Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially Allowed· [2018] KEELC 4831 (KLR)

Z K K alias A K K J & another v A S M & 3 others [2018] KEELC 4831 (KLR)

Environment and Land Court
19 January 2018
2,617 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

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

#
The plaintiff, the surviving spouse and legal representative of the late N S S alias N Z K J, sought a temporary injunction restraining the defendants from disposing of, transferring, alienating, charging or dealing with L.R No. 1870/V/[particulars withheld], Mangu Gardens, Westlands, Nairobi, and from evicting him pending the hearing of the suit. He claimed he bought and occupied the property as the matrimonial home for over 30 years; that the deceased transferred it to her daughters (the vendors) in April 2015 without his consent while of unsound mind; that the 1st and 2nd defendants intermeddled with the estate; and that the 4th defendant, a subsequent purchaser, forcefully attempted to evict him with auctioneers and police. The 4th defendant opposed, contending he purchased the property for Kshs. 18,000,000 after due diligence from vendors holding a power of attorney, and held an indefeasible title. Applying the Giella v Cassman Brown principles as elaborated in Nguruman and Mrao, the court held the plaintiff had established a prima facie case with a probability of success: the property was acquired during the marriage, occupied as the matrimonial home, and transferred without any evidence of the plaintiff's consent, contrary to section 93(3) and (4) of the Land Registration Act, 2012 and section 12(1) of the Matrimonial Property Act. The court also held the plaintiff would suffer irreparable harm, the family home having a sentimental value beyond economic measure, and found no merit in the allegation of concealment. The application was allowed; an injunction issued for fifteen months or until determination of the suit, with costs in the cause.

Key legal issues

#
01

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

Holding

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

Reasoning

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.

p. 4
02

Whether the plaintiff would suffer irreparable harm not compensable in damages

Holding

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

Reasoning

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.

p. 4
03

Whether the plaintiff concealed material facts and misled the court

Holding

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

Reasoning

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.

p. 4

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. 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. 2.The costs of the application to be in the cause

Authorities

#

Legislation

  • Matrimonial Property Actsection 6
  • Matrimonial Property Actsection 12(1)
  • Matrimonial Property Actsection 13(a)
  • Land Registration Act, 2012section 93(3) and (4)

Cases cited (4)

  • Giella vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 Others
    (2014) eKLR
  • Mrao Limited vs. First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Notco (Mombasa) Ltd. and Another vs. Mrs. Halima Bakari Ramadhani
    Civil Appeal No. 158 of 1992
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.