Keziah Auma

REPUBLIC OF KENYA IN THE SENIOR RESIDENT MAGISTRATE’S COURT AT TAMU ELC NO. 9 OF 2020 WIFE ………………………….…………………...………………………….…………1ST PLAINTIFF HUSBAND………………………….……………………………….……...………….2ND PLAINTIFF VERSUS BANK…………………………… ……………………...………….……….….….….1ST DEFENDANT AUCTIONEERS………………….………………………..…………....2ND DEFENDANT DEFENDANTS/RESPONDENTS WRITTEN SUBMISSIONS (Application dated-) Your Honour, what is before you for determination is the Plaintiff’s application dated- which seeks the following orders; 1. Spent. 2. THAT the Honourable Court be pleased to grant leave for the Applicant to be enjoined in the proceedings herein. 3. THAT the Honourable Court be pleased to order for the amendment of pleadings filed herein to enjoin the Applicant as interested Party. 4. THAT the Honourable Court be pleased to issue injunction orders restraining Respondents herein or any other person acting on their behalf or authority from selling parcel of Land Kisumu/Koru/1332 by public auction or otherwise until the suit filed is heard and determined. 5. THAT the costs of this application be provided for. The Defendants filed a replying affidavit dated- opposing the application herein. A. WHETHER THE PLAINTIFF HAS SATISFIED THE CONDITIONS FOR JOINDER AS A THIRD PARTY? Your Honour the standard to be met in an application such as this one was reiterated in the case of Shirvling Supermarket Limited v Jimmy Ondicho Nyabuti & 2 others [2018] eKLR where the High Court stated; “The test in applications for joinder is firstly, whether an applicant can demonstrate he has an identifiable interest in the subject matter in the litigation though the interest need not be such interest as must succeed at the end of the trial.  Secondly, and in the alternative it must be shown that the applicant is a necessary party whose presence is necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit” The Applicant vide this application has sought to enjoined to the suit herein as an interested party on the basis that she is a wife to the Plaintiff and has been residing on the subject property since 1994. She also contends that as the supposed wife to the Plaintiff she never gave her consent for charging the subject property and was also unaware that the same had been used as security for the property. To support the application, the Applicant has annexed a photo of the alleged matrimonial home situated supposedly on the subject property. We refer to the case of Marta Wangechi Kimani v Kenneth Kaunda Kimani & 6 others [2017] eKLR where the Environment and Land Court held as follows ; “The issues in controversy as explained above is that of an alleged transaction that was done without spousal consent. The Applicant has stated that she has information that will assist the Court to determine the matter to its conclusion.  For one to show the interest in the matter at hand, she would have to demonstrate that she is a spouse or show evidence leading to being a spouse in which event it would entitle her to an overriding interest in the property which would be prior or after the marriage. Secondly, she must show that she made a financial contribution to the property. This would entitle her to a beneficial interest in the suit property. Your Honour, It is our submission that the Applicant has not satisfied the grounds for joinder as interested party. The alleged marriage has not been proven at all by any substantive evidence. The Applicant has not disclosed how this marriage supposedly occurred or when it occurred. Whether the marriage a civil, Christian, customary or an Islamic marriage. The Applicant, we submit is required to first establish the existence of the said marriage which we submit she has not. She has therefore has not demonstrated the identifiable stake she has in this matter by proving the existence of a marriage between herself and the Plaintiff. The question as to whether the subject property falls under what can be termed as matrimonial as between the intended interested party and the 2nd Plaintiff therefore does not lie. The Applicant is further required to demonstrate that her participation in the suit herein is vital as she has key information or evidence that will assist the Court in determining the matter. Your Honour, the Applicant save for stating that she is a wife to the 2nd Plaintiff and annexing photos of an unknown /unidentified property, has not presented this Honourable Court with any substantive tangible information or evidence that deem her participation in this suit necessary. She claims to have been in occupation since 1994 yet the title deed herein was issued out to the 2nd Plaintiff in 2001. B. WHETHER THE APPLICANT HAS MET THE THRESHOLD FOR AN ORDER OF INJUNCTION? Your Honour, having failed to prove the existence of a marriage between herself and the 2nd Plaintiff thereby the personal interest in the suit or subject property herein, we submit that the orders of injunction being sought cannot be issued in favour of a stranger. In any event the application is duplicitous as there is already a pending application dated- filed by the Plaintiff seeking orders of injunction against the Defendants/Respondents. We urge Your Honour to find the same and dismiss the Application herein with costs. We so pray. Dated at Kisumu This………………………………..day of………………………………….2020 ___________________ MULONDO& COMPANY ADVOCATES LLP FOR THE 1st and 2nd DEFENDANTS DRAWN & FILED BY: MULONDO & COMPANY ADVOCATES LLP REINSURANCE PLAZA, 2ND FLOOR P.O BOX-, KISUMU.- TO BE SERVED UPON: ANYANGO OWINO & ASSOCIATES AWORI HOUSE 3RD FLOOR BANK STREET P.O BOX- KISUMU.