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ELCDismissedNot stated in the judgment (notice of motion filed 26/8/2014)· [2014] KEELC 101 (KLR)

Joyce Nafula Kisache (Kisaje) v Japhet Kisaje Khisa & 2 others [2014] KEELC 101 (KLR)

High Court of Kenya
29 October 2014
EOE. Obaga
1,267 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kitale High Court refused to immediately reinstate a wife evicted from rented rooms, ruling that mandatory injunctions require strong, clear evidence at an early stage.

What this practically means

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Executive summary

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The applicant, first wife of the first respondent, applied by notice of motion dated 26/8/2014 for a mandatory injunction compelling the first and third respondents to reinstate her into a room on Plot B 10, Makutano, and to return her goods after her eviction. She contended that Plots B 10 and B 11 were acquired during her marriage, that the first respondent transferred Plot B 10 to the second respondent (his second wife) who sold it to the third respondent without her consent, and that the eviction left her homeless on the streets of Makutano. The first respondent opposed, asserting the applicant was living at the matrimonial home at Kapsara and earning from tea farming, as evidenced by a KTDA advice slip. The court framed a single issue: whether the application met the threshold for a mandatory injunction. Applying Locabail International Finance Ltd v Agro-Export as adopted by the Court of Appeal in Shariff Abdi Hassan v Nadhif Jama Adan, the court held that a mandatory injunction requires special circumstances and a high sense of assurance that it would be vindicated at trial. The applicant offered no evidence of when the properties were acquired or when the second respondent entered the marriage; her claim under section 17 of the Matrimonial Property Act was not a simple matter suitable for summary remedy; and the eviction was carried out by the third respondent as purchaser in possession, entitled to remove non-paying occupants. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether a mandatory injunction should issue at interlocutory stage

Holding

The application failed; the applicant did not offer evidence to give the court the required assurance that a mandatory injunction would be justified at trial

Reasoning

The court applied the Locabail principles as adopted by the Court of Appeal in Shariff Abdi Hassan v Nadhif Jama Adan. Mandatory injunctions require special circumstances and clear cases. Here there was no evidence of when the plots were acquired or when the second respondent entered the marriage; the claim under section 17 of the Matrimonial Property Act was not a simple matter for summary remedy; and the eviction was effected by the third respondent as purchaser in possession, who was entitled to remove non-paying occupants.

p. 2

Legal principles established

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  • A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and only in clear cases; the court must feel a high sense of assurance that at trial the injunction would appear rightly granted - a higher standard than for a prohibitory injunction

Court orders

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  1. 1.The applicant's notice of motion seeking a mandatory injunction is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Inherent jurisdiction of the High Court to grant interlocutory injunctions (application for mandatory injunction at interlocutory stage)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joyce Nafula Kisache (Kisaje) v Japhet Kisaje Khisa & 2 others [2014] KEELC 101 (KLR)", Case Analysis (2014). Not stated in the judgment (notice of motion filed 26/8/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/101/eng@2014-10-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.