Catherine Kamau & 1 other v Wambugu & 3 others

Respondents herein either by themselves, their agents, servants and/ or agents from trespassing, entering, constructing, disposing, selling, advertising for sale, alienating, or interfering in any other way whatsoever with all that parcel of land known as DUNDORI/LANET BLOCK 5/3271 pending hearing and determination of the suit. 4. THAT the Honourable Court be pleased to issue other such orders as it may deem fit and just. 5. THAT the costs of the Application be borne by the Respondents. 2. The application is premised on the grounds on the face of the Notice of Motion and supported by the Affidavit of the Applicant, sworn on even date. 3. The Applicant states that she filed the suit against the Respondents at the Chief Magistrates Court in Nakuru, being Nakuru CMELC No. E137 of 2022, wherein the vide a Ruling delivered on 21st March 2024, the learned Magistrate adjudicating the matter declared that the court did not have jurisdiction to determine a dispute between the Applicant and the Respondents as the jurisdiction lies before the High Court under Section 17 of the Married Women’s Property Act 1882. 4. Agreeing with that Ruling, the Applicant states that the matter should be transferred to this Court for hearing and determination, as this is a dispute related to property between married persons. 5. While referring to the said ruling which copy she has annexed to the Affidavit in support ( CWK-1), it is her argument that she is entitled to an interest in the suit property having been married to the 1 st Respondent during the acquisition and development of the suit property. 6. She states that the said property is in jeopardy of being wasted by the Respondents, who have made it clear that they intend to frustrate her interest in the suit property. For those reasons, she states that it is in the interest of RULING NAKURU HIGH COURT MSC. APPLICATION NO. 228 OF 2025 Page 2

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justice and fairness that she be granted the orders sought. She argues that she stands to suffer irreparable prejudice if the Orders sought are not granted. 7. Though served, the Respondents did not file any response despite the direction issued by this Court as to the service on the Respondents and the disposal of the application by way of written submissions. Applicant’s Written Submissions 8. These are dated 28th October 2025, where the Applicant framed the following issues for determination:1) Whether this Court is clothed with jurisdiction to hear and determine the suit. 2) Whether Nakuru CMELC No. E137 of 2022 ought to be transferred to this Court for hearing and determination. 3) Whether the Applicant has satisfied the threshold for the grant of interim injunctive relief. 9. On jurisdiction, the Applicant has placed reliance on the cerebrated case of the Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya )Ltd [1989]eKLR, which held that Jurisdiction is everything and without it, the court has no power to take any further step and there would be no basis for continuation of proceedings pending other evidence and that it must down its tool in respect of the matter at hand. 10. Further, she has placed reliance on Section 17 of the Married Women’s Property Act 1882 which provides that:- In any question between husband and wife as to the title to or possession of property, either party may apply by Summons or otherwise in a summary way to the High Court, and the High Court may make such order with respect to the property in dispute as it thinks fit.” 11.The Applicant therefore states that, as noted by the lower court, jurisdiction lies exclusively with the High Court. She therefore submits that the RULING NAKURU HIGH COURT MSC. APPLICATION NO. 228 OF 2025 Page 3

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application herein merely seeks to give effect to the lower court’s lawful finding. 12.On whether the CMELC No. E137 of 2022 should be transferred to this Court, the Applicant cites Section 18 (1) (b) of the Civil Procedure Rules on this Court’s power to withdraw and transfer suits from the subordinate courts. She therefore submits that it is a proper and deserving case for transfer as the trial court had already declined jurisdiction and made a recommendation on the same. 13. Further, the Applicant relies on the discretionary power of this Court to transfer proceedings from one court to another. In support, he places reliance on Heinz Isbrecht v Charles Ochieng Ndiga (Msa ) Misc. Application No. 20 of 1997 and submits that the matter had not yet been set down for hearing on merit, and therefore, transferring this matter may not affect the proceedings or occasion any prejudice to any party. 14. She submits that it would cause injustice for the suit to be struck out instead of being transferred, considering that the only reason it could not be heard before the lower court is the relationship between the Plaintiff/ Applicant t and the 1st Defendant /Respondent. 15.On whether the Applicant has met the threshold for the interim injunctive order, she relies on the principles set down in the case of Giella vs Casman Brown and another (1973) E.A. 358 and submits that she has demonstrated a prima facie interest in the property having been married to the 1 st Respondent at the time of acquisition and development of the property during the subsistence of the said marriage. 16.As to the what a prima facie case is, reliance is placed on the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others (Civil Appeal 39 of 2002) [2003] KECA 175 (KLR) where the Court of Appeal held: “A prima facie case in a civil application includes but is not confined to a genuine and arguable case.” It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there RULING NAKURU HIGH COURT MSC. APPLICATION NO. 228 OF 2025 Page 4

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exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 17.The Applicant therefore submits that she has demonstrated a prima facie case and the subject property should be preserved by this Court. 18.On irreparable injury, the Applicant cites the case of Stephen Sonto Sipal v Co-operative Bank of Kenya Ltd & another (20180 eKLR and submits that she has already demonstrated her relationship with the 1st Respondent and her lawful interest in the suit property being a matrimonial property, and that from the conduct of the 1st Respondent, she has noted that the property is at the risk of being waste to her prejudice detriment, hence the prayer r for injunctive Orders. 19. As to what is irreparable injury, reliance is placed on the case of Pius Kipchirchir Kogo v Frank Kimeli Tena I (2018)eKLR . Further while relying on the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 others [2013] KECA 347 (KLR) , she submits that interference with the suit property would render the suit nugatory and the loss would not be adequately compensated by damages. 20.On balance of convenience, the Applicant submits that it is only applicable where the court is in doubt on the other principles and in this case, the circumstances herein do not warrant a balance of convenience for the reasons that it is evident that the Applicant is an equal lawful proprietor of the suit property and therefore, the balance of convenience tilts in her favour. 21.She therefore prays that the application dated 26 th June 2025 be allowed as prayed. Analysis and Determination 22.Upon consideration of the application, the Supporting Affidavit together with the Submissions by the Applicant, the broad issues for determination are: RULING NAKURU HIGH COURT MSC. APPLICATION NO. 228 OF 2025 Page 5

