Rosaita Mbithe Kyale v Jackson Kiilu Mutisya [2016] KEHC 6258 (KLR)

Facts

The Applicant, Rosaita Mbithe Kyale, is the petitioner in a succession cause and has been granted a letter of administration intestate over the estate of the deceased Julius Kyale Kyungu. The Respondent, Jackson Kiilu Mutisya, filed citation proceedings against the Applicant and Justina Waeni Kyale in Machakos H.C.S.C. No. 351/2014, alleging he had entered into an agreement with Justina Waeni Kyale for the sale of a parcel of land known as title no. ATHI RIVER/ATHI RIVER BLOCK 5/133. The Respondent took possession of the land and constructed a permanent stone house on it.

Issues

1. Whether the mandatory injunction orders sought by the Applicant are available under the Law of Succession Act and Probate and Administration Rules.
2. Whether the Respondent's possession and construction on the land are in violation of the agreement and the law.

Reasoning

The Court of Appeal in Kenya Breweries Ltd and Another v Washington Okeyo (2002) 1 E.A. 109 established that special circumstances must be shown over and above the establishment of a prima facie case for a mandatory injunction to issue.

Outcome

The Respondent's possession and construction on the land are declared null and void, and the Respondent is directed to demolish all the houses and structures erected on the land and vacate within 30 days or any other specified period deemed fit by the court. The Respondent is also directed to surrender the original title deed for land title no. ATHI RIVER/ATHI RIVER BLOCK 5/133 to the Petitioner unconditionally within 30 days.

Authorities cited