Las v Mmo

c) Twenty (20) Rental units of Two (2) bedrooms each erected on Property L.R No. 12715/3XXX located in Syokimau, along Katani Road, also known as [Particulars Withheld] heights; and d) Eight (8) Rental units of two (2) bedrooms each erected on Property L.R No. 12715/8XXX located in Syokimau, along Kiungani Road, also known as [Particulars Withheld] Apartments. 3. The primary suit giving rise to this interlocutory application is an intense matrimonial property dispute following the dissolution of the parties' marriage. The marital union between the Applicant and the Respondent was formally dissolved through divorce proceedings in the Milimani Chief Magistrate's Court, culminating in a Certificate of Making Decree Nisi Absolute issued on 11 July 2024, arising from Divorce Cause No. E879 of 2023. The Applicant then instituted the present originating proceedings seeking a declaration that the disputed properties constitute matrimonial property and praying for an order of equitable division of the said assets in accordance with the Matrimonial Property Act, 2013. 4. The Application is fiercely contested by the Respondent, who has filed a Replying Affidavit dated 30 September 2025, alongside written submissions urging the Court to dismiss the Application in its entirety. The Applicant subsequently filed a Supplementary Affidavit on 30 October 2025 to rebut the averments raised by the Respondent in his defence 5. The Court has carefully perused the pleadings, the Affidavits on record, the diverse exhibits annexed thereto, and the rival written submissions. The Applicant's Case 6. The Applicant avers that her relationship with the Respondent commenced with cohabitation as husband and wife in the year 2010. She asserts that this cohabitation crystallized into a valid customary marriage in the year 2011, evidenced by the negotiation and payment of dowry. To substantiate this claim, the Applicant relies on a written dowry agreement dated 19 May 2012, which details the negotiations between the families, alongside photographic evidence taken during the dowry payment ceremony (marked as exhibits "LAS-8a" and "LAS-8b"). The Applicant maintains that the parties lived continuously as husband and wife from 2011 onwards, raising their children together, before subsequently formalizing their union under civil law on 31 August 2016. 7. The core of the Applicant's substantive claim rests on the assertion that during the subsistence of this continuous marriage—spanning from the customary union in 2011 to its dissolution in 2024 —the parties jointly acquired and developed four significant real estate properties. The Applicant contends that she made substantial direct financial and indirect non-monetary contributions toward the acquisition, development, and maintenance of these properties. Her direct monetary contributions allegedly include payments sourced from her independent income as a civil servant employed by the Ministry of Environment and Natural Resources. In support of her claim of absolute financial independence and capacity to contribute, the Applicant has exhibited university fee receipts for her undergraduate and master's studies paid from her own resources, and a posting letter to her first workstation dated 2010, a period preceding her relationship with the Respondent. 8. Specifically, regarding the property known as the [Particulars Withheld] residency (Apartment No. B-2-4 erected on L.R No. 3734/1XX), the Applicant asserts that it served as the matrimonial home and was jointly purchased. She has exhibited an initial Letter of Offer from the vendor, Ghillie Company Limited, issued jointly to both the Applicant and the Respondent on 3 June 2020. To prove direct financial contribution, the Applicant has attached bank transfer receipts and deposit slips https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4867/eng@2026-04-17 2

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demonstrating that she personally remitted a total of Kshs. 1,500,000/= towards the purchase price. Furthermore, the Applicant claims to have paid Kshs. 1,200,000/= towards the stamp duty obligations for the said apartment, supporting this assertion with payment receipts and email correspondences. 9. The Applicant explains that the subsequent variation of the Sale Agreement—executed via a Deed of Variation dated 19 February 2021—to substitute Lakezal Enterprises Limited (a company solely owned by the Respondent) as the sole purchaser was a mere structural convenience. She avers this variation was agreed upon solely to enable the Respondent to secure a commercial loan facility of Kshs. 7,500,000/ = from NCBA Bank to finance the balance of the purchase price. The Applicant categorically denies the Respondent's assertion that her initial monetary contributions toward this property were ever refunded to her, insisting that no such agreement existed and no refund was ever executed. 