the Court to remind itself that it has been called to exercise its appellate jurisdiction as regards the outcome of the Notice of Motion dated 02.09.2024 which was determined through the Trial Court Ruling pronounced on 09.12.2024.
8. The principles guiding this Court in exercise of its Appellate jurisdiction were discussed in the case of SELLE & ANOTHER-VERSUS- ASSOCIATED MOTOR BOAT CO.LTD & OTHERS (1968) EA 123 where the Court of Appeal made the following observations; -
“A first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal.
A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.”
9. With the above guidance, this Court is therefore required to re-evaluate the Notice of Motion dated 02.09.2024 by going through the facts thereof, identifying the issues for determination and finally independently make its own conclusions of the same.
10. Thereafter, make a determination on whether the Trial Court Ruling did in fact consider the correct facts, correct applicable law and therefore arrived at a correct determination or not.
11. Keeping the above in mind, the Court will now proceed to re-evaluate the Notice of Motion dated 02.09.2024 and make its own determination of the facts and issues therein before making a finding as to whether the Trial Court Ruling was proper or not.
FACTS & PRAYERS PLEADED IN THE APPLICATION DATED 02.09.2024.
12. The 1 st Respondent herein did institute the Trial Court proceeding through a Plaint dated 02.09.2024 against the 2 nd Respondent and the Appellant.
13. Together with the Plaint dated 02.09.2024, the 1 st Respondent did file a Notice of Motion Application dated 02.09.2024 which sought the following Orders against the 2 nd Respondent and the Appellant herein; -
a) THAT the Application be certified urgent and service of the same be dispensed with in the first instance.
b) THAT pending the hearing and determination of this Application, this Honourable Court be pleased to grant temporary injunction orders to stop the sale of Land Parcels PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142.
c) THAT pending the hearing and determination of the main hearing, this Honourable Court be pleased to grant temporary injunction orders to stop the sale of Land Parcels PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142.
d) Such further and/or other orders be made as the Court may deem fir, expedient and just to grant.
e) Costs be in the cause.
14. The facts and/or grounds in support of the above prayers are outlined in the body of the Notice of Motion dated 02.09.2024 as well as the Supporting Affidavit sworn on the same date by the 1 st Respondent and can be summarised as follows; -
i) The 1 st Respondent was the lawful wife of the 2 nd Respondent herein.
ii) The properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296, 9297 and NANDI/KIMINDA/2142 are matrimonial properties as described under Section 6 of the Matrimonial Properties Act.
iii) It was therefore a mandatory legal requirement that the 1 st Respondent should give her spousal consent if any alienation and/or legal process is to be undertaken relating to the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296, 9297 and NANDI/KIMINDA/2142.
iv) However, the 2 nd Respondent without obtaining the Spousal Consent of the 1 st Respondent did offer the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296, 9297 and NANDI/KIMINDA/2142 as collateral and/or security to the Appellant.
v) In essence, the 1 st Respondent did plead that the Charge registered on the properties namely PIONEER/NGERIA BLOCK 1 (EATEC)/9296, 9297 and NANDI/KIMINDA/2142 were illegal, unlawful and interfered with her rights as a spouse to the 2 nd Respondent.
vi) The 1 st Respondent did plead that is if Orders sought were not granted, then she would stand to suffer irreparable harm and injury as the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296, 9297 and NANDI/KIMINDA/2142 were where her matrimonial homes were established and any sale would render her and the children homeless.
vii) In conclusion, the 1 st Respondent herein sought the Trial Court to grant the Orders sought in the Notice of Motion Application dated 02.09.2024.
15. The Notice of Motion Application dated 02.09.2024 was duly served on the Appellant and the 2 nd Respondent herein.
16. The Appellant did oppose the Notice of Motion Application dated 02.09.2024 through a Replying Affidavit dated 26.09.2024.
17. The 2 nd Respondent on the other hand did not file any document either in support of the Notice of Motion Application dated 02.09.2024 or in opposition of the same.
18. The Appellant in the Replying Affidavit dated 26.09.2024 did plead the following facts in opposition of the Notice of Motion Application dated 02.09.2024; -
i) The 2 nd Respondent during the period between 2011 and 2016 did request for financial facilities from the Appellant as demonstrated in the Loan Application Letters attached herein.
ii) According to the Appellant, the first properties to be offered as collateral by the 2 nd Respondents were PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and 9297 which a lawful and valid Charge was registered on them on the 02.03.2011 as demonstrated by the Charge attached therein.
iii) The Appellant did plead and submit that the 2 nd Respondent did service the financial facility in accordance with the terms and conditions therein until the year 2018 when there was a default.
iv) The Appellant did produce various Demand Letters and Statutory Notices issued to the 2 nd Respondent to redeem the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and 9297 but unfortunately, he was not able to do so.
v) Consequently therefore, the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and 9297 were subsequently sold through a public auction on the 16.05.2025 and the appropriate of Sale and Certificate of Sale dated 21.03.2024 and 16.05.2024 issued respectively.
vi) The Appellant did oppose the 1 st Respondent’s allegation that a spousal consent was required before the charging of the two properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and 9297 for the reason that as at 02.03.2011 when the Charge was created and registered, the Applicable law did not require any consent from the spouse of a registered owner.
vii) The Appellant in fact did point out that the legal requirement of spousal Consent did come into effect through the provisions of the Land Registration Act, No. 3 of 2012 and could not apply retrospectively.
viii) In conclusion therefore, the Appellant did plead and submit that the Charge registered over the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and 9297 were lawful and the subsequent sale by public auction procedural and binding on the 2 nd Respondent.
ix) As regards the third property which is NANDI/KIMINDA/2142, the 2 nd Respondent also offer the same as collateral for the financial facilities that had been advanced to him by the Respondent.
x) The Appellant did plead and submit that a Charge dated 16.01.2014 was duly registered against the title of the property known as NANDI/KIMINDA/2142 by the 2 nd Respondent.
