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ELCDismissedELC Case (Kitale), Application dated 22/3/2018 (suit number not stated in judgment)· [2018] KEELC 64 (KLR)

Henry Simon Nyangau v Edna Cherono Bore & 3 others [2018] KEELC 64 (KLR)

Environment and Land Court
4 July 2018
MNMwangi Njoroge
2,048 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kitale court refused to stop a bank auction where the applicant could not prove his claimed spousal interest in the property.

What this practically means

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Executive summary

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By an application dated 22 March 2018, the plaintiff sought an interlocutory injunction restraining the 2nd and 4th defendants from selling, alienating or interfering with land known as LR NO 2116/1050 Kibomet, Kitale, registered in the name of the 1st defendant, whom he alleged was his wife by a 2009 marriage. He contended that the property was family/matrimonial property, that his spousal consent to the 1st defendant's guarantee of the 3rd defendant's borrowings (a Ksh 50,000,000 loan and Ksh 10,000,000 overdraft) was never obtained, and that the guarantee and any resulting charge were null and void under the Matrimonial Property Act and for want of Land Control Board consent. The 2nd defendant opposed, disputing the marriage (noting the title named the 1st defendant as wife of Amos Kipkirui Arap Bore), asserting the property was acquired in 1990 and was commercial (hosting a school), and pointing to prior dismissed proceedings by the 1st defendant concerning the same security. Mwangi Njoroge J framed two issues: prima facie case and irreparable loss. The court held that the plaintiff's unexplained delay, the trilogy of litigation over the same security, and the absence of evidence of open collaboration between him and the 1st defendant cast serious doubt on the alleged matrimonial relationship and on any interest in the property, damaging any prima facie case; the possibility that he was the 1st defendant's proxy was noted, she having filed nothing despite service. Irreparable loss was also not demonstrated. The application was dismissed with costs on 4 July 2018.

Key legal issues

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01

Whether the plaintiff established a prima facie case with probability of success

Holding

No. The plaintiff's interest in the suit property and the alleged matrimonial home were rendered doubtful by his unexplained delay and the absence of any evidence of his involvement until the recovery process was underway.

Reasoning

The court noted this was the third case relating to realization of the security, with the 1st defendant having acted alone in earlier dismissed proceedings. The court found it difficult to believe the plaintiff was unaware of the litigation and the sale advertisement if he had developed and run a school on the land. The doubt cast on the matrimonial relationship seriously damaged the probability of the plaintiff establishing a prima facie case.

p. 2
02

Whether the plaintiff would suffer irreparable loss not compensable by damages

Holding

No. Having failed to demonstrate an interest in the property warranting an injunction, there was likewise no evidence of irreparable damage.

Reasoning

The court linked the second limb of the Giella-type test to the first, holding that because the plaintiff had not satisfied the court of any cognizable interest in the suit property, no irreparable damage could arise from refusing the interlocutory orders. The application was consequently dismissed with costs.

p. 3

Legal principles established

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  • A party seeking an interlocutory injunction must demonstrate a prima facie case with probability of success and, failing that, irreparable damage not compensable by damages
  • Delay and unexplained conduct in relation to a claimed matrimonial relationship cast doubt on the claimant's interest and damage the probability of establishing a prima facie case

Court orders

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  1. 1.The application dated 22/3/2018 is dismissed with costs to the 2nd defendant/respondent

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure Rules, 2010Order 3 Rule 1
  • Matrimonial Property ActNot specified (referred to generally)
Jurisdiction invoked
Not stated in the judgment (Environment and Land Court, Kitale, over land known as LR NO 2116/1050 Kibomet, Kitale)

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, "Henry Simon Nyangau v Edna Cherono Bore & 3 others [2018] KEELC 64 (KLR)", Case Analysis (2018). ELC Case (Kitale), Application dated 22/3/2018 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/64/eng@2018-07-04

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