Automated Summary
Key Facts
Salome Chepkemboi Kimaiyo (Applicant) and Michael Kimaiyo Chepkok (Respondent) were married on 3 December 1975 and divorced in 2022. The Applicant seeks to prevent the Respondent from disposing of jointly acquired matrimonial properties (L.R. No. Uasin Gishu/charar 32 & 33, Eldoret Municipality Block 9/1006) registered solely in the Respondent's name. The court granted a temporary injunction to protect these properties pending litigation, citing the Applicant's joint contributions and threats of disposal.
Issues
- Whether the Applicant has established grounds for grant of Injunctive Orders, including under Order 40 Rule 1 of the Civil Procedure Rules and sections of the Marriage Act. The court assessed if the Applicant demonstrated a justiciable claim and the necessity of preserving the matrimonial properties from adverse disposal by the Respondent.
- Whether the applicant has established a prima facie case, requiring a clear and material right threatened by the Respondent's actions. The court evaluated the Applicant's evidence of joint ownership and the Respondent's threats under principles from Nguruman Limited vs Jan Bonde Nielsen, emphasizing the balance of convenience and irreparable harm.
Holdings
- The court granted a temporary injunction against the Respondent, restraining him from selling, charging, transferring, leasing, or otherwise dealing with the matrimonial properties (L.r. No. Uasin Gishu/charar/32, Lr No. Uasin Gishu/charar 33, and Eldoret Municipality Block 9/1006) pending the hearing and determination of the substantive suit. The Applicant's joint ownership and the Respondent's threats to dispose of the properties were key factors.
- The costs of the injunctive application were ordered to be 'costs in the cause', meaning they will be borne by the prevailing party in the substantive suit.
- A prohibition order was issued against the Land Registrar Uasin Gishu County to prevent any adverse dealings with the subject properties until the Originating Summons is resolved.
Remedies
- A prohibition order was entered against the Register of Titles, preventing the Land Registrar Uasin Gishu County from affecting the parcels of land in question until the hearing and determination of the Originating Summons.
- The costs of the application were ordered to be borne as costs in the cause (i.e., the main suit).
- An order of temporary injunction was issued against the Defendant/Respondent, restraining him from selling, charging, transferring, leasing, or dealing with the matrimonial properties (L.r. No. Uasin Gishu/charar/32, Lr No. Uasin Gishu/charar 33, and Eldoret Municipality Block 9/1006) in any adverse manner.
Legal Principles
The court applied the principles governing interim injunctions, requiring the applicant to establish a prima facie case of a right threatened with violation, a likelihood of irreparable injury without the injunction, and that the balance of convenience favors granting the order. The applicant's joint ownership of matrimonial properties and the respondent's threats of disposal were key factors.
Precedent Name
- Giella Vs Cassman Brown
- Chebii Kipkoech Vs Barnabas Tuitoek Bargoria & Another
- Family Bank Limited vs. Tassels Enterprises Limited & 2 Others
- In Re Yendi Skin Affairs; Yakubu II v. Abdulai
Cited Statute
- Civil Procedure Act
- Civil Procedure Rules
- Civil Procedure Rules 2010
- Marriage Act
- Matrimonial Property Act
- Matrimonial Properties Act
Judge Name
R. Nyakundi
Passage Text
- A party to the proceedings may, before or after commencement of the proceedings under these Rules, but before the final determination of the respective claims, apply for temporary injunctions or other interlocutory orders in accordance with Order 40 of the Civil Procedure Rules, 2010, and the court may grant the orders sought on such terms or conditions as may be just in the circumstances.
- I am satisfied that the Plaintiff/Applicant has satisfied the conditions necessary for the grant of the injunctory orders sought. Consequently, I find merit in the Notice of Motion Application dated 28th November 2024 and grant the following orders:
- The principle that there must be a substantive cause of action underpins the grant of an injunction. This remains to be good law. Therefore, the court has the jurisdiction to grant an injunction against the Defendant/Respondent on the basis that there is a cause of action or a substantive claim against him which if no injunction is granted, it might dissipate or render the suit nugatory.