xi) During the preparation of the Charge dated 16.01.2014 against the property known as NANDI/KIMINDA/2142, the 2 nd Respondent did make an Oath by way of an Affidavit and/or Statutory Declaration dated 15.01.2014 that he was not lawful married and the said property did not form part of any matrimonial asset.
xii) In essence, the Appellants did deny the contents of the Affidavit or Statutory Declaration produced by the 1 st Respondent to the effect that she was married to the 2 nd Respondent.
xiii) The Appellant did further plead that if any marriage did exist between the 1 st and 2 nd Respondents, then the same must have been registered with the Registrar of Marriages upon the enactment of the Marriage Act, 2014.
xiv) Consequently, the Appellant did dispute the allegation that the property known as NANDI/KIMINDA/2142 was a matrimonial property between the 1 st and 2 nd Respondents herein.
xv) Be that as it may, the Appellant did plead that the 2 nd Respondent was unable to meet his financial obligations in the year 2018.
xvi) Based on this inability, the Appellant did proceed to issue the required Demand Letters and Statutory Notices as attached in this Replying Affidavit to enable the 2 nd Respondent redeem the same.
xvii) Unfortunately, the 2 nd Respondent was unable to redeem the property known as NANDI/KIMINDA/2142 and the Appellant is now in the process of realising its security by way of sale.
xviii) In conclusion thereof, the Appellant was of the view that the prayers sought by the 1 st Respondent were not merited and the Notice of Motion Application dated 02.09.2024 should be dismissed with costs.
19. The Replying Affidavit dated 26.09.2024 was duly served on the 1 st and 2 nd Respondents.
20. On the 02.10.2024, the 1 st and 2 nd Respondents were granted leave to prepare, file and serve any Further Affidavit in response to the Replying Affidavit dated 26.09.2024 within 7 days thereafter but none was filed.
21. Similarly, the Trial Court did direct that the Notice of Motion Application would be canvassed by way of written submissions with both parties being granted leave to file the same within 30 days from 02.10.2024.
22. This Court has perused the Trial Court File and the Record of Appeal and takes note that the neither the 1 st Respondent nor the 2 nd Respondents herein did file any submissions in support of the Notice of Motion Application dated 02.09.2024.
23. The Appellant on the other hand did file its submissions in opposition of the Notice of Motion Application dated 02.09.2024 dated 31.10.2024.
24. The Court having perused all the pleadings placed before the Trial Court and the proceedings thereof, the issues for determination in the Notice of Motion Application dated 02.09.2024 were as follows; -
ISSUE NO.1- IS THE 1 ST RESPONDENT ENTITLED TO AN ORDER OF TEMPORARY INJUNCTION AGAINST THE APPELLANT PROHIBITING THE SALE OF THE PROPERTIES KNOWN AS LR.NO. PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142?
ISSUE NO.2- IS THE 1 ST RESPONDENT ENTITLED TO ORDERS SOUGHT IN THE NOTICE OF MOTION DATED 02.09.2024?
ISSUE NO.3- WHO BEARS THE COSTS OF THE NOTICE OF MOTION APPLICATION DATED 02.09.2024?
ISSUE NO.4- IS THE PRESENT APPEAL MERITED OR NOT?
ISSUE NO.5- WHO BEARS THE COSTS OF THE PRESENT APPEAL.
25. The Court having duly identified the issues for determination in the Notice of Motion Application dated 02.09.2024, the same will now be discussed hereinbelow with a view of making its own independent findings on the same.
ISSUE NO.1- IS THE 1 ST RESPONDENT ENTITLED TO AN ORDER OF TEMPORARY INJUNCTION AGAINST THE APPELLANT PROHIBITING THE SALE OF THE PROPERTIES KNOWN AS LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142?
26. The first issue for determination is whether or not the 1 st Respondent was entitled to an order of temporary injunction against the Appellant stopping any sale of the properties namely LR.NO. PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142?
27. According to the 1 st Respondent, the main reason as to why the Appellant was to be injuncted from selling the properties known as LR.NO. PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142 was the fact that they were matrimonial properties between herself and the 2 nd Respondent.
28. The document that the 1 st Respondent did produce before the Trial Court to confirm her marriage to the 2 nd Respondent was an Affidavit and/or Statutory Declaration sworn sometime in March 2010.
29. The 1 st Respondent therefore did plead that the 2 nd Respondent could not charge the properties namely PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142 without obtaining a spousal consent from her.
30. The 1 st Respondent did further plead that any sale of the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142 as well as the registration of the Charges thereof were illegal and unlawful hence could not give any rights of sale to any of them.
31. The Appellant on the other hand did oppose this position by the 1 st Respondent.
32. The Appellant’s position was that first and foremost, the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142 were charged at different times.
33. The Appellant did plead that the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and PIONEER/NGERIA BLOCK 1 (EATEC)/9297 were charged on the 02.03.2011 pursuant to the provisions of Section 108 of the Registered Land Act, Cap 300.
34. On the other hand, the property known as NANDI/KIMINDA/2142 was charged on 16.01.2014 pursuant to the provisions of Section 108 of the Land Registration Act, No. 3 of 2012.
35. The Appellants did submit that the provisions of the Registered Land Act, Cap 300 (now Repealed) did not have a provision that a spousal consent was mandatory in the event a registered owner so desired to either charge or alienate any property thereof.
36. However, upon the enactment of the Land Registration Act, No.3 of 2012, the provision requiring spousal consent was enacted and can only apply after the date of enactment and not retrospectively.
37. The Court having considered the two opposing views, it is clear that indeed the three properties namely PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142 were charged at different times as is provided in the Charges dated 02.03.2011 and 15.01.2014.
38. The question that follows thereafter is whether or not the 1 st Respondent did satisfy the ingredients of granting a temporary injunction prohibiting the same of any of the three properties namely PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142 to warrant the issuance of the same?
