Case ID:163053

Beatrice Kwamangala Kutondo v Peter Itumo Ngove & another [2020] eKLR

Case Metadata

Case Number:

Civil Suit 385 of 2018

Parties:

Beatrice Kwamangala Kutondo v Peter Itumo Ngove & Stanbic Bank

Date Delivered:

29 May 2020

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Maureen Akinyi Odero

Citation:

Beatrice Kwamangala Kutondo v Peter Itumo Ngove & another [2020] eKLR

Court Division:

Civil

County:

Nairobi

Case Outcome:

Application declined

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & TAX DIVISION

CIVIL SUIT NO. 385 OF 2018

BEATRICE KWAMANGALA KUTONDO....................................................PLAINTIFF

VERSUS

PETER ITUMO NGOVE......................................................................1

ST

DEFENDANT

STANBIC BANK....................................................................................2

ND

DEFENDANT

RULING

(1) Before this Court is the Notice of Motion Application dated

3

rd

October 2018

by which

BEATRICE KWAMANGALA KUTONDO

(the Plaintiff/Applicant) seeks the following Orders: -

“1. SPENT

2. SPENT

3. THAT pending the hearing and determination of this suit, an order of injunction be issued restraining the Defendant/Respondents whether by themselves, employees, servants and/or agents or otherwise assigns and/or any person whatsoever acting on their behalf and/or under their mandate and/or instructions from alienating, advertising for sale, offering for sale, selling taking possession of leasing, transferring, charging or otherwise in any manner whatsoever interfering with LAND REFERENCE NUMBER 4894/396 (original L.R Number 4894/2012)

4. THAT costs of this application be provided for.

(2) The application which was premised upon

Order 40 Rule 1(a), 10(1)(a)

of the Civil Procedure Act and all enabling provisions of the law, was supported by the Affidavit of even date and the Supplementary Affidavit dated

19

th

August 2019

sworn by the Plaintiff/Applicant.

(3) The 1

st

Defendant/Respondent

PETER ITUMO PIUS NGOVE

opposed the application and relied upon his Replying Affidavit dated

11

th

April 2019

. The 2

nd

Defendant

STANBIC BANK LTD

filed a Replying Affidavit dated

29

th

March 2019

.

(4)

The application was canvassed by way of written submissions. The 1

st

Defendant/Respondent filed his written submissions on

6

th

September 2019

whilst the 2

nd

Defendant/Respondent filed its submissions on

30

th

September 2019.

BACKGROUND

(5) The Plaintiff/Applicant is the legal wife to the 1

st

Defendant/Respondent. During the subsistence of their marriage the couple acquired a parcel of land being

LR 4894/369 (original LR Number 4894/2012)

(hereinafter the “

suit property”

). They built upon the suit property their matrimonial home.

(6) On or about

31

st

August 2018

, the Plaintiff/Applicant came to learn that her husband (the 1

st

Defendant) had secured from the 2

nd

Defendant Bank a loan facility for

Kshs.30,000,000

using the suit property as security. This the Plaintiff alleges was done without her knowledge and/or consent as a spouse. The Plaintiff faults the 2

nd

Defendant Bank for failing to conduct due diligence and in failing to seek and obtain her consent as a spouse before registering the charge. The Plaintiff/Applicant also faults the 1

st

Defendant for giving a false statutory declaration to the Bank, stating that he was not married yet in reality he was at the material time legally married to the Plaintiff.

(7) The Plaintiff contends that the absence of spousal consent for the charge vitiates the capacity of the 1

st

Defendant, to charge the suit property to the bank, and seeks a declaration that the purported charge of the suit property in favour of the 2

nd

Defendant/Respondent is null and void. The Plaintiff claims that following the separation of the couple in

August of 2018

she continues to occupy the suit property together with her children and thus may be rendered homeless should the Bank move to realize its security. The Plaintiff is apprehensive that she stands to suffer irreparable loss and damage which cannot be compensated by an award of damages if the injunctive orders sought are not granted.

(8) In response the 1

st

Defendant concedes that he was indeed legally married to the Plaintiff at the time when the suit property was acquired. However, he denies that he and the Plaintiff acquired the suit property together and insists that there was no agreement or joint registration of the suit property. The 1

st

Defendant denies that the couple resided in the suit property as their matrimonial home and claims that they have at all times resided in the Kasarani area of Nairobi. That it was not until

August 2018

when due to disagreements the couple separated, that the Plaintiff of her own volition left, took some of her belongings and moved into the house the 1

st

Defendant was in the process of constructing on the suit property.

(9) The 1

st

Defendant concedes that he did secure a facility with 2

nd

Bank and that he did register a charge against the suit property. However, the 1

st

Defendant states that he is solely responsible for the repayments of that loan.

