Fen v Mnn

5. In response, the Respondent denies that the Applicant has proved any proprietary interest in the alleged property, contends that the property has not been identified or ownership established, and denies confiscating any documents. He maintains that the application is unsupported by evidence. 6. The Applicant’s submissions dated 02nd February 2026 rely on the principle that contribution —whether financial or non-financial—confers a beneficial interest in matrimonial property. The Respondent’s submissions dated 06th March 2026 argues that no prima facie case has been established to support the orders sought. 7. From the evidence on record, the issues for determination are: 1. Whether the Applicant has established a prima facie case with a probability of success 2. Whether the Applicant has proved the existence of matrimonial property and her contribution thereto 3. Whether ownership of the alleged confiscated documents has been established 4. Whether the threshold for grant of the interlocutory orders sought has been met; and 5. What orders should be made. 8. The starting point is the law on burden of proof. Sections 107 and 109 of the Evidence Act place the legal and evidential burden upon the party who asserts the existence of a fact. This position has been affirmed by the Court of Appeal in Patrick Lumumba Kimuyu v Prime Fuels (K) Limited [2018] KECA 198 (KLR), that he who alleges must prove. The Applicant therefore bears the obligation of demonstrating, through cogent and admissible evidence, the existence of matrimonial property, her contribution thereto, and the alleged acts of exclusion and confiscation. 9. The first issue is whether the Applicant has established a prima facie case with a probability of success. The governing principles are settled in Giella v Cassman Brown (1973) EA 358 as restated by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR. A prima facie case must disclose, on the material presented, an identifiable legal or equitable right which has apparently been infringed. It is not sufficient to raise arguable claims; the right itself must be demonstrated. 10. The Respondent has relied on authorities emphasizing that interlocutory relief cannot issue in the absence of a demonstrated right supported by credible evidence. This position accords with the binding jurisprudence in Nguruman that the existence of a prima facie case is the indispensable foundation for the grant of an injunction. 11. The Applicant’s claim is anchored on an alleged beneficial interest in what she describes as a matrimonial home situate at Omogochoro. She makes reference to land described as parcel number Central/Kitutu/Bogetaori/58, which she associates with the Respondent’s family. However, no title document, official search, or other registrable instrument has been produced to establish the existence, ownership, or legal status of that land. 12. In the absence of such foundational evidence, the Court is unable to ascertain the existence of the property as an identifiable proprietary subject or its nexus to the parties. A prima facie case cannot be founded on unproven or indeterminate subject matter. The Applicant has therefore failed to demonstrate an enforceable right capable of protection at this stage. 13. The Applicant’s reliance on Pettitt v Pettitt [1970] AC 777 is noted. That authority recognises that contribution may give rise to a beneficial interest. However, its application presupposes proof of the property in question and the proprietary framework within which such interest may arise. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6718/eng@2026-04-23 2

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In the present case, that foundational element has not been established. The authority is therefore distinguishable. 14. Accordingly, the Court finds that no prima facie case with a probability of success has been established. 15. The second issue is whether the Applicant has proved the existence of matrimonial property and her contribution thereto. The Court has already found that the existence of the alleged property has not been established by documentary evidence. In those circumstances, the question of contribution cannot be meaningfully determined at this stage, as contribution can only attach to identifiable property. The issue is therefore answered in the negative. 16. The third issue is whether ownership of the alleged confiscated documents has been established. The Applicant alleges that the Respondent confiscated personal documents, including logbooks and certificates. The Respondent denies possession. 17. While copies of certain documents are annexed, there is no cogent evidence demonstrating that the Respondent is in possession of the originals or that he unlawfully deprived the Applicant of them. In the face of contested facts and absence of corroboration, the Court is unable to make a finding in favour of the Applicant on this issue. 18. The fourth issue is whether the threshold for grant of interlocutory orders has been met. The principles in Giella and Nguruman are sequential. Having found that no prima facie case has been established, the application fails at the first limb. The Court of Appeal in Nguruman was categorical that where no prima facie case is established, the Court need not consider irreparable harm or the balance of convenience. 19. Even if the Court were to consider those limbs, the Applicant has not demonstrated irreparable harm incapable of compensation by damages. Further, the orders sought would effectively determine contested proprietary rights at an interlocutory stage, which the Court must avoid as reinforced by Respondent’s authorities. 20. The final issue is what orders should be made. In light of the foregoing analysis, the Court finds that the Applicant has failed to satisfy the threshold for the grant of interlocutory relief. The issues raised, including the existence of matrimonial property, the nature and extent of contribution, and the parties’ respective proprietary interests, are substantive matters that cannot be determined at an interlocutory stage and can only be conclusively resolved upon a full hearing. Such questions properly fall for determination under section 17 of the Matrimonial Property Act, which provides the procedural framework for the ascertainment of rights in matrimonial property. 21. The Applicant is at liberty, if so advised, to institute a substantive Originating Summons for determination of those issues. 22 The upshot is that the Notice of Motion dated 11th February 2026 lacks merit and is hereby dismissed with costs. 23. This being a miscellaneous application, the file is hereby marked as closed. DELIVERED AT NYAMIRA THIS 23RD DAY OF APRIL 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6718/eng@2026-04-23 3

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For Applicant - Mr.Arosi for Arosi Orango & Associates Advocates For Respondent - Mr. Ochwangi for Ochwangi & Co. Advocates https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6718/eng@2026-04-23 4

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