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1) Whether this Court has jurisdiction to hear and determine this suit. 2) Whether the Chief Magistrates Court being Nakuru CMELC No. E137 of 2022 should be transferred to High Court for hearing and determination . 3) Whether the Applicant has satisfied the Court for grant of injunctive Orders as sought. 23. On whether the suit should be transferred to this Court, a perusal of the material before this Court reveals that, indeed, the Applicant is the wife of the 1st Respondent, as evidenced by a marriage certificate. The undisputed material before this Court is that the property herein was acquired and developed during the subsistence of the marriage between the Applicant and the 1st Respondent. 24.Further, it is evident that the 1st Respondent was the immediate registered owner of the subject property before it was registered in the names of the 2nd, 3rd and 4th Respondents. 25.A perusal of the Ruling by the learned Magistrate reveals that the registered owner of the subject suit property was the 1st Respondent, before it was transferred to the 2nd, 3rd , and 4th Respondent, who are the current registered owners of the said parcel of land being Dundori/Lanet Block5/3271. 26.It is said that the said property is where the Applicant and the 1st Respondent reside and that the 1st Respondent transferred the said property to the 2 nd, 3rd and 4th Respondents without obtaining the appropriate spousal consent from the Applicant. For that reason, the Applicant had filed the suit before the trial court, seeking injunctive orders. 27.It is indicated in the learned Magistrate’s Ruling that the 1 st Defendant /Respondent had filed a Replying Affidavit in opposition to the Application before the lower court and that the application was then canvassed by way of written submissions. As rightly put by the learned Magistrate, the issue RULING NAKURU HIGH COURT MSC. APPLICATION NO. 228 OF 2025 Page 6

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raised by the Applicant was that the subject property was matrimonial property transferred to the 2nd, 3rd and 4th Respondents without her consent. 28.As rightly acknowledged by the learned Magistrate, the Applicant herein had a triable issue that the suit property was a matrimonial property under Section 17 of the Married Women’s Property Act 1882. Jurisdiction to hear and determine the said dispute as between the Applicant and the 1 st Respondent lies in the High Court. On that ground, the transfer of the suit to this Court is justified even when the property is now registered in the names of the 2nd, 3rd and 4th Respondents. 29. On whether injunctive Orders should issue, pending hearing determination of the suit, the Applicant has to and satisfy the conditions established in Giella v Cassman Brown (supra) that:(i) She has a prima facie case with a probability of success. (ii) She will suffer irreparable injury, which would not adequately be compensated by an award of damages. (iii) If the court is in doubt, it will decide an application on the balance of convenience. 30. Regarding the above conditions, the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 others [2013] KECA 347 (KLR) clarified that the three conditions are to be applied as separate, distinct and logical hurdles which the Applicant is expected to surmount sequentially. 31.As to what constitutes a prima facie case, the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 others (Civil Appeal 39 of 2002) [2003] KECA 175 (KLR) held: “A prima facie case in a civil application includes but is not confined to a genuine and arguable case.” It is 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.” RULING NAKURU HIGH COURT MSC. APPLICATION NO. 228 OF 2025 Page 7

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32.In this case, the Applicant’s argument that the property was matrimonial property where spousal consent was required from her, but it was not sought and obtained from the Applicant before the transfer to the 2 nd, 3rd and 4th Respondents. This Court is satisfied that the Applicant has established that she has a prima facie case. 33.On whether she will suffer injury that cannot be compensated by an award of damages, the Applicant argues that the subject property is where she resides with the 1st Respondent, and it is a matrimonial property. While whether or not the property herein is a matrimonial property will be an issue for determination by the court after hearing both parties, this Court is satisfied that selling the alleged matrimonial property without her consent may not be compensated by damages and therefore, the balance of convenience tilts in her favour. 34. Considering that the Applicant seeks to protect her legal interest in the subject property, the interest of justice demands that the property be shielded from interference until the rights of the parties are fully ventilated through a hearing. 35. Accordingly, this Court makes the following Orders:1. Nakuru CMELC No. 137 of 2022 is hereby transferred from the Magistrates' Court to the High Court for full hearing and determination. 2. A temporary injunction is hereby issued restraining the Respondents herein, either by themselves, their agents, servants and/ or agents from trespassing, entering, constructing, disposing, selling, advertising for sale, alienating, or interfering in any other way whatsoever with all that parcel of land known as DUNDORI/LANET BLOCK 5/3271 pending hearing and determination of the suit. 3. The costs of the Application shall be in the cause. Dated, signed and delivered at Nakuru this 25th May, 2026. RULING NAKURU HIGH COURT MSC. APPLICATION NO. 228 OF 2025 Page 8

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PATRICIA GICHOHI JUDGE N/A Mr. Mwagangi h/b for Mr. Chege for Applicant N/A for Respondents Erickson, Court Assistant RULING NAKURU HIGH COURT MSC. APPLICATION NO. 228 OF 2025 Page 9

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