(10) The 1

st

Defendant contends that under

Section 13

of the

Matrimonial Property Act

spouses can acquire property separately and that having acquired the suit property in his individual capacity, the registration of the same in his name cannot be said to have been fraudulent. Finally, the 1

st

Defendant submits that he was at liberty to utilize the suit property as he wished including taking out a loan facility against security of the same.

(11) In their Replying Affidavit the legal officer with the 2

nd

Defendant Bank denies having failed to exercise due diligence. It is confirmed that the 1

st

Defendant approached the Bank on

1

st

December 2016

and secured a loan facility of

Kshs.30,000,000

repayable in equal monthly installments of

Kshs.373,056.24

for 24 months. It is averred for the bank that in the home loan application form, the 1

st

Defendant indicated that he was single (not married) and that as such no special details were applicable. That the 1

st

Defendant indicated that he was the sole owner of the suit property and this was confirmed by the Title Deed which bore only the name of the 1

st

Defendant as proprietor. Therefore the Bank denies that it failed to exercise due diligence in the matter in view of the fact that the 1

st

Defendant had indicated that he was not married. It is averred that the 1

st

Defendant indicated to the Bank that he was the sole proprietor of the suit property and availed to the Bank a copy of the Title Deed which confirmed this fact (Annexture “

AN2

” to the Replying Affidavit dated

29

th

March 2019

) In the circumstances the Bank contends that it had no legal obligation to seek and obtain spousal consent from the Plaintiff.

ANALYSIS AND DETERMINATION

(12) The present application seeks orders for an interlocutory injunction. In the circumstances the Plaintiff/Applicant must satisfy the conditions set out in the case of

GIELLA VS CASMAN BROWN (1973) E.A 358

in which the Court stated as follows:-

“The conditions for the grant of an interlocutory injunction are now, I think well settled in East Africa First an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not be adequately compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience.”

PRIMA FACIE CASE

(13) The definition of what constitutes a prima facie case was set out in the case of

MRAO LTD VS FIRST AMERICAN BANK OF KENYA LTD & 2 OTHERS (2003) E.A

where the court held as follows:-

“So what is a prima facie case. I would say that it is a case in which on the material presented to the court or 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.”

The Court went on to clarify 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 the applicant’s case upon trial. That is clearly a standard which is higher than an arguable case.”

(14) The Applicant contends that the Respondent Bank failed to secure her consent as a spouse before proceeding to charge the suit property which she terms as “

matrimonial property

”. The Applicant further contends that her interest in the suit property is protected by virtue of

Section 93(2)

of the

Land Registration Act 2012.

It is submitted that the Respondent acted dishonestly by indicating to the Bank that he was not married when he sought and obtained the loan facility in question.

(15) The basis of this Application is that the Applicant is apprehensive that the Bank may proceed to sell or auction the suit property to her detriment. The facts indicate that the property is not under threat of any sale on auction at all. The loan is currently being regularly serviced and is not in arrears. There has been no default by the 1

st

Plaintiff towards the repayment of any of the loan installments. The Bank have not issued any letter of demand or any statutory notices in respect of the suit property. There is therefore at the present time no danger of sale of the suit property. In the premises I find that the present application is premature and I find that no prima facie case has been established.

IRREPARABLE HARM

(16) The Plaintiff/Applicant pleads that in the event the suit property is sold she stands to suffer irreparable harm as this is the matrimonial home which she occupies with her children. Firstly, as evidenced by the Title Deed the sole proprietor of the suit property is the 1

st

Defendant. As such the Plaintiff/Applicant has no legal claim over that property. Her claims of dishonesty and malice on the part of the 1

st

Defendant as well as the Applicant’s claim to right of occupation of the suit property as the matrimonial home, are matters which cannot be determined at this interlocutory stage. These are issues which can only be determined at a full hearing of the suit at which evidence is called. In any event the value of the suit property is quantifiable and in my view an award of damages would suffice as adequate compensation in the event the court decided in favour of the Plaintiff/Applicant. It must be reiterated that at this stage there exists no threat of sale of the suit property.

BALANCE OF CONVENIENCE

(17) At the present time the loan facility secured by the 1

st

Defendant by charging the suit property is up to date. It is not in arrears and payments are being made to the bank as and when required. There exists no risk of sale of the suit property. The balance of convenience clearly favours the Defendants.

For the above reasons, I find no merit in this present application I decline to grant the interlocutory orders sought. Costs of the application are awarded to the 1

st

and 2

nd

Defendant/Respondent.

Dated in

Nairobi

this

29

th

day of

May

2020

.

............................................

Justice Maureen A. Odero