10. Regarding the other three properties—a five-bedroom bungalow in Syokimau (L.R No. 12715/2XXX) and two separate complexes of rental units ([Particulars Withheld] heights and [Particulars Withheld] Apartments)—the Applicant claims extensive non-monetary and indirect contributions. She avers that the Syokimau bungalow served as their first matrimonial home from 2011 to 2021, and that she personally funded major physical renovations to the property. These renovations allegedly included the demolition of interior walls to create open space, the comprehensive refurbishment of the kitchen and bathrooms, the installation of new tiles and gypsum ceilings, and the purchase of built-in appliances such as a microwave, for which she has provided a receipt. Furthermore, she claims to have managed the household, cared for the children during their formative years, and actively participated in the operational management of the two rental enterprises. Her management of the rental units purportedly involved ensuring timely rent collection, undertaking property repairs, and settling utility bills, thereby enhancing the value and profitability of the assets. 11. The Applicant expresses grave apprehension that the Respondent, who currently exercises exclusive control over all the assets and solely collects the rental income to her exclusion, intends to alienate, transfer, or otherwise dispose of the properties. She argues that such actions would irrevocably defeat her equitable claims, render the pending suit nugatory, and leave her struggling to secure housing for herself and the children. The Respondent's Case 12. The Respondent mounts a robust, multi-pronged defence, fundamentally challenging the timeline of the marriage, disputing the classification of the properties as matrimonial assets, and invoking corporate law to shield a specific asset. 13. The Respondent contends that the marriage between the parties only commenced on 31 August 2016, the date the civil marriage was solemnized under the Marriage Act. He dismisses the Applicant's reliance on a prior customary marriage, arguing that prior to 2016, the parties merely experienced volatile periods of cohabitation marked by frequent separations and reunions, notably citing a separation on 8 June 2018. 14. Building upon this restricted marital timeline, the Respondent argues that three of the four disputed properties (the Syokimau bungalow, [Particulars Withheld] heights, and the [Particulars Withheld] Apartments) cannot constitute matrimonial property because they were acquired and developed by him prior to the 2016 civil marriage. He asserts that the Syokimau bungalow was purchased via a sale agreement dated 24 November 2010 and legally transferred to his sole name on 4 August 2011. Similarly, he claims [Particulars Withheld] heights was purchased in May 2013 (transferred in May 2015) and the [Particulars Withheld] Apartments were purchased and developed in February 2012. The Respondent posits that a spouse's inherent right to independently acquire and own property https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4867/eng@2026-04-17 3

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prior to marriage must be jealously guarded. He vehemently asserts that the Applicant contributed absolutely nothing—neither directly nor indirectly—to the acquisition or development of these specific assets, and that her claims are entirely unsubstantiated. 15. With respect to the [Particulars Withheld] residency, the Respondent advances a defence rooted in the doctrine of separate corporate personality. He argues that the apartment is legally owned by a thirdparty corporate entity, Lakezal Enterprises Limited, and is currently charged to NCBA Bank. Because the property is registered to a distinct legal person, the Respondent contends it falls completely outside the jurisdiction of matrimonial property division. He maintains that he merely resides in the apartment courtesy of his position as a director of the company. 16. Addressing the Applicant's documentary evidence of financial contribution to this specific apartment, the Respondent concedes that initial payments were made and receipts were issued in joint names. However, he alleges that the funds utilized were entirely his own, channelled either through the Applicant or through a third-party agent, Mr. Geoffrey Kilonzi Sammy, whom the Respondent claims deposited the cash on his behalf. The Respondent further asserts that when it became apparent he could not independently finance the purchase, the initial deposits were fully refunded, and the purchase was transferred to Lakezal Enterprises Limited via a formal Deed of Variation to which the Applicant willingly consented. To support this, he relies on an Affidavit sworn by Geoffrey Kilonzi Sammy regarding the cash deposits. 