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ELCPartially AllowedELC Case at Kapenguria (Notice of Motion dated 11th December, 2018)· [2019] KEELC 3951 (KLR)

STK v CA [2019] KEELC 3951 (KLR)

Environment and Land Court
28 March 2019
MNMwangi Njoroge
1,724 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court protected a wife's claim to land in her husband's name, stopping its sale until the full case is heard.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Kitale by Mwangi Njoroge J on a Notice of Motion dated 11th December 2018 in which the plaintiff, a wife employed by the Teachers Service Commission, sought confirmation of a temporary injunction restraining the defendant, her husband, from selling land comprised in title West Pokot/Keringet […] registered in his sole name. She asserted the property was matrimonial property jointly acquired and developed during the marriage, that the Land Control Board upheld her objection to a proposed sale in October 2018, and that she had lodged a caution against the title. The respondent denied her contribution, asserting he purchased the land in 1984 before the marriage, developed it through a Sacco loan, that she deserted him in 2011, that the property had already been sold to fund a new matrimonial home at Maili Saba, and that an injunction was futile since the event sought to be injuncted had occurred. Applying the Giella v Cassman Brown principles, the court found a prima facie case with probability of success given the plaintiff's demonstrated earnings and disputed issues of contribution suitable for trial, but held she would not suffer loss uncompensable by damages given her occupation of the premises and the respondent's newly built home. On a balance of convenience, however, the court found it necessary to preserve the status of the suit property pending trial and confirmed the temporary injunction, with costs of the application in the cause.

Key legal issues

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01

Whether the suit property is matrimonial property

Holding

At the interlocutory stage the plaintiff established a prima facie case that the property is matrimonial property, with proof of contribution left to the full hearing

Reasoning

The parties are married with no evidence of divorce; they lived on the suit property and begot children there. The plaintiff showed she earned a salary from 1982 and disputed desertion on grounds of illness. Whether she contributed to purchase and development are matters for trial evidence, but she demonstrated a prima facie case with probability of success.

p. 2
02

Whether an injunction should issue despite a completed sale

Holding

The temporary injunction was confirmed on the balance of convenience to preserve the status of the suit property, notwithstanding the respondent's claim that the property had been sold

Reasoning

While the plaintiff would not suffer irreparable loss not compensable in damages given her occupation and the respondent's new home, the court found it necessary on a balance of convenience to preserve the status of the suit property pending trial, confirming the earlier temporary injunction.

p. 2

Legal principles established

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  • The conditions for a temporary injunction are demonstration of a prima facie case with likelihood of substantial loss; if in doubt, the court decides on a balance of convenience (Giella v Cassman Brown)
  • Matrimonial property is defined in the Matrimonial Property Act as the matrimonial home(s), household goods and effects, and any other movable or immovable property jointly owned and acquired during the subsistence of the marriage

Court orders

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  1. 1.The temporary injunction issued earlier in the suit is confirmed pending the hearing and determination of the suit
  2. 2.Costs of the application shall be in the cause

Authorities

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Legislation

  • Matrimonial Property Actdefinition of matrimonial property
  • Land Actdefinition of matrimonial property (as relevant)

Cases cited (5)

  • NCK -vs- GVK
    HC Milimani (Family Division) Civil Case No. 66/2012 eKLR
  • BWK -vs- EMG
    HC Milimani (Family Division) Civil Case No. 17/2015 eKLR
  • Pius Kipchirchir Kogo -vs- Frank Kimeli Tena
    Eldoret ELC No. 221 of 2017
  • Giella -vs- Cassman Brown
    1973 EA 358
  • Kalya Sio Farmers Co-operative Society -vs- Paul Kirui & Kenya Forest Services
Jurisdiction invoked
Inherent jurisdiction of the court to grant temporary injunctions pending hearing of the suit (civil procedure and land law jurisdiction; no specific article cited)

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, "STK v CA [2019] KEELC 3951 (KLR)", Case Analysis (2019). ELC Case at Kapenguria (Notice of Motion dated 11th December, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3951/eng@2019-03-28

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