REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL CASE NO. 90 OF 2013

DORRIS KANINI NDUNDA ……………………….. PLAINTIFF/APPLICANT

V E R S U S

FAMILY BANK LIMITED ………………….. DEFENDANT/RESPONDENT

RULING

1.  The Plaintiff is the wife of NOLLY KANO MUSANGO.  Her husband by a charge dated 3rd May 2012 gave the property Kwale/Ukunda/3637 as security for financial advances by the Defendant to Bulk Petroleum Limited the principal debtor.  The Principal Debtor has defaulted in the repayment of that facility.  The Defendant sought to realize its security by selling the charge property.

2. By the present suit the Plaintiff seeks a declaration that the charge and the Defendant's exercise of statutory power of sale are illegal, null and void.  The Plaintiff has pleaded in her plaint that the charge is null and void because firstly it was drawn and executed as per the provisions of the Registered Land Act Cap 300 (RLA).  That Act has now been repealed.  Secondly, that the Defendant failed to take into account the Plaintiff's spousal rights over the matrimonial property as provided in Sections 28, 93 and 96(3) of the Lands Act, 2012.

3. The Plaintiff filed a Notice of Motion dated 23rd July, 2013 seeking an interlocutory injunction to restrain the Defendant from selling the matrimonial property pending the hearing of this suit.

4. That application, the affidavits and the submissions filed by the parties raised very interesting issues of law that is whether a charge executed and registered after the Lands Act 2012 commenced is governed by the previous law such as in this case RLA or by the Lands Act, 2012.  It is admitted by both parties that the charge was executed on 3rd May, 2012 and was registered on 8th May 2012.  The Lands Act, 2012 and the Land Registration Act 2012 commenced their operation on 2nd May 2012.  It seems also not to be denied that the Plaintiff is the wife of Mr. Musango.  Section 93 of the Land Registration Act, 2012 provides as follows-

“93.(1) Subject to the law on matrimonial property, if a spouse obtains land for the co-ownership and use of both spouses or, all the spouses-

a. there shall be a presumption that the spouses shall hold the land as joint tenants unless-

i. a provision in the certificate of ownership or the certificate of customary ownership clearly states that one spouse is taking the land in, his or her own name only, or that the spouses are taking the land as joint tenants.” 

5. Parties have raised counter arguments in support and in opposition of the Notice of Motion which arguments I am of the view I should not make final determination of the same.  If I was to make final determination of those issues I would be interfering with the determinations of the Judge who shall hear this matter in full.  The Court of Appeal in the case MBUTHIA -VS- JIMBA CREDIT CORPORATION & ANOTHER [1988]KLR1 cautioned against that as follows-

“The correct approach in dealing with an application for an interlocutory injunction is not to decide the issues of fact, but rather to weigh up the relevant strength of each side’s propositions.  The lower court judge in this case had gone far beyond his proper duties and made final findings of fact on disputed affidavits.”

6. I do find that the issue in regard to which Statute the charge is subject does raise a prima facie case with a probability of success as required by the now famous case of GIELLA -VS- CASSMAN BROWN & CO. LTD  [1973] E.A. 358.  Because the Court does find that the Plaintiff has raised a prima facie case the Court will grant the injunction sought but only for a limited period.

7. I grant the following orders-

a. An injunction is hereby granted restraining the Defendant, its servants and agents from selling, advertising or alienating property Kwale/Ukunda/3637 for a period of six (6) months from the date hereof or until the determination of this case whichever occurs first.

b. The costs of the Notice of Motion dated 23rd July 2013 shall be in the cause.

Dated  and  delivered  at  Mombasa   this  19^th   day of   December,   2013.

MARY KASANGO

JUDGE