39. It is settled law while Courts consider whether or not to grant Temporary Injunctions, the three guiding principles are the presences of a prima facie case, whether if the injunction is not issued, the party will suffer irreparable loss and/or injury that cannot be compensated by way of damages and lastly in whose favour the balance of convenience tilts.
40. Starting with the principle of establishing a prima facie case, it is clear in the mind of this Court that this obligation was on the 1 st Respondent’s who had instituted the proceeding before the Trial Court.
41. Section 107 (1) of the Evidence Act, Cap 80 specifically provides that whoever desires a Court to give judgement as to any legal right or liability dependent on the existence of the facts which he and/or she asserts must prove that those facts exist.
42. According to the Plaint dated 02.09.2024 and the Notice of Motion Application dated 02.09.2024, the 1 st Respondent who was the Plaintiff herein did plead that she was the legal wife of the 2 nd Respondent herein.
43. To demonstrate the existence of the marriage been the 1 st Respondent and the 2 nd Respondent, a Joint Affidavit dated 03.03.2010 sworn by both the 1 st and 2 nd Respondents was annexed therein.
44. It was therefore the 1 st Respondent’s legal position that any transaction done by the 2 nd Respondent after 03.03.2010 required could only be with her Consent.
45. Consequently, the 1 st Respondent did plead that the Charges dated 02.03.2011 and 15.01.2014 issued in favour of the Appellant were unlawful, illegal, null and void.
46. As earlier stated, the Appellant’s position was simple and clear.
47. Regarding the Charge dated 02.03.2011 relating to the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and PIONEER/NGERIA BLOCK 1 (EATEC)/9297, the Spousal Consent was not provided for in law and not a mandatory requirement.
48. Regarding the Charge dated 15.01.2014, the 2 nd Respondent did make a Statutory Declaration dated 15.01.2014 to the effect that he was not married and therefore the provision of spousal Consent although in existence could not apply.
49. It is the Court’s considered view and finding that the prima facie issue to be considered in the Notice of Motion Application dated 02.09.2024 was whether the law provided for a Spousal Consent prior to Charging by the other spouse of not.
50. The issue of whether the 1 st Respondent was the spouse of the 2 nd Respondent would then only come in to compliment the provisions that provide for a spousal consent in land transactions once the suit is heard through presentation of evidence and a determination made on merit.
51. According to the Kenyan Statutes, there are two cardinal Acts of Parliament that provide for Spousal Consent which are namely the Matrimonial Properties Act, Cap 152 Laws of Kenya and the Land Act, No. 6 of 2012.
52. In the Matrimonial Properties Act, Cap 152 Laws of Kenya, Section 12(5) provides as follows; -
“The matrimonial home shall not be mortgaged or leased without the written and informed consent of both spouses”
53. In the Land Act, No. 6 of 2012, Section 93 (3) provides as follows; -
“A charge of a matrimonial home, shall be valid only if any document or form used in applying for such a charge, or used to grant the charge, is executed by the chargor and any spouse of the chargor living in that matrimonial home, or there is evidence from the document that it has been assented to by all such persons”
54. It is clear from the interpretation of the two above statutes that a spousal consent is mandatory in matrimonial homes between a couple.
55. It is on this strength that the 1 st Respondent did produce a number of pictures of a home which is alleged to be the matrimonial home.
56. However, it is crucial to appreciate when these two provisions under the Matrimonial Properties Act, Cap 152 And the Land Act, No. 6 of 2012 were actually enacted and became operation.
57. The amendment of the Matrimonial Properties Act, Cap 152 Laws of Kenya to include the provisions of Section 12 (5) dealing with spousal consent was asserted to on the 24.12.2013 and became operation on the 16.01.2014.
58. As regards the Land Act, No. 6 of 2012, the entire Act including the provisions of Section 79 (3) therein were asserted to on the 27.04.2012 and became operational from 02.05.2012.
59. In other words, the requirement for spousal consent in transactions in land transactions began at the very earliest on the 02.05.2012 with the commencement of the Land Act, No. 6 of 2012 and was further complimented by the amended of the Matrimonial Properties Act, Cap 152 Laws of Kenya by including the same provision in Section 12 (5) therein.
60. Having this background in mind, this Court is of the considered view and finding that it was not a mandatory legal requirement for a Charge to have a spousal consent prior to 02.05.2012, which is the date the Land Act, No. 6 of 2012 came into force.
61. Clearly therefore, the 1 st Respondent did fail to establish a prima facie case to the existence of a mandatory provision of spousal consent during the period the 2 nd Respondent was creating the Charge dated 02.03.2011 relating to the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and PIONEER/NGERIA BLOCK 1 (EATEC)/9297.
62. As regards the second Charge dated 15.01.2014 relating to the property known as NANDI/KIMINDA/2142 there is no doubt that Section 79 (3) of the Land Act, No. 6 of 2012 was operational at that time.
63. Consequently, it was a mandatory required that if a Chargor who is the registered owner of the property being charged was married, then the spousal consent of the other spouse was legally required.
64. A perusal of the Charge dated 15.01.2014 in relating to the property known as NANDI/KIMINDA/2142 contained a Statutory Declaration by the 2 nd Respondent dated 15.01.2014 to the effect that he was not married and the same was not a matrimonial property.
65. The Statutory Declaration dated 15.01.2014 sworn by the 2 nd Respondent contained in the Charge dated 15.01.2014 relating to the property known as NANDI/KIMINDA/2142 is in contradiction with the Statutory Declaration presented by the 1 st Respondent dated 03.03.2010 which states that the 1 st Respondent and the 2 nd Respondent are married.
66. When the 1 st Respondent and the 2 nd Respondents were served with the Replying Affidavit by the Appellant containing the Charge dated 15.01.2014 and the Statutory Declaration dated 15.01.2014, none of them did challenge the validity of the Statutory Declaration Contained in the Charge dated 15.01.2014 relating to the property known as LR.NO.NANDI/KIMINDA/2142.
