[2009] KEHC 785 (KLR)
The court found that the plaintiff had established a clear and straightforward case for the grant of a mandatory injunction. The defendant's occupation of the deceased's share of the property was uncontroverted and without lawful reason, as the defendant failed to respond to the application or contest the...
Source-derived case information.
- Citation
- [2009] KEHC 785 (KLR)
- Parties
- Plaintiff: Duncan Otieno Ogwang (suing as administrator to the estate of Joseph Ogwang Zablon-deceased); Defendant: Timothy Obiero
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 155 of 2009
- Procedural Posture
- Civil Case / Ruling on Application for Mandatory Injunction
- Outcome
- Application for mandatory injunction granted with costs.
- Legal Topics
- Mandatory Injunction, Leasehold Property, Unlawful Occupation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Duncan Otieno Ogwang (suing as administrator to the estate of Joseph Ogwang Zablon-deceased)
Plaintiff
Timothy Obiero
Defendant
Procedural Posture
Civil Case / Ruling on Application for Mandatory Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to a mandatory injunction to compel the defendant to vacate the deceased's share of the leasehold property pending determination of the suit.
- 2 Whether the defendant's occupation of the deceased's share is unlawful.
Ratio Decidendi
The court found that the plaintiff had established a clear and straightforward case for the grant of a mandatory injunction. The defendant's occupation of the deceased's share of the property was uncontroverted and without lawful reason, as the defendant failed to respond to the application or contest the plaintiff's averments. Applying the principle that mandatory injunctions at this stage require an unusually strong case, the court was satisfied that the plaintiff met this threshold and was entitled to the relief sought.
Court Disposition
Application for mandatory injunction granted with costs.
Orders
- The application for a mandatory injunction is granted.
- The defendant is ordered to vacate the deceased's share of Kisii Municipality Block 111/152.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Civil Case 155 of 2009
DUNCAN OTIENO OGWANG (suing as administrator to the estate of JOSEPH OGWANG ZABLON-DECEASED)……………………….PLAINTIFF
-VERSUS-
TIMOTHY OBIERO……………………………………….DEFENDANT
R U L I N G
The respondent was served with summons to enter appearance and the application but did not respond, either by entering appearance and filing defence or by replying to the affidavit. The averments by the applicant were therefore not controverted.
There is leasehold property comprised in Kisii Municipality Block 111/152 which is registered in the names of the deceased Joseph Ogwang Zablon and Jane Kerubo Ogori, each having half-share. Joseph died and was succeeded by the plaintiff Duncan Otieno Ogwang. The respondent has occupied the deceased’s share, and this is without permission or lawful reason. This application was brought for mandatory injunction to have him vacate the premises while the suit is waiting to be determined.
A mandatory injunction can only be granted at this stage where the issues are clear and straight forward. The case has to be unusually strong, compared to that of prohibitory injunction. (See East Africa Fine Spinners Ltd .V. Bedi Investments Ltd, Civil Application no. 72 of 1994 at Nairobi). I am satisfied that the applicant has provided that assurance.
The application is granted with costs.
Dated, signed and delivered at Kisii this 6 th Day of November, 2009
A.O.MUCHELULE
JUDGE
6/11/2009
6/11/2009
Before Hon. A.O.Muchelule-J
Court clerk-Mongare
Mr. Minda for the applicant
COURT: ruling in open court.
A.O.MUCHELULE
JUDGE
6/11/2009