Catherine Kigasia Kivai v Ernest Ogesi Kivai & 1 other

minutes of a meeting purportedly held on 23 rd August 2014 between the 2nd and 4th defendants and other individuals who are not party to these proceedings. 5. The response by the 5 th and 6th defendants is through an affidavit that was sworn by Sarah Too, an employee of the 5 th defendant. The position taken is that the bank extended credit to the 2 nd defendant on basis of collateral that was offered by the 1 st defendant. There is a spousal consent obtained from the 2 nd defendant, and evidence that the property was registered in the sole name of the 1 st defendant. They assert that they did due diligence, and that the property was not matrimonial property to the extent that the premises on it were commercial and did not comprise of residential premises, and, in any event, there was no evidence that the plaintiff contributed to its acquisition. Attached to that affidavit are documents relating to that impugned transaction. 6. Directions on the disposal of the application were taken on 10 th October 2017 by consent, to the effect that the application be disposed of by way of written submissions. There has been compliance for the plaintiff and the 3 rd, 4th, 5th and 6th defendants filed written submissions. I have perused through the same and noted the arguments made therein. 7. The only issue for me to determine is whether or not an injunction should issue to restrain sale of the suit property pending the hearing of the main suit. The argument by the plaintiff in the main suit is that the suit property was matrimonial to the extent that the plaintiff was married to the proprietor of that property and that she had contributed to its acquisition. The plaintiff has attached to her papers a marriage certificate, which is prima facie evidence that she was married to the 1st defendant. 8. The 1st defendant, the supposed husband of the plaintiff, did not enter appearance nor file defence, or even a response to the Motion. He has, therefore, not controverted the allegation by the plaintiff that she was his spouse, and that the suit property was matrimonial property. The only defence on record is by the 3 rd and 4th defendants. They describe the plaintiff as a stranger to them, and assert that the only wife of the 1st defendant that they knew was the 2nd defendant. However, it should not be for the 3 rd and 4th defendants to speak for the 1st defendant. Whether the plaintiff was a statutory wife of the 1 st defendant was a matter that could only be addressed authoritatively by the 1 st defendant. The fact that he chose not to respond to the matter should be telling. The 5 th and 6th defendants have also not filed a defence. Their response to the Motion appears to suggest that the only spouse of the 1 st defendant that they were aware of was the 2 nd defendant, who signed the relevant consent papers. However, the fact that they were unaware of the existence of the plaintiff as the statutory wife of the 1 st defendant could not take away from the validity of the statutory marriage. 9. The prima facie evidence that the plaintiff was the statutory wife of the 1 st defendant would mean that she would be entitled to certain rights over the property of the 1 st defendant in terms of the Land Registration Act 2012, No. 3 of 2012, the Land Act, No. 6 of 2012, and the Matrimonial Property Act, No. 49 of 2013, subject, of course, to such limitations as are set out in the said statutes. The enquiry as to whether the property in question was matrimonial or that the plaintiff had contributed to its acquisition are matters beyond the scope of determination at this stage, since they are core issues for determination at the hearing of the main suit. 10. The 5th and 6th defendants argue that the plaintiff had not established that the property was matrimonial by way of evidence of her contribution. They also argue that the property was commercial and that there was no matrimonial home on it. I would like to reiterate what I have stated above in paragraph 9. Whether the property was matrimonial or had been acquired by the joint efforts of the plaintiff and the 1 st defendant is a matter for determination at the main hearing, and not at this interlocutory stage. I cannot make determinations in that regard without embarrassing the Judge who will ultimately have to hear and dispose of the main suit. I am mindful of the fact that the 5 th and 6th defendants have not filed any defence to the plaintiff’s plaint, and, therefore, the allegations made in the plaint are not controverted by them. Secondly, they have averred in their response to the Motion that a spousal consent was obtained from the 2 nd defendant to have the suit property offered as collateral. That, in view, appears to contradict their argument that the property was not matrimonial, for if it was not why did they find it necessary to obtain the spousal consent of the 1 st defendant’s wife that they knew. 11. Overall, I am persuaded that there is need to preserve the subject of the suit pending determination of the issues that the plaintiff has raised in her suit. That is especially so because the 5 th and 6th defendants have not found it necessary to controvert the plaintiff’s claims by filing a defence. I shall accordingly grant the Motion dated 21 st June 2017 in terms of prayer 4 thereof. Costs shall be in the cause. A date for mention for the purpose of pre-trial conference shall be assigned at the delivery of this ruling. Any party aggrieved by the orders made herein has the liberty to move the Court of Appeal appropriately within twenty-eight (28) days of this decision. It is so ordered. DATED, SIGNED and DELIVERED in OPEN COURT at KAKAMEGA this 9th DAY OF October , 2019 W. MUSYOKA JUDGE

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