67. In essence, the contents of the Statutory Declaration dated 15.01.2014 contained in the Charge dated 15.01.2024 stands unchallenged.
68. Neither the 1 st nor the 2 nd Respondents filed any document to reaffirm the existence of their marriage either by way of a marriage certificate or even an affidavit after the Appellant had disputed the same based on the Statutory Declaration dated 15.01.2014 contained in the Charge dated 15.01.2014 relating to the property known as LR.NO.NANDI/KIMINDA/2142.
69. Be that as it may, once again, the provisions of Section 107 (1) of the Evidence Act, Cap 80 requires the 1 st Respondent to prove that indeed a marriage did exist with the 2 nd Respondent otherwise, the same remains an allegation as it is now and the Court is not persuaded that the 1 st Respondent did establish a prima facie case that there was indeed a lawful marriage with the 2 nd Respondent for her to enjoy the benefits of either Section 79 (3) of the Land Act, Cap 6 of 2012 and/or Section 12 (5) of the Matrimonial Properties Act, Cap 152 Laws of Kenya.
70. The second principle to be considered with whether or not if the prayer for injunction is not issued, the 1 st Respondent stands to suffer irreparable loss and/or harm incapable of being compensated by way of damages.
71. The 1 st Respondent did plead in the Notice of Motion Application dated 02.09.2024 that the properties known as LR.NO. PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142 did constitute her matrimonial home.
72. In support of the above position, the 1 st Respondent did produce a number of pictures in the supporting affidavit with a house in the background.
73. However, the pictures were not accompanied by a Certificate of electronic evidence as required by the Section 106 D of the evidence Act, Cap 80.
74. Be that as it may, it is important to appreciate that the three properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142 are in different locations.
75. The properties known as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and PIONEER/NGERIA BLOCK 1 (EATEC)/9297 are within Uasin Gishu County while the property known as L.RNO. NANDI/KIMINDA/2142 is in the neighbouring Nandi County.
76. The Supporting Affidavit to the Notice of Motion Application dated 02.07.2014 did not identify which of the three properties contains the alleged matrimonial house that was in the pictures produced before the Court.
77. The Appellant on the other hand did plead that the two properties namely PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and PIONEER/NGERIA BLOCK 1 (EATEC)/9297 had since been already sold through public auction and there was nothing for the Court to stop as pleaded by the 1 st Respondent.
78. If there is any loss and/or injury occasioned to the 1 st Respondent, the same can be compensated by way of damages on being proved at the hearing.
79. On the property known as LR.NO. NANDI/KIMINDA/2142, the Appellant did plead and submit that the right to redeem had risen and all the appropriate notices issued to the 2 nd Respondent.
80. In essence, the Court should not fetter its right of sale which is provided for in law and the Charge dated 15.01.2014.
81. The Court having carefully analysed the pleadings and the evidence, it is clear that the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and PIONEER/NGERIA BLOCK 1 (EATEC)/9297 were sold through a public auction undertaken on 16.05.2024.
82. This being the scenario, it therefore is clear that by the time the 1 st Respondent was filing the Plaint and Notice of Motion both dated 02.09.2024, the two properties had already been auctioned and nothing could be stopped by way of a temporary injunction.
83. The only recourse for either the 1 st and 2 nd Respondents after the sale through public auction of the two properties namely LR.NO. PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and PIONEER/NGERIA BLOCK 1 (EATEC)/9297 would be to seek damages under Section 99 (4) of the Land Act, No. 6 of 2012.
84. In conclusion, this Court hereby makes a finding that the 1 st Respondent did not demonstrate any injury and/or harm as at the time of filing the Notice of Motion dated 02.09.2024 that could not be compensated by way of damages.
85. As regards the property known as LR.NO.NANDI/KIMINDA/2142, the Appellant did admit that the same had not be auctioned yet but the process of realising the same as security based on the Charge dated 15.01.2014 was ongoing.
86. Once again, the 1 st Respondent did not present any evidence that this was the property on which her matrimonial home had been erected and/or she is in occupation of.
87. In the absence of this evidence by the 1 st Respondent, the Cou
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1. The Appellant herein being dissatisfied by a Ruling pronounced by Hon. Wattimah, PM (hereinafter referred to as “the Trial Court” ) on the 09.12.2024 in the proceedings known as ELDORET CHIEF MAGISTRATES COURT ENVIRONMENT & LAND COURT CASE NO. E146 OF 2024 (hereinafter referred to as “the Trial Court proceedings” ) did file a Memorandum of Appeal dated 05.08.2025 (hereinafter referred to as “the present Appeal” ) seeking the following Orders; -
i) The Appeal be allowed.
ii) The Ruling of the Sub-Ordinate Court be set-aside and the 1 st Respondent’s Notice of Motion dated 2 nd September 2024 be dismissed with costs.
iii) The Respondents pay the costs of the Appeal.
2. The grounds in support of the above prayers were also outlined in the Memorandum of Appeal dated 05.08.2025 and can be summarised as follows; -
I. THAT the Learned Magistrate did err in law and fact in finding that the 1 st Respondent had demonstrated that her spousal consent was required to create the charge over the suit properties without proof of marriage to the 2 nd Respondent.
II. THAT the Learned Magistrate erred in law and in fact in finding that spousal consent was required for registration of a charge over the properties title number PIONEER/NGERIA BLOCK 1 (EATEC) 9296 and PIONEER/NGERIA BLOCK 1 (EATEC) 9297 when the Charge was registered on the 02.03.2011 when spousal consent was not required under the laws of Kenya.
III. THAT the Learned Magistrate erred in law and in fact in finding that the 1 st Respondent’s spousal consent was required to charge the property NANDI/KIMINDA/2142 when in the same Charge instrument, the 2 nd Respondent deponed an affidavit to the effect that he was not married, that the property did not form part of any matrimonial property and that he did not require the consent of any spouse, family or community member to charge the property.
