Z K K alias A K K J & another v A S M & 3 others [2018] KEELC 4831 (KLR)
The bottom line
#A Kenyan court stopped the sale and eviction of a family home transferred without the spouse's consent, protecting a 30-year matrimonial home.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case with a probability of success
The court found the plaintiff had established a prima facie case, as there was no evidence of the plaintiff's consent to the transfer of the matrimonial home, and the transfer would be voidable under section 93 of the Land Registration Act and section 12(1) of the Matrimonial Property Act
The court noted it was not disputed that the deceased acquired the suit property during the marriage, that the parties lived on it as their matrimonial home, and that it was transferred to the vendors during the marriage while they occupied it. Section 93(3) and (4) of the Land Registration Act required the spouse's consent for such a disposition, and there was no evidence of consent. If the vendors had no valid title, they could convey none to the 4th defendant.
Whether the plaintiff would suffer irreparable harm not compensable in damages
The court held the plaintiff would suffer irreparable damage if the injunction was not granted, given the attempt to forcefully evict him and the risk the property would be put beyond his reach
The court relied on the demonstrated attempt by the 4th defendant, with auctioneers and police, to forcefully evict the plaintiff, and followed Notco (Mombasa) Ltd v Halima Bakari Ramadhani, holding that a long-occupied family home has a sentimental value which cannot be measured purely in economic terms or compensated by an award of damages.
Whether the plaintiff concealed material facts and misled the court
The court was not satisfied that the plaintiff had full knowledge of the facts he was accused of concealing or that the court was misled
The 4th defendant urged that the plaintiff had concealed material facts and misled the court into issuing interim orders on 26th May 2016. The court found the plaintiff lacked full knowledge of the alleged concealed facts and was not convinced the court had been misled, rejecting this ground of opposition.
Legal principles established
#- An applicant for an interlocutory injunction must establish a prima facie case with a probability of success, irreparable injury not adequately compensable in damages, and, if in doubt, the court determines the matter on a balance of convenience
- Under section 93(3) and (4) of the Land Registration Act, 2012, a spouse undertaking a disposition of land held in his or her individual name must have the other spouse's consent, failing which the disposition is voidable at the option of the non-consenting spouse
- A purchaser who buys land while the plaintiff is in possession must follow due process to obtain possession and cannot forcefully evict the occupant
- The standard of proof of a prima facie case is on a balance of probabilities; the applicant need not establish title, only show a fair and bona fide question to raise
Court orders
#- 1.An injunction issued for a period of fifteen (15) months or until the hearing and determination of the suit, whichever comes earlier, restraining the defendants, their agents, servants and/or anyone acting through their authority from disposing of, transferring, alienating, assigning, charging or evicting the plaintiff from L.R No. 1870/V/[particulars withheld], Mangu Gardens off Church Road, Westlands, Nairobi
- 2.The costs of the application to be in the cause
- Jurisdiction invoked
- Original civil jurisdiction of the court under the Land Registration Act, 2012 and the Matrimonial Property Act, No. 49 of 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Z K K alias A K K J & another v A S M & 3 others [2018] KEELC 4831 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4831/eng@2018-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.