17. The Respondent further attacks the equitable basis of the Applicant's motion, arguing that she lacks clean hands. He asserts that throughout the marriage, he was the sole financial provider for the family despite the Applicant being gainfully employed. He claims to have independently purchased several other properties (in Kajiado and Kwale) and a Toyota Harrier motor vehicle solely in the Applicant's name, demonstrating his financial capacity and generosity, which the Applicant has allegedly suppressed from the Court. Finally, the Respondent argues that granting the injunction would cripple his construction business, as the disputed properties are utilized as collateral to secure commercial financing, and that the Applicant will suffer no irreparable harm as her claims, if proven, are fully capable of quantification and compensation by an award of damages. Analysis & Determination 18. The jurisprudence governing the grant of temporary injunctions in civil litigation in Kenya is firmly anchored in the historic and universally applied principles enunciated by the predecessor to the Court of Appeal in the landmark case of Giella v Cassman Brown & Co. Ltd (1973) EA 358. Under this tripartite test, an applicant seeking equitable injunctive relief must sequentially establish: a. A prima facie case with a probability of success. b. That the applicant stands to suffer irreparable injury which cannot be adequately compensated by an award of damages if the injunction is withheld. c. If the court remains in doubt, the application must be decided on the balance of convenience. 19. The Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 others eKLR reaffirmed that these three conditions are separate, distinct, and logical hurdles that the applicant is expected to surmount sequentially. 20. Firstly, the Court must determine whether the Applicant has established a prima facie case with a probability of success, satisfying the first limb of the Giella test. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4867/eng@2026-04-17 4

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21. The definitive standard for a prima facie case in civil litigation was articulated by the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 others KLR 125. The Court held that a prima facie case is "more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of success of the applicant's case upon trial". The standard of proof at this stage is not that the applicant must definitively prove their case to finality, but rather that the case, on the material presented, demonstrates a right that calls for an explanation or rebuttal. 22. The substantive right asserted by the Applicant is rooted in Article 45(3) of the Constitution, which guarantees that parties to a marriage are entitled to equal rights at the time of marriage, during the marriage, and at its dissolution. This constitutional imperative is operationalized by the Matrimonial Property Act. Section 14 of the Act creates a powerful statutory presumption that severely undercuts the Respondent's claims of absolute sole ownership: “ Where matrimonial property is acquired during marriage—(a) in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse..." 23. While the Respondent holds sole legal title to the Syokimau properties, the statutory presumption of trust generated by section 14 shifts the evidentiary burden squarely to the Respondent to definitively rebut the Applicant's beneficial interest through cogent evidence at trial. 24. Crucially, the assessment of this beneficial interest is inextricably linked to the concept of contribution. Section 2 of the Matrimonial Property Act defines contribution expansively to encompass both monetary and non-monetary inputs. Non-monetary contributions explicitly include domestic work, management of the matrimonial home, childcare, companionship, and the management of family business or property. 25. The Supreme Court recently provided definitive and exhaustive guidance on the division of matrimonial property in the landmark case of JOO v MBO KESC 4 (KLR). In that decision, the apex Court laid to rest the persistent debate surrounding automatic equal sharing, ruling that Article 45(3) does not guarantee an automatic 50:50 division of assets merely by virtue of marital status. Instead, the Court reaffirmed the foundational principle established in earlier cases such as Echaria v Echaria eKLR, holding that ownership vests according to the proven contribution of each spouse. 26. However, the Supreme Court in JOO v MBO profoundly elevated the judicial recognition and valuation of non-monetary contributions. The Court emphasized that equity in matrimonial property matters prioritizes fairness over strict quantitative financial measures. The Court recognized that a spouse may not contribute financially, yet through caregiving, domestic responsibilities, and household management, they create the indispensable conditions that enable the earning spouse to acquire the matrimonial assets. Such indirect actions amount to substantial contributions that entitle the non-earning spouse to an equitable share of the estate. 27. Evaluated against the rigorous standards of the Matrimonial Property Act and the Supreme Court's pronouncements in JOO v MBO, the Applicant has presented a formidable array of evidence establishing a prima facie case. Regarding direct monetary contribution, she has exhibited RTGS transfer documents and deposit slips detailing specific payments toward the purchase of the White Oak apartment, and a further Kshs. 1,200,000/= toward the associated stamp duty. While the Respondent counters that these funds were originally his and were subsequently refunded, he has failed to exhibit any conclusive documentary evidence of the alleged refund at this interlocutory stage. Given the Applicant's demonstrated independent income and the documentary paper trail bearing her name, her claim of direct financial contribution raises a highly triable issue that demands a full rebuttal at trial. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4867/eng@2026-04-17 5