IV. THAT the Learned Magistrate erred in law and fact in making a finding that the balance of convenience was in favour of granting the injunction without establishing a prima facie case nor making a finding that damages was an inadequate remedy as enacted in GIELLA-VERSUS-CASSMAN BROWN.
V. THAT the Learned Magistrate erred in law and in fact in granting an injunction against the sale of properties title numbers PIONEER/NGERIA BLOCK 1 (EATEC)/9296 & 9297 when the two properties had been sold prior to the filing of the suit and the application.
VI. THAT the Learned Magistrate erred in law and in fact in granting an injunction against the sale of property title number NANDI/KIMINDA/2142 when the Appellant’s right of sale had accrued and due process followed.
VII. THAT the Learned Magistrate erred in law and in fact in failing to find that the 1 st Respondent was forum shopping and that the suit and application were an abuse of the Court process meant to delay the Appellant’s statutory power of sale.
VIII. THAT the Learned Magistrate erred in law and in fact in allowing the Notice of Motion dated 2 nd September 2024.
3. The present Appeal was duly served on the 1 st and 2 nd Respondents.
4. Upon service, the 1 st Respondent express her intention to oppose the present Appeal while the 2 nd Respondent did not attend any of the proceedings before this Court or file any documents thereof.
5. The present Appeal was subsequently admitted on the 19.01.2026 and parties were directed to file their submissions in either support of the same or opposing the same.
6. The Appellant in compliance with the above directions did prepare, file and serve their submissions dated 25.02.2026 while the 1 st Respondent’s submissions were dated 25.02.2026.
7. It is important to for the Court to remind itself that it has been called to exercise its appellate jurisdiction as regards the outcome of the Notice of Motion dated 02.09.2024 which was determined through the Trial Court Ruling pronounced on 09.12.2024.
8. The principles guiding this Court in exercise of its Appellate jurisdiction were discussed in the case of SELLE & ANOTHER-VERSUS- ASSOCIATED MOTOR BOAT CO.LTD & OTHERS (1968) EA 123 where the Court of Appeal made the following observations; -
“A first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal.
A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.”
9. With the above guidance, this Court is therefore required to re-evaluate the Notice of Motion dated 02.09.2024 by going through the facts thereof, identifying the issues for determination and finally independently make its own conclusions of the same.
10. Thereafter, make a determination on whether the Trial Court Ruling did in fact consider the correct facts, correct applicable law and therefore arrived at a correct determination or not.
11. Keeping the above in mind, the Court will now proceed to re-evaluate the Notice of Motion dated 02.09.2024 and make its own determination of the facts and issues therein before making a finding as to whether the Trial Court Ruling was proper or not.
FACTS & PRAYERS PLEADED IN THE APPLICATION DATED 02.09.2024.
12. The 1 st Respondent herein did institute the Trial Court proceeding through a Plaint dated 02.09.2024 against the 2 nd Respondent and the Appellant.
13. Together with the Plaint dated 02.09.2024, the 1 st Respondent did file a Notice of Motion Application dated 02.09.2024 which sought the following Orders against the 2 nd Respondent and the Appellant herein; -
a) THAT the Application be certified urgent and service of the same be dispensed with in the first instance.
b) THAT pending the hearing and determination of this Application, this Honourable Court be pleased to grant temporary injunction orders to stop the sale of Land Parcels PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142.
c) THAT pending the hearing and determination of the main hearing, this Honourable Court be pleased to grant temporary injunction orders to stop the sale of Land Parcels PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142.
d) Such further and/or other orders be made as the Court may deem fir, expedient and just to grant.
e) Costs be in the cause.
14. The facts and/or grounds in support of the above prayers are outlined in the body of the Notice of Motion dated 02.09.2024 as well as the Supporting Affidavit sworn on the same date by the 1 st Respondent and can be summarised as follows; -
i) The 1 st Respondent was the lawful wife of the 2 nd Respondent herein.
ii) The properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296, 9297 and NANDI/KIMINDA/2142 are matrimonial properties as described under Section 6 of the Matrimonial Properties Act.
iii) It was therefore a mandatory legal requirement that the 1 st Respondent should give her spousal consent if any alienation and/or legal process is to be undertaken relating to the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296, 9297 and NANDI/KIMINDA/2142.
iv) However, the 2 nd Respondent without obtaining the Spousal Consent of the 1 st Respondent did offer the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296, 9297 and NANDI/KIMINDA/2142 as collateral and/or security to the Appellant.
v) In essence, the 1 st Respondent did plead that the Charge registered on the properties namely PIONEER/NGERIA BLOCK 1 (EATEC)/9296, 9297 and NANDI/KIMINDA/2142 were illegal, unlawful and interfered with her rights as a spouse to the 2 nd Respondent.
vi) The 1 st Respondent did plead that is if Orders sought were not granted, then she would stand to suffer irreparable harm and injury as the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296, 9297 and NANDI/KIMINDA/2142 were where her matrimonial homes were established and any sale would render her and the children homeless.
vii) In conclusion, the 1 st Respondent herein sought the Trial Court to grant the Orders sought in the Notice of Motion Application dated 02.09.2024.
15. The Notice of Motion Application dated 02.09.2024 was duly served on the Appellant and the 2 nd Respondent herein.
16. The Appellant did oppose the Notice of Motion Application dated 02.09.2024 through a Replying Affidavit dated 26.09.2024.
17. The 2 nd Respondent on the other hand did not file any document either in support of the Notice of Motion Application dated 02.09.2024 or in opposition of the same.
