[2022] KEHC 26966 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO. E058 OF 2021

IN THE MATTER OF THE ESTATE OF THE MATRIMONIAL PROPERTY ACT NO. 49 OF 2013

AND

IN THE MATTER OF AN APPLICATION FOR REPOSSESSION OF MOTOR VEHICLE KBV xxxx TOYOTA PRADO AND HOUSEHOLD ITEMS

BETWEEN

PJR...............................................PLAINTIFF/APPLICANT

VERSUS

JCT.......................................DEFENDANT/RESPONDENT

RULING

1. Before this Court is the Notice of Motion Application dated 8th September 2021 by which PJR, (the Applicant) seeks the following orders:-

“1. SPENT

2. SPENT

3. THAT pending hearing and determination of this

application, an order do issue compelling the Respondent to deliver up possession of motor vehicle registration Number KBV xxxx Toyota Prado and all household items in the annexed schedule to the Applicant and/or his appointed agents for preservation.

4. THAT the costs of this application be awarded to the Plaintiff/Applicant”

2. The Application was premised upon sections 7, 12and17 of the Matrimonial Property Act, 2013. Sections 1A, 1Band3Aof theCivil Procedure Act, Order 40 Rules 1,2 3, 4andOrder 51 Rule 1of theCivil Procedure Rules and all other enabling provisions of the law and was supported by the Affidavit of even date sworn by the Applicant.

3. Despite having been properly served with the application as well as with notice of the hearing date the Respondent JCT did not file any reply to the application nor did she appear in the court to oppose the same. As such the Application was unopposed. Pursuant to directions made by the court the applicant filed the written submissions dated 25th October 2021.

BACKGROUND

4. The Applicant deponed that he and the Respondent got married to each other on 21st November 2009inWashington, USA. Subsequent to the marriage, the couple relocated to Kenya in the year 2019.

5. On 8th January 2021 the parties separated due to irreconcilable differences and on 19th January 2021 the Applicant filed for divorce vide Milimani Divorce Cause No. xxx of 2021. The parties were also involved in Childrens Case No. xxxx of 2021 relating to custody and maintenance of the two children of the marriage. Judgment in the Childrens case was delivered on 23rd July 2021 in which the parties were granted joint legal custody of the minors.

6. The Applicant averred that the Respondent sought and obtained orders allowing her to relocate back to the USA with the two minors. That the Respondent did in fact move back to the USA leaving the Applicants properties, which include a Toyota Prado Vehicle Registration KBV xxxx with unknown persons.

7. The Applicant asserts that he is the registered owner of the Prado vehicle as well various household items enumerated in the schedule annexed to his supporting affidavit. He states that there is imminent risk that the vehicle and household items may be sold and/or disposed of to his detriment. Hence the present application.

ANALYSIS AND DETERMINATION

8. The applicant is in this motion seeking the grant of an interlocutory mandatory injunction in his favour. In order to merit said orders the Applicant must satisfy the court that he has a prima facie case in line with the rules set out in the case of Giella – vs Cassman Brown Limited [1973] E.A. 358.

9. As stated earlier the Applicant is seeking a mandatory injunction being the surrender of the vehicle as well as the various household items by the Respondent. It is not common for courts to grant mandatory injunctions at the interlocutory stage but in certain special circumstances, such injunctions may be granted even at the interim stage. Halsbury’s laws of English 4th Edition, 1979 at paragraph 946 expounded on the principles for granting mandatory injunctions as follows: -

“946. Power to grant mandatory injunctions. It has been said that the power of granting mandatory injunctions must be exercised with greatest possible care, but every injunction, whether restrictive or mandatory, ought to be granted with care and caution, and no more care or caution is required in the case of mandatory injunction than a restrictive injunction. The court has no more hesitation in granting a mandatory injunction in a proper case than any other injunction, and has frequently granted one in order, for instance, to remove obstructions to light. The court may grant a mandatory injunction upon trial of the action, or in certain circumstances upon an interlocutory injunction.” (Own emphasis)

10. The Court of Appeal discussed factors to be considered in granting interlocutory mandatory injunction in the case of Kenya Breweries Ltd & another v Washington O. Okeyo [2002] eKLRwhere it was held as follows:-

“The test whether to grant a mandatory injunction or not is correctly stated in Vol. 24 Halsbury’s Laws of England 4th Edition. Paragraph 948 which reads:

‘A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff …. a mandatory injunction will be granted on an interlocutory application.”’

11. Further in the case of Locabail International Finance Ltd v Agroexport and others (1986) 1 ALLER 901 it was stated as follows:-

“A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction”.

12. Finally in the case of Nation Media Group & 2 others v John Harun Mwau [2014] eKLR the Court of Appeal stated:-

It is trite law that for an interlocutory mandatory injunction to issue an applicant must demonstrate existence of and special circumstances…. A different standard higher than that in prohibitory injunction is required before an interlocutory mandatory injunction is granted. Besides existence of exceptional and special circumstances must be demonstrate as we have stated a temporary injunction can only be granted in exceptional and in the clearest of cases.” (own emphasis)

13. The Applicant claims to be the beneficial owner of the Prado vehicle as well as the various household items listed in the schedule. Annexed to the supporting affidavit dated 8th September 2021 (Annexture ‘PJR-2’) is a copy of Registration Certificate Serial Number KxxxxX for a Toyota Prado vehicle Registration No. KBV xxxx issued under the Traffic Act Cap 403, Laws of Kenya.

14. The name of the registered owner of the vehicle is listed as PJRwho is the Applicant herein. This certificate provides prima facie proof that the Applicant is the owner of said Prado vehicle.

15. As stated earlier the application is unopposed. It is stated that the Respondent has relocated to USA and is not using the vehicle. There is nothing to controvert the Applicants evidence of ownership of said vehicle. If the vehicle is sold and/or disposed during the pendancy of this case then I find the Applicant would be likely to suffer substantial loss. Thus, I find the Applicant has established a prima facie case in respect of the Toyota Prado vehicle.

16. With respect to the household items listed in the annexed scheduled I find there is no prima facie evidence presented by the Applicants to show that he owns said household items. Accordingly, it would be premature to issue a mandatory injunction in relation to the household items listed in the schedule.

17. Finally, I do find merit in this application and I make the orders as follows:-

1. THAT pending the hearing and determination of the originating summons dated 8th September 2021 the Respondent is directed to deliver up possession of motor vehicle Registration Number KBV xxxx Toyota Prado to the Applicant and/or his appointed agents for preservation.

2. This being a family matter each side shall bear its own costs.

Dated in Nairobi this 11th day of February 2022.

…………………………………..

MAUREEN A. ODERO

JUDGE