[2015] KEHC 4765 (KLR)
The Plaintiff established, through uncontroverted evidence, that her husband was the lawful owner of the suit premises and that she was duly authorized to act on his behalf via a registered power of attorney. The Defendant, having been a tenant, defaulted on rent and refused to vacate the property. The Defendant's...
Source-derived case information.
- Citation
- [2015] KEHC 4765 (KLR)
- Parties
- Plaintiff: Teresiah Wanjiru (suing for and on behalf of Gibson Reuben Wamwea by virtue of a Power of Attorney no. IP/A60107/1); Defendant: Christopher Ongechi Ombati
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 306 of 2013
- Procedural Posture
- Civil Suit / Judgment After Formal Proof; Interlocutory Judgment Previously Entered Due to Non Appearance
- Outcome
- judgment for the plaintiff
- Legal Topics
- Vacant Possession, Mandatory Injunction, Tenant Landlord Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresiah Wanjiru (suing for and on behalf of Gibson Reuben Wamwea by virtue of a Power of Attorney no. IP/A60107/1)
Plaintiff
Christopher Ongechi Ombati
Defendant
Procedural Posture
Civil Suit / Judgment After Formal Proof; Interlocutory Judgment Previously Entered Due to Non Appearance
Legal Issues
- 1 Whether the Plaintiff is entitled to exclusive possession and occupation of Kahawa West House No. CC 22 Nairobi.
- 2 Whether the Defendant should be compelled to give vacant possession of the suit premises.
- 3 Whether the Plaintiff is entitled to costs and interest.
Ratio Decidendi
The Plaintiff established, through uncontroverted evidence, that her husband was the lawful owner of the suit premises and that she was duly authorized to act on his behalf via a registered power of attorney. The Defendant, having been a tenant, defaulted on rent and refused to vacate the property. The Defendant's failure to enter appearance or file a defence left the Plaintiff's case unchallenged. The court found the Plaintiff entitled to exclusive possession and granted a mandatory injunction for vacant possession, with liberty to evict the Defendant if he failed to comply within 30 days. Costs and interest were also awarded to the Plaintiff.
Court Disposition
judgment for the plaintiff
Orders
- Declaration that the Plaintiff is entitled to exclusive and un-impeached right of possession and occupation of Kahawa West House No. CC 22 Nairobi.
- Mandatory injunction directing the Defendant, his agents and/or servants to give vacant possession of Kahawa West House No. CC 22 Nairobi within 30 days; in default, the Plaintiff is at liberty to forcefully evict the Defendant.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL NO. 306 OF 2013
TERESIAH WANJIRU(Suing for and on behalf of
GIBSON REUBEN WAMWEA
by virtue of a Power of Attorney no. IP/A60107/1. ...................PLAINTIFF
VERSUS
CHRISTOPHER ONGECHI OMBATI...............................................DEFENDANT
JUDGMENT
The Plaintiff has sued the Defendant herein in her capacity as the Donee of a Power of Attorney no. IP/A60107/1. She claimed that at all material times to this suit, Gibson Reuben Wamwea (her husband) was and still is the owner of Kahawa West Estate House No. CC 22 Nairobi through an allocation of Kahawa West Tenant Purchase Housing Scheme allocated vide the letter dated 30th January, 1985. That pursuant to a formal understanding between her husband and the Defendant, the Defendant rented the suit property on a monthly payment basis. That since her husband relocated abroad, the Defendant has been defiant in rent payment and has refused to give vacant possession of the property. She claimed that due to the aforesaid reason she has suffered loss and damage since she has been deprived of use and possession of the property. Due to the aforegoing, the Plaintiff sought the following orders:-
A declaration that the Plaintiff is entitled to exclusive and un-impeached right of possession and occupation of the suit premises being Kahawa West House No. CC 22 Nairobi.
An order for permanent mandatory injunction directed to the Defendant his agents and/or servants to give vacant possession of Kahawa West House No. CC 22 Nairobi.
Costs of this suit.
Any further relief that this court may deem fit and just to grant.
Despite being served, the Defendant neither entered appearance nor filed a defence and interlocutory judgment was entered against him on 15th January, 2015. This matter then proceeded for formal proof. Gibson Reuben Wamwea (PW1) confirmed that he had given her wife Teresia Wanjiru Wamwea power of attorney and stated that he was comfortable with her wife prosecuting this matter. Teresia Wanjiru Wamwea (PW2) essentially reiterated her averments in the plaint in her testimony.
As earlier mentioned in this judgment, the Defendant neither entered appearance nor filed a defence. The Plaintiff's case therefore remains uncontroverted. The plaintiff produced a certified copy of allocation letter dated 30th January, 1985 and copies of rate bills paid to City Council of Nairobi by her husband. I see no reason why the Plaintiffs' case for vacant possession should not succeed. I also give costs of the suit and interest.
In the end judgment is entered in favour of the Plaintiffs and against the Defendant in the following terms:-
I declare that the Plaintiff is entitled to exclusive and un-impeached right of possession and occupation of the suit premises being Kahawa West House No. CC 22 Nairobi.
A mandatory injunction directed to the Defendant his agents and/or servants to give vacant possession of Kahawa West House No. CC 22 Nairobi, within 30 days. In default the plaintiff to be at liberty to forcefully evict the defendant
Before executing (b) above, the Plaintiff should serve the Defendant and then appear before this court on 29. 6.2015 to show proof of compliance of the directive on service by a competent court process server.
Costs of the suits plus interest to the Plaintiff.
Dated, Signed and Delivered in open court this 22nd day of May, 2015.
J. K. SERGON
JUDGE
In the presence of:
........................................... for the Plaintiffs
........................................... for the Defendants