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28. The Court finds that the Applicant has successfully established a prima facie case with a high probability of success, surmounting the first hurdle of the Giella test. 29. The second condition for the grant of an interlocutory injunction requires the Applicant to demonstrate that she will suffer irreparable injury that cannot be adequately compensated by an award of damages if the injunction is withheld. Irreparable injury refers to harm that is actual, substantial, and demonstrable, lacking a standard by which its amount can be measured with reasonable accuracy, or being of such a nature that monetary compensation will never serve as an adequate remedy. 30. The Respondent forcefully contends that the Applicant's claims, being purely financial in nature regarding her percentage share of the properties, are entirely quantifiable and capable of compensation by damages at the conclusion of the trial. 31. The Court finds this argument conceptually flawed within the specific and sensitive context of matrimonial real property disputes. The properties in question are not merely commercial commodities traded on an open exchange. They encompass the White Oak apartment and the Syokimau bungalow, which the Applicant avers served as the family's matrimonial homes for over a decade. Jurisprudence surrounding matrimonial property consistently recognizes the unique, nonfungible nature of real estate that has served as a family home or has been developed through joint marital effort. 32. If the Respondent is permitted to alienate, transfer, sell, or further encumber these properties to bona fide purchasers for value without notice pending the trial, the specific assets will be placed irrevocably beyond the reach of the Court. The substratum of the Applicant's Originating Summons —which seeks a declaration of beneficial interest and an equitable physical division of the specific properties themselves—would be destroyed. The Applicant would be left with a hollow declaratory decree against the Respondent personally, forcing her to initiate complex, protracted, and potentially fruitless execution proceedings to recover the monetary equivalent of her lost share. 33. Furthermore, the loss of a claimed proprietary interest in real estate, particularly a matrimonial home, carries profound emotional, psychological, and stability implications for the Applicant and the children of the marriage, harm that monetary damages cannot easily repair. The Court has frequently intervened to protect spouses from the unilateral disposal of matrimonial assets, recognizing that preserving the physical property ensures that the court retains the ability to render a meaningful, effective, and enforceable final judgment. 34. The Court concludes that the alienation of the disputed properties would inflict irreparable harm upon the Applicant by extinguishing her equitable proprietary rights and rendering her substantive suit nugatory. The Applicant has successfully surmounted the second hurdle of the Giella test. 35. The final limb of the Giella test dictates that if the court remains in doubt after assessing the first two elements, the application must be decided on the balance of convenience. The balance of convenience requires the Court to weigh the comparative mischief or harm that is likely to arise from granting the injunction against the harm likely to arise from withholding it. The primary objective of an interlocutory injunction is to maintain the status quo pending the final determination of the rights of the parties. 36. The Respondent argues that the balance of convenience tilts heavily in his favour because the properties are utilized as collateral to secure financial facilities crucial for his contracting business, which serves as his sole source of income. He asserts that an injunction would paralyse his commercial operations, precipitate defaults, and destroy his ability to provide for his family. The Respondent further invokes the equitable maxim that "he who comes to equity must come with clean hands." He alleges that https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4867/eng@2026-04-17 6

