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ELCPartially AllowedNot stated in judgment· [2015] KEELC 729 (KLR)

Willis Odede Nyende v Mary Wamaitha Nderitu [2015] KEELC 729 (KLR)

Environment and Land Court
20 February 2015
MGMARY M. GITUMBI
1,812 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court blocked the sale of two apartments, confirming that a spouse who contributes money to property held in the other's name may claim co-ownership.

What this practically means

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Executive summary

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This is a ruling on the Plaintiff's Notice of Motion dated 31st July 2014 seeking interim injunction and prohibitory orders restraining the Defendant from selling, alienating or dealing with two properties, Dagoretti/Riruta/4608 Apartment No. 1A and Dagoretti/Riruta/4605 Apartment No. D9, pending trial. The Plaintiff, an advocate, alleged he cohabited with the Defendant since 2007, that they jointly purchased the properties (he contributing Kshs. 12 million to purchase and Kshs. 1 million to renovations; she Kshs. 6 million), and that they were registered in her sole name to hold in trust for their joint interest. The Defendant denied intending to sell Apartment 1A, where she lives with the children, disclaimed interest in Apartment D9, and asserted she funded Apartment 1A from a loan and pension dues, the Plaintiff having acted only as her advocate. Applying Giella v Cassman Brown, the court found a prima facie case: both properties were registered in the Defendant's sole name, but section 93(2) of the Land Registration Act, 2012 deems a contributing spouse a co-owner, and section 14 of the Matrimonial Property Act, 2013 raises a rebuttable presumption of trust where matrimonial property is acquired in one spouse's name during marriage - a presumption the Defendant had not rebutted. Damages were held inadequate as land is unique. The balance of convenience favoured maintaining the status quo. The court granted the interlocutory injunction restraining disposal of the suit properties, while permitting the Defendant to continue residing in Apartment 1A and letting out Apartment D9, with costs in the cause.

Key legal issues

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01

Prima facie case for interlocutory injunction based on beneficial/trust interest in land registered in another's name

Holding

Plaintiff established a prima facie case under section 93(2) of the Land Registration Act and section 14 of the Matrimonial Property Act

Reasoning

The Plaintiff asserted direct financial contributions of Kshs. 13 million towards purchase and renovation of properties registered in the Defendant's sole name. Section 93(2) deems a contributing spouse a co-owner, and section 14 raises a rebuttable presumption of trust. The Defendant had not rebutted that presumption on the material before the court, so a genuine and arguable case with high chances of success was shown.

p. 3
02

Adequacy of damages

Holding

Damages would not adequately compensate because land is unique

Reasoning

Although the value of the suit properties could be ascertained, the court held that land is unique and no one parcel can be equated with another; damages are not always a suitable remedy where a clear legal right is established, following JM Gichanga v Co-operative Bank.

p. 3
03

Balance of convenience

Holding

Status quo should be maintained: Defendant continues residing in and letting the properties, but may not dispose of them

Reasoning

The Defendant lives in Apartment No. 1A with her two children and Apartment No. D9 is leased to a tenant. Preserving that arrangement while prohibiting disposal protects the Plaintiff's asserted interest without disturbing the Defendant's occupation.

p. 3

Legal principles established

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  • Where land is registered in the name of one spouse but the other spouse contributes to its purchase, upkeep or improvement, that spouse acquires an interest recognized as if registered
  • Where matrimonial property is acquired during marriage in the name of one spouse, there is a rebuttable presumption of a resulting trust for the other spouse

Court orders

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  1. 1.Interlocutory injunction restraining the Defendant from disposing of the suit properties pending the hearing and determination of the suit
  2. 2.The Defendant permitted to continue residing in Apartment No. 1A and letting out Apartment No. D9
  3. 3.Costs in the cause

Authorities

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Legislation

  • Land Registration Actsection 93(2)
  • Matrimonial Property Actsection 2
  • Matrimonial Property Actsection 6(1)
  • Matrimonial Property Actsection 7
  • Matrimonial Property Actsection 14

Cases cited (3)

  • GIELLA versus CASSMAN BROWN
    (1973) EA 358
  • MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    (2003) KLR 125
  • JM GICHANGA versus CO-OPERATIVE BANK OF KENYA LTD
    (2005) eKLR
Jurisdiction invoked
Original civil jurisdiction; interlocutory application under the Land Registration Act, 2012 and the Matrimonial Property Act, 2013

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Willis Odede Nyende v Mary Wamaitha Nderitu [2015] KEELC 729 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/729/eng@2015-02-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.