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ELCDismissednot stated in extract (Application dated 6th February, 2018)· [2018] KEELC 2115 (KLR)

D K v J A W & another [2018] KEELC 2115 (KLR)

Environment and Land Court

20 July 2018

OAO.A. Angote

600 words in judgment

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The bottom line

A Kenyan court dismissed a wife's injunction over the matrimonial home because the land was registered to a deceased grandfather, not the people she sued.

What this practically means

Executive summary

This was a ruling on an interlocutory application dated 6th February, 2018 in which the Applicant, the 1st Respondent's wife under a marriage contracted in 1998 under the African Christian Marriage and Divorce Act, sought a temporary injunction restraining the Respondents from constructing, developing or otherwise interfering with parcel Kangundo/Mbilini/[particulars withheld], described as the matrimonial home, pending hearing of the main suit. The Applicant asserted that the suit land formed part of ancestral land registered in the 1st Respondent's name but held in trust for her in equal share, and that after deserting the matrimonial home in December 2017 and purportedly marrying a second wife, the 1st Respondent had begun constructing another house on the suit land. The 1st Respondent deponed that the suit land is registered in the name of his late grandfather, D W N (deceased), that he purchased a portion from his uncle and was gifted a portion by his late brother, and that he was building on the gifted portion. The court found that the suit land is in fact registered in the name of the deceased grandfather and not in the Respondents' names, rendering them non-suited. It further found no evidence of interference with the Applicant's possession, noting that only the legal administrator of the deceased's estate could seek such an injunction. The court held that no prima facie case with chances of success had been established and dismissed the application with costs.

Key legal issues

Whether the Applicant established a prima facie case for a temporary injunction over the matrimonial home

Holding

The application was dismissed because the Respondents are non-suited - the suit land is registered in the name of the 1st Respondent's late grandfather, not in their names, and no interference with the Applicant's possession was shown

Reasoning

The court found on the evidence that the suit parcel is registered in the name of D W N (deceased), the 1st Respondent's grandfather. This contradicted the Applicant's pleading that the land was registered in the 1st Respondent's name. As the Respondents are non-suited, and no interference with possession was demonstrated, no prima facie case was made out and an injunction could not issue against them.

p. 2

Legal principles established

An injunction cannot issue against a party in whose name the suit land is not registered; only the legal administrator of the estate of the registered proprietor may seek such an order

Court orders

1.Dismissal of the Application dated 6th February, 2018 with costs

Authorities

Legislation

African Christian Marriage and Divorce Actnull

Jurisdiction invoked: Inherent jurisdiction of the court to grant interlocutory injunctions (subordinate legislation/rules of court referenced; no express constitutional provision cited)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "D K v J A W & another [2018] KEELC 2115 (KLR)", Case Analysis (2018). not stated in extract (Application dated 6th February, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2115/eng@2018-07-20

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