MNM v PMM & another [2019] KEELC 2237 (KLR)
The bottom line
#A Kenyan court froze the sale of a matrimonial plot because the buyer never confirmed the wife had consented — protecting her home until trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case with a probability of success justifying a temporary injunction over the suit property
Yes. The court found the property was matrimonial property jointly owned, that no spousal consent was obtained before sale, and that the 2nd defendant was aware of its matrimonial character; damages were inadequate and the balance of convenience favoured the plaintiff.
Applying the Giella vs Cassman Brown principles and Mrao Ltd's definition of a prima facie case, the court held that the plaintiff had demonstrated joint/matrimonial ownership of the plot. The sale to the 2nd defendant occurred without spousal consent, which the purchaser was obliged under section 93(3) of the Land Registration Act to inquire about. Damages would not adequately compensate a joint owner of her matrimonial home, and the balance of convenience favoured the plaintiff, warranting an interlocutory injunction.
Costs of the application
Costs were ordered to abide the outcome of the main suit rather than being awarded to either party.
Having granted the injunction, the court did not award costs of the interlocutory application to the successful applicant. Instead it deferred the question of costs, directing that they follow the result of the main suit, thereby leaving the costs issue open until final determination.
Legal principles established
#- An applicant for an injunction must establish a prima facie case with a probability of success, that damages would not be an adequate remedy, and that the balance of convenience tilts in their favour (Giella vs Cassman Brown principles).
- An applicant for injunction must make full disclosure of relevant facts and show a legal or equitable right requiring protection.
- A purchaser of matrimonial property is obliged to inquire whether spousal consent has been granted before purchase.
Court orders
#- 1.An order of injunction restraining the defendants/respondents by themselves, their servants and or their agents from selling, collecting rent, dealing with in any other way interfering with the property known as Plot No. [...] in Soweto Ex-Kabarage settlement scheme pending the hearing and determination of the suit
- 2.The OCS Soweto Police Station to ensure compliance of the order
- 3.Costs to abide the outcome of the main suit
- Jurisdiction invoked
- Sections 1A, 1B, 3A of the Civil Procedure Act and Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MNM v PMM & another [2019] KEELC 2237 (KLR)", Case Analysis (2019). Notice of motion dated 9th October 2018 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2237/eng@2019-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.