High Court 2876 of 2026

Divorce Petition Number MCDC/11 of 2023 between the respondent and the appellant hence summarily determining the Divorce Petition without hearing the appellant. b. That the learned magistrate erred in law and fact when she failed to analyse, consider and take into account both the submission and case law cited by the appellant hence occasioning miscarriage of justice. c. That the learned magistrate erred in both law and fact by usurping the role and powers of the National Police Service and further bringing the OCS Kamukuywa into a Civil matter hence occasioning a miscarriage of justice. d. That the ruling is ambiguous and poorly reasoned thereby occasioning a miscarriage of justice. 5. The appeal was disposed of by written submissions; however, at the time of writing this judgment, only the appellant’s submissions are before me for consideration. 6. The appellant submitted that the trial court delivered its ruling based on untrue averments raised in the respondent’s supporting affidavit, which he had denied in his replying affidavit, thus evidencing that the trial court failed to consider. 7. That at the time of its ruling, the trial court was fully aware of Kimilili SPMCC Divorce Cause No. 11 of 2023, in which the respondent had sought similar orders. By granting the injunctive relief sought by the respondent, the court condemned him unheard. That in filing the application and subsequently submitting a divorce cause against him seeking similar orders, the respondent approached the court with unclean hands and was thus not entitled to the remedies sought, as held in the case of Mohammed Shally Sese (Shah Sese) v Fulson Company Limited & Another [2006] eKLR. That the respondent failed to meet the requirements for the grant of an injunction as set out in the case of Yellow Horse Inns Limited v Nduachi Company Limited & 2 Others [2017] eKLR. That granting compliance upon the OCS to effect the order obtained amounted to injustice and oppression against him. Analysis and Determination 8. This being a first appeal, the Court is duty-bound to evaluate the evidence at the trial afresh and come to its own independent findings and conclusions, but at all times having in mind that it did not have the advantage of seeing the witnesses testify, (see Selle & Anor v Associated Motor Boat Co Ltd & Others [1968]EA 123). 9. I have reviewed the record. As previously stated, the respondent submitted an application dated 18/7/2023, in which she sought an injunction against the appellant, restraining him from blocking her access and entry into her matrimonial home, as well as an order prohibiting the appellant from assaulting or threatening her and her children. 10. It was the respondent’s case that the appellant and his brothers had assaulted and forcefully evicted her and her two children from their matrimonial home, leaving them destitute on the streets, and that the appellant was in the process of auctioning or selling the matrimonial properties without her consultation. 11. In response, the appellant filed a replying affidavit sworn on 20/7/2023, in which he denied being married to the respondent, assaulting her, or evicting her. The appellant further stated that he has only one child with the respondent, and the paternity of the other child is in dispute, as the respondent has refused to undergo a DNA test. 12. The trial court in its impugned ruling noted that it had already granted the respondent the temporary injunction restraining the appellant from blocking her access to the matrimonial home. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2876/eng@2026-03-05 2

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13. The record shows that on 18/7/2023, when the trial court considered the respondent’s application, it granted the respondent an injunction against the appellant, restraining him from blocking her access and entry into her matrimonial home. This court is thus called upon to determine, firstly, whether the trial court erred in granting the temporary injunction. 14. The principles for the grant of temporary injunctions were established in the case of Giella v Cassman Brown and Company Limited (1973) E.A 385. These are that, first, an applicant must demonstrate a prima facie case with a probability of success. Second, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury that cannot be adequately compensated by damages. Third, if the court is in doubt, it will decide the application based on the balance of convenience. 15. A prima facie case was defined in Mrao Limited –versus- First American Bank of Kenya and 2 Others (2003) KLR 125, to be a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case 16. In Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal held: “ The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion ... The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.” 17. In the present case, the respondent argued that the appellant had evicted her and their children from their matrimonial home, leaving them destitute on the streets. 18. However, the appellant gave conflicting information. On one hand, the appellant stated that he was neither married to the respondent nor involved in invading, evicting, or assaulting the respondent; on the other hand, he admitted that the dispute with the respondent concerned the disputed paternity of one of the children, whom he claimed he did not father. 19. In my view, the respondent established a prima facie case that she had a child with the appellant and that there was a possibility of being evicted from the matrimonial home. Accordingly, the respondent demonstrated a prima facie case. 20. On the second principle of irreparable harm, in Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 Others [2016] eKLR, the Court considered the Halsbury’s laws of England on what irreparable loss is and stated that: “ First, that the injury is irreparable and second, that it is continuous. By the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired and the fact that the plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2876/eng@2026-03-05 3

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21. The respondent needed to demonstrate that she was likely to suffer harm that cannot be compensated with monetary sums. I am convinced that the harm of being evicted from one’s matrimonial home cannot be compensated by monetary sums. 22. Regarding the balance of convenience, it also leans in favour of granting the respondent the temporary injunction. In any case, at this stage, the court is not required to fully decide the dispute between the parties but only to assess whether there is a clear and unmistakable right to be protected that is directly threatened by an act intended to be restrained. 23. Accordingly, I find that the respondent deserved the grant of the temporary injunction sought pending the determination of the suit. 24. Regarding the restraining order preventing the respondent from assaulting, coercing, intimidating, blackmailing, or threatening her and her children, the trial court granted the order despite recognizing that there was a lack of evidence from the respondent supporting such claims. 25. Section 12 (2) of the Protection Against Domestic Violence Act provides that a court shall have regard to the perception of the applicant, the nature and seriousness of the respondent's behaviour and the effects of that behaviour on the applicant. 26. The only evidence adduced by the respondent of the appellant’s assault was the OB attached to his application, which showed a report of assault made on 17/7/2023. Is this sufficient evidence of assault? It is not. In my view, the OB merely proves that a report was made and does not demonstrate that the alleged assault actually occurred or was caused by the appellant. 27. In DNM v JMK (Civil Appeal E392 of 2022) [2024] KEHC 9984, the court held that even if allegations of abuse are not fully proven, the fear of harm and threats to a spouse's rights are enough grounds to issue protection orders under the Constitution. 28. In this case, the restraining order sought against the appellant is permanent. It is clear that the appellant has been fulfilling the role of a father to the minors. Therefore, a permanent restraining order would prohibit him from accessing the minors indefinitely, which is not currently an issue before this court. 29. Accordingly, I find that the trial court erred in restraining the appellant from assaulting, coercing, intimidating, blackmailing, and/or threatening the respondent’s life and that of the two minors. 30. Regarding the appellant’s assertion that the trial magistrate erred and caused a miscarriage of justice by ordering the OCS Kamukuywa to assist in complying with the court orders, I find that this claim is unfounded and lacks merit. Courts do issue orders specifically directed at the National Police Service (NPS) to aid in enforcing court orders. This is because police officers have a legal duty to assist in implementing court orders if necessary, as the NPS is the body responsible for maintaining public order. 31. In conclusion, I find that the instant appeal is partially successful insofar as it restrained the appellant from assaulting, coercing, intimidating, blackmailing and/or threatening the respondent’s life and that of the two minors. It is so ordered. DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 5TH DAY OF MARCH 2026. R. OUGO JUDGE In the presence of: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2876/eng@2026-03-05 4

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Mr. Bw’onchiri for the appellant Respondent- Absent Brenda C/A https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2876/eng@2026-03-05 5

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