18. The Appellant in the Replying Affidavit dated 26.09.2024 did plead the following facts in opposition of the Notice of Motion Application dated 02.09.2024; -
i) The 2 nd Respondent during the period between 2011 and 2016 did request for financial facilities from the Appellant as demonstrated in the Loan Application Letters attached herein.
ii) According to the Appellant, the first properties to be offered as collateral by the 2 nd Respondents were PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and 9297 which a lawful and valid Charge was registered on them on the 02.03.2011 as demonstrated by the Charge attached therein.
iii) The Appellant did plead and submit that the 2 nd Respondent did service the financial facility in accordance with the terms and conditions therein until the year 2018 when there was a default.
iv) The Appellant did produce various Demand Letters and Statutory Notices issued to the 2 nd Respondent to redeem the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and 9297 but unfortunately, he was not able to do so.
v) Consequently therefore, the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and 9297 were subsequently sold through a public auction on the 16.05.2025 and the appropriate of Sale and Certificate of Sale dated 21.03.2024 and 16.05.2024 issued respectively.
vi) The Appellant did oppose the 1 st Respondent’s allegation that a spousal consent was required before the charging of the two properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and 9297 for the reason that as at 02.03.2011 when the Charge was created and registered, the Applicable law did not require any consent from the spouse of a registered owner.
vii) The Appellant in fact did point out that the legal requirement of spousal Consent did come into effect through the provisions of the Land Registration Act, No. 3 of 2012 and could not apply retrospectively.
viii) In conclusion therefore, the Appellant did plead and submit that the Charge registered over the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and 9297 were lawful and the subsequent sale by public auction procedural and binding on the 2 nd Respondent.
ix) As regards the third property which is NANDI/KIMINDA/2142, the 2 nd Respondent also offer the same as collateral for the financial facilities that had been advanced to him by the Respondent.
x) The Appellant did plead and submit that a Charge dated 16.01.2014 was duly registered against the title of the property known as NANDI/KIMINDA/2142 by the 2 nd Respondent.
xi) During the preparation of the Charge dated 16.01.2014 against the property known as NANDI/KIMINDA/2142, the 2 nd Respondent did make an Oath by way of an Affidavit and/or Statutory Declaration dated 15.01.2014 that he was not lawful married and the said property did not form part of any matrimonial asset.
xii) In essence, the Appellants did deny the contents of the Affidavit or Statutory Declaration produced by the 1 st Respondent to the effect that she was married to the 2 nd Respondent.
xiii) The Appellant did further plead that if any marriage did exist between the 1 st and 2 nd Respondents, then the same must have been registered with the Registrar of Marriages upon the enactment of the Marriage Act, 2014.
xiv) Consequently, the Appellant did dispute the allegation that the property known as NANDI/KIMINDA/2142 was a matrimonial property between the 1 st and 2 nd Respondents herein.
xv) Be that as it may, the Appellant did plead that the 2 nd Respondent was unable to meet his financial obligations in the year 2018.
xvi) Based on this inability, the Appellant did proceed to issue the required Demand Letters and Statutory Notices as attached in this Replying Affidavit to enable the 2 nd Respondent redeem the same.
xvii) Unfortunately, the 2 nd Respondent was unable to redeem the property known as NANDI/KIMINDA/2142 and the Appellant is now in the process of realising its security by way of sale.
xviii) In conclusion thereof, the Appellant was of the view that the prayers sought by the 1 st Respondent were not merited and the Notice of Motion Application dated 02.09.2024 should be dismissed with costs.
19. The Replying Affidavit dated 26.09.2024 was duly served on the 1 st and 2 nd Respondents.
20. On the 02.10.2024, the 1 st and 2 nd Respondents were granted leave to prepare, file and serve any Further Affidavit in response to the Replying Affidavit dated 26.09.2024 within 7 days thereafter but none was filed.
21. Similarly, the Trial Court did direct that the Notice of Motion Application would be canvassed by way of written submissions with both parties being granted leave to file the same within 30 days from 02.10.2024.
22. This Court has perused the Trial Court File and the Record of Appeal and takes note that the neither the 1 st Respondent nor the 2 nd Respondents herein did file any submissions in support of the Notice of Motion Application dated 02.09.2024.
23. The Appellant on the other hand did file its submissions in opposition of the Notice of Motion Application dated 02.09.2024 dated 31.10.2024.
24. The Court having perused all the pleadings placed before the Trial Court and the proceedings thereof, the issues for determination in the Notice of Motion Application dated 02.09.2024 were as follows; -
ISSUE NO.1- IS THE 1 ST RESPONDENT ENTITLED TO AN ORDER OF TEMPORARY INJUNCTION AGAINST THE APPELLANT PROHIBITING THE SALE OF THE PROPERTIES KNOWN AS LR.NO. PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142?
ISSUE NO.2- IS THE 1 ST RESPONDENT ENTITLED TO ORDERS SOUGHT IN THE NOTICE OF MOTION DATED 02.09.2024?
ISSUE NO.3- WHO BEARS THE COSTS OF THE NOTICE OF MOTION APPLICATION DATED 02.09.2024?
ISSUE NO.4- IS THE PRESENT APPEAL MERITED OR NOT?
ISSUE NO.5- WHO BEARS THE COSTS OF THE PRESENT APPEAL.
25. The Court having duly identified the issues for determination in the Notice of Motion Application dated 02.09.2024, the same will now be discussed hereinbelow with a view of making its own independent findings on the same.
ISSUE NO.1- IS THE 1 ST RESPONDENT ENTITLED TO AN ORDER OF TEMPORARY INJUNCTION AGAINST THE APPELLANT PROHIBITING THE SALE OF THE PROPERTIES KNOWN AS LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142?
26. The first issue for determination is whether or not the 1 st Respondent was entitled to an order of temporary injunction against the Appellant stopping any sale of the properties namely LR.NO. PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142?
27. According to the 1 st Respondent, the main reason as to why the Appellant was to be injuncted from selling the properties known as LR.NO. PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142 was the fact that they were matrimonial properties between herself and the 2 nd Respondent.
28. The document that the 1 st Respondent did produce before the Trial Court to confirm her marriage to the 2 nd Respondent was an Affidavit and/or Statutory Declaration sworn sometime in March 2010.