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the Applicant is acting in bad faith by seeking to restrain properties she knows were acquired independently and used for business loans, and by suppressing the fact that he purchased other properties (in Kajiado and Kwale) in her name. 37. The Court acknowledges the potential commercial inconvenience an injunction may pose to the Respondent's business operations. However, an order restraining the alienation, sale, or transfer of the properties does not inherently mandate the immediate recall of existing, legitimate bank facilities, provided the Respondent continues to service those loans. The injunction serves to freeze the proprietary title, preventing the absolute disposal of the assets or the creation of new, prejudicial thirdparty encumbrances that would defeat the Applicant's claims. 38. Conversely, the inconvenience to the Applicant if the injunction is denied is catastrophic to her case. Without preservative orders, the Respondent remains at absolute liberty to liquidate the entire portfolio of real estate, completely depriving the Applicant of the fruits of her alleged decades-long marital contributions. The risk of doing an irreversible injustice to the Applicant by permitting the unilateral disposal of potentially jointly owned assets far outweighs the temporary restriction placed on the Respondent's ability to freely alienate the properties. 39. Regarding the doctrine of clean hands, a party is only barred from equitable relief if their conduct relating to the dispute is tainted by fraud, deceit, or material non-disclosure designed to mislead the court. In the present case, the Applicant has approached the Court relying on statutory presumptions and documented evidence of financial transfers. The Respondent's assertion of bad faith is predicated entirely on his own contested version of events—specifically, his unproven claim that the Applicant's contributions were refunded and his assertion that other properties balance the scale. The Court cannot rely on highly disputed allegations of fact to conclude that the Applicant lacks clean hands. The Applicant's pursuit of a legitimate statutory remedy under the Matrimonial Property Act does not constitute inequitable conduct. 40. Therefore, the Court finds that the balance of convenience overwhelmingly favours the Applicant, and the preservation of the status quo is the only prudent course of action to ensure the ends of justice are not defeated. 41. The adjudication of interlocutory applications in matrimonial property disputes requires a delicate and measured balancing act. The Court must strictly avoid conducting a premature mini-trial on the merits, while simultaneously ensuring that credible, statutorily backed claims of marital contribution are not rendered entirely academic by the unilateral disposal of family assets by the registered proprietor. 42. The Respondent will have ample opportunity during the full trial to adduce evidence to rebut the statutory presumptions, to prove the alleged refund of the White Oak deposits, and to demonstrate his sole acquisition of the Syokimau properties without spousal contribution. Until such evidence is rigorously tested through cross-examination, equity, conscience, and justice demand that the properties remain intact. 43. Accordingly, the Court finds merit in the Notice of Motion dated 26 May 2025 and makes the following orders: i. Pending the hearing and final determination of the main suit, a temporary injunction is hereby issued restraining the Defendant/Respondent, whether by himself, his agents, his servants, his nominees, or his assigns, from selling, transferring, alienating, charging, disposing of, or in any other way interfering with the proprietary titles of the following properties: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4867/eng@2026-04-17 7

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a) Four (4) Bedroomed Matrimonial Apartment No. B-2-4 erected on Property L.R No. 3734/1XXX (Original No. 3734/XXX) Nairobi, also known as [Particulars Withheld] residency; b) Five (5) Bedroomed Bungalow erected on Property L.R No. 12715/2XXX located in Syokimau; c) Twenty (20) Rental units erected on Property L.R No. 12715/3XXX located in Syokimau ([Particulars Withheld] heights); and d) Eight (8) Rental units erected on Property L.R No. 12715/8XXX located in Syokimau ([Particulars Withheld] Apartments). ii. To ensure the expeditious resolution of this dispute and to mitigate any commercial hardship on the Respondent, the parties are directed to comply with all pretrial procedures within thirty (30) days from the date of this Ruling to pave the way for the setting down of the main suit for hearing. iii. The costs of this Application shall abide the final outcome of the main suit. DATED AND DELIVERED AT NAIROBI THIS 17 DAY OF APRIL 2026 HELENE R. NAMISI JUDGE OF THE HIGH COURT Delivered on virtual platform in the presence of: For the Applicant: Mr Maranga For the Respondent: Mr. Okello h/b Mr. Olando Court Assistant: Lucy Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4867/eng@2026-04-17 8

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