29. The 1 st Respondent therefore did plead that the 2 nd Respondent could not charge the properties namely PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142 without obtaining a spousal consent from her.
30. The 1 st Respondent did further plead that any sale of the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142 as well as the registration of the Charges thereof were illegal and unlawful hence could not give any rights of sale to any of them.
31. The Appellant on the other hand did oppose this position by the 1 st Respondent.
32. The Appellant’s position was that first and foremost, the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142 were charged at different times.
33. The Appellant did plead that the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and PIONEER/NGERIA BLOCK 1 (EATEC)/9297 were charged on the 02.03.2011 pursuant to the provisions of Section 108 of the Registered Land Act, Cap 300.
34. On the other hand, the property known as NANDI/KIMINDA/2142 was charged on 16.01.2014 pursuant to the provisions of Section 108 of the Land Registration Act, No. 3 of 2012.
35. The Appellants did submit that the provisions of the Registered Land Act, Cap 300 (now Repealed) did not have a provision that a spousal consent was mandatory in the event a registered owner so desired to either charge or alienate any property thereof.
36. However, upon the enactment of the Land Registration Act, No.3 of 2012, the provision requiring spousal consent was enacted and can only apply after the date of enactment and not retrospectively.
37. The Court having considered the two opposing views, it is clear that indeed the three properties namely PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142 were charged at different times as is provided in the Charges dated 02.03.2011 and 15.01.2014.
38. The question that follows thereafter is whether or not the 1 st Respondent did satisfy the ingredients of granting a temporary injunction prohibiting the same of any of the three properties namely PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142 to warrant the issuance of the same?
39. It is settled law while Courts consider whether or not to grant Temporary Injunctions, the three guiding principles are the presences of a prima facie case, whether if the injunction is not issued, the party will suffer irreparable loss and/or injury that cannot be compensated by way of damages and lastly in whose favour the balance of convenience tilts.
40. Starting with the principle of establishing a prima facie case, it is clear in the mind of this Court that this obligation was on the 1 st Respondent’s who had instituted the proceeding before the Trial Court.
41. Section 107 (1) of the Evidence Act, Cap 80 specifically provides that whoever desires a Court to give judgement as to any legal right or liability dependent on the existence of the facts which he and/or she asserts must prove that those facts exist.
42. According to the Plaint dated 02.09.2024 and the Notice of Motion Application dated 02.09.2024, the 1 st Respondent who was the Plaintiff herein did plead that she was the legal wife of the 2 nd Respondent herein.
43. To demonstrate the existence of the marriage been the 1 st Respondent and the 2 nd Respondent, a Joint Affidavit dated 03.03.2010 sworn by both the 1 st and 2 nd Respondents was annexed therein.
44. It was therefore the 1 st Respondent’s legal position that any transaction done by the 2 nd Respondent after 03.03.2010 required could only be with her Consent.
45. Consequently, the 1 st Respondent did plead that the Charges dated 02.03.2011 and 15.01.2014 issued in favour of the Appellant were unlawful, illegal, null and void.
46. As earlier stated, the Appellant’s position was simple and clear.
47. Regarding the Charge dated 02.03.2011 relating to the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and PIONEER/NGERIA BLOCK 1 (EATEC)/9297, the Spousal Consent was not provided for in law and not a mandatory requirement.
48. Regarding the Charge dated 15.01.2014, the 2 nd Respondent did make a Statutory Declaration dated 15.01.2014 to the effect that he was not married and therefore the provision of spousal Consent although in existence could not apply.
49. It is the Court’s considered view and finding that the prima facie issue to be considered in the Notice of Motion Application dated 02.09.2024 was whether the law provided for a Spousal Consent prior to Charging by the other spouse of not.
50. The issue of whether the 1 st Respondent was the spouse of the 2 nd Respondent would then only come in to compliment the provisions that provide for a spousal consent in land transactions once the suit is heard through presentation of evidence and a determination made on merit.
51. According to the Kenyan Statutes, there are two cardinal Acts of Parliament that provide for Spousal Consent which are namely the Matrimonial Properties Act, Cap 152 Laws of Kenya and the Land Act, No. 6 of 2012.
52. In the Matrimonial Properties Act, Cap 152 Laws of Kenya, Section 12(5) provides as follows; -
“The matrimonial home shall not be mortgaged or leased without the written and informed consent of both spouses”
53. In the Land Act, No. 6 of 2012, Section 93 (3) provides as follows; -
“A charge of a matrimonial home, shall be valid only if any document or form used in applying for such a charge, or used to grant the charge, is executed by the chargor and any spouse of the chargor living in that matrimonial home, or there is evidence from the document that it has been assented to by all such persons”
54. It is clear from the interpretation of the two above statutes that a spousal consent is mandatory in matrimonial homes between a couple.
55. It is on this strength that the 1 st Respondent did produce a number of pictures of a home which is alleged to be the matrimonial home.
56. However, it is crucial to appreciate when these two provisions under the Matrimonial Properties Act, Cap 152 And the Land Act, No. 6 of 2012 were actually enacted and became operation.
57. The amendment of the Matrimonial Properties Act, Cap 152 Laws of Kenya to include the provisions of Section 12 (5) dealing with spousal consent was asserted to on the 24.12.2013 and became operation on the 16.01.2014.
58. As regards the Land Act, No. 6 of 2012, the entire Act including the provisions of Section 79 (3) therein were asserted to on the 27.04.2012 and became operational from 02.05.2012.
59. In other words, the requirement for spousal consent in transactions in land transactions began at the very earliest on the 02.05.2012 with the commencement of the Land Act, No. 6 of 2012 and was further complimented by the amended of the Matrimonial Properties Act, Cap 152 Laws of Kenya by including the same provision in Section 12 (5) therein.
60. Having this background in mind, this Court is of the considered view and finding that it was not a mandatory legal requirement for a Charge to have a spousal consent prior to 02.05.2012, which is the date the Land Act, No. 6 of 2012 came into force.
61. Clearly therefore, the 1 st Respondent did fail to establish a prima facie case to the existence of a mandatory provision of spousal consent during the period the 2 nd Respondent was creating the Charge dated 02.03.2011 relating to the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and PIONEER/NGERIA BLOCK 1 (EATEC)/9297.
62. As regards the second Charge dated 15.01.2014 relating to the property known as NANDI/KIMINDA/2142 there is no doubt that Section 79 (3) of the Land Act, No. 6 of 2012 was operational at that time.
63. Consequently, it was a mandatory required that if a Chargor who is the registered owner of the property being charged was married, then the spousal consent of the other spouse was legally required.
64. A perusal of the Charge dated 15.01.2014 in relating to the property known as NANDI/KIMINDA/2142 contained a Statutory Declaration by the 2 nd Respondent dated 15.01.2014 to the effect that he was not married and the same was not a matrimonial property.
65. The Statutory Declaration dated 15.01.2014 sworn by the 2 nd Respondent contained in the Charge dated 15.01.2014 relating to the property known as NANDI/KIMINDA/2142 is in contradiction with the Statutory Declaration presented by the 1 st Respondent dated 03.03.2010 which states that the 1 st Respondent and the 2 nd Respondent are married.
66. When the 1 st Respondent and the 2 nd Respondents were served with the Replying Affidavit by the Appellant containing the Charge dated 15.01.2014 and the Statutory Declaration dated 15.01.2014, none of them did challenge the validity of the Statutory Declaration Contained in the Charge dated 15.01.2014 relating to the property known as LR.NO.NANDI/KIMINDA/2142.
67. In essence, the contents of the Statutory Declaration dated 15.01.2014 contained in the Charge dated 15.01.2024 stands unchallenged.
68. Neither the 1 st nor the 2 nd Respondents filed any document to reaffirm the existence of their marriage either by way of a marriage certificate or even an affidavit after the Appellant had disputed the same based on the Statutory Declaration dated 15.01.2014 contained in the Charge dated 15.01.2014 relating to the property known as LR.NO.NANDI/KIMINDA/2142.
69. Be that as it may, once again, the provisions of Section 107 (1) of the Evidence Act, Cap 80 requires the 1 st Respondent to prove that indeed a marriage did exist with the 2 nd Respondent otherwise, the same remains an allegation as it is now and the Court is not persuaded that the 1 st Respondent did establish a prima facie case that there was indeed a lawful marriage with the 2 nd Respondent for her to enjoy the benefits of either Section 79 (3) of the Land Act, Cap 6 of 2012 and/or Section 12 (5) of the Matrimonial Properties Act, Cap 152 Laws of Kenya.
70. The second principle to be considered with whether or not if the prayer for injunction is not issued, the 1 st Respondent stands to suffer irreparable loss and/or harm incapable of being compensated by way of damages.
71. The 1 st Respondent did plead in the Notice of Motion Application dated 02.09.2024 that the properties known as LR.NO. PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142 did constitute her matrimonial home.
72. In support of the above position, the 1 st Respondent did produce a number of pictures in the supporting affidavit with a house in the background.
73. However, the pictures were not accompanied by a Certificate of electronic evidence as required by the Section 106 D of the evidence Act, Cap 80.
74. Be that as it may, it is important to appreciate that the three properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296, PIONEER/NGERIA BLOCK 1 (EATEC)/9297 and NANDI/KIMINDA/2142 are in different locations.
75. The properties known as LR.NO.PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and PIONEER/NGERIA BLOCK 1 (EATEC)/9297 are within Uasin Gishu County while the property known as L.RNO. NANDI/KIMINDA/2142 is in the neighbouring Nandi County.
76. The Supporting Affidavit to the Notice of Motion Application dated 02.07.2014 did not identify which of the three properties contains the alleged matrimonial house that was in the pictures produced before the Court.
77. The Appellant on the other hand did plead that the two properties namely PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and PIONEER/NGERIA BLOCK 1 (EATEC)/9297 had since been already sold through public auction and there was nothing for the Court to stop as pleaded by the 1 st Respondent.
78. If there is any loss and/or injury occasioned to the 1 st Respondent, the same can be compensated by way of damages on being proved at the hearing.
79. On the property known as LR.NO. NANDI/KIMINDA/2142, the Appellant did plead and submit that the right to redeem had risen and all the appropriate notices issued to the 2 nd Respondent.
80. In essence, the Court should not fetter its right of sale which is provided for in law and the Charge dated 15.01.2014.
81. The Court having carefully analysed the pleadings and the evidence, it is clear that the properties known as PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and PIONEER/NGERIA BLOCK 1 (EATEC)/9297 were sold through a public auction undertaken on 16.05.2024.
82. This being the scenario, it therefore is clear that by the time the 1 st Respondent was filing the Plaint and Notice of Motion both dated 02.09.2024, the two properties had already been auctioned and nothing could be stopped by way of a temporary injunction.
83. The only recourse for either the 1 st and 2 nd Respondents after the sale through public auction of the two properties namely LR.NO. PIONEER/NGERIA BLOCK 1 (EATEC)/9296 and PIONEER/NGERIA BLOCK 1 (EATEC)/9297 would be to seek damages under Section 99 (4) of the Land Act, No. 6 of 2012.
84. In conclusion, this Court hereby makes a finding that the 1 st Respondent did not demonstrate any injury and/or harm as at the time of filing the Notice of Motion dated 02.09.2024 that could not be compensated by way of damages.
85. As regards the property known as LR.NO.NANDI/KIMINDA/2142, the Appellant did admit that the same had not be auctioned yet but the process of realising the same as security based on the Charge dated 15.01.2014 was ongoing.
86. Once again, the 1 st Respondent did not present any evidence that this was the property on which her matrimonial home had been erected and/or she is in occupation of.
87. In the absence of this evidence by the 1 st Respondent, the Cou
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