[2005] KEHC 2415 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT

MILIMANI COMMERCIAL COURT, NAIROBI

Civil Case 566 of 2003

ALBERT GACHERU KIARIE

T/A WAMAITU PRODUCTIONS………………………….PLAINTIFF

-V E R S U S

SIMON MUIRURI KIREHU

T/A ONE STEP NDUTI MUSIC STORE……………….DEFENDANT

R U L I N G

This application is brought by way of a chamber summons dated 13th October,

2004 and filed in court on 19th October, 2004. It is expressed to be brought under the

inherent powers of the court and all enabling provisions of the law, and the applicant

seeks from the court the following orders-

1. That this matter be certified urgent and be heard ex parte in the first instance

2. That this honourable court be pleased to reinstate interim orders it issued in

favour of the plaintiff/applicant on 6th April, 2004 which technically expired when

the matter was stood over generally when it came up for hearing on 29th

September, 2004.

3. That the honourable court reaffirms its orders of direction of 4th May, 2004, that

the injunction application be heard inter parties on merits before the application

for consolidation of this suit with another.

4. That the honourable court be pleased to give the inter partes hearing date of the

injunction application and extend the interim order to that date.

5. That costs of this application be provided for

6. Any other orders or directions that the court may deem fit in the circumstances.

The application is based on the grounds-

(a) That on 6th April, 2004, this Honourable Court granted orders in favour of the

plaintiff/applicant against the defendant/respondent inter alia, restraining the

defendant/respondent, his servants and agents from reproducing and/or

allowing others to reproduce, distribute and/or allow others to stock, display

for sale and/or allow others to display for sale the CDs listed therein which are

marketed and distributed by ONE STOP NDUTI MUSIC STORE.

(b) That these interim orders technically expired when the matter was stood over

generally on 29th September, 2004, when it came up for hearing before the

court.

(c) That the applicant is likely to suffer irreparable loss and damage if these

orders are not reinstated and defeat the very purpose and intention they were

meant to serve.

(d) That the defence misled the court on 29th September, 2004, that it was its

application for consolidation of this suit with another which was coming for

hearing on that day while on 4th May, 2004, the court had given orders

directing that the injunction application be heard inter partes on merits before

the application for consolidation of the two suits.

(e) That it is in the interest of justice that court orders and directions are obeyed

to ensure that they serve the very purpose and intentions for which they are issued.

The application is also supported by the annexed affidavit of ALBERT GACHERU

KIARIE, the applicant himself.

In opposition to the application, the defendant/respondent has filed the following

grounds-

(i) The application is incurably defective in law and if the orders sought are

granted it will be contrary to the provisions of Order 39 Rule 3 (2) of the

Civil Procedure Rules.

(ii) It will be unjust to reinstate and/or extend old ex parte orders

(iii) The matter is res judicata Honourable Ibrahim J. having refused to extend

the subject ex parte orders on 6th October, 2004.

(iv) No reasons justifiable or otherwise are being advanced to show the

prejudice likely to be suffered if the expired orders are not reinstated.

(v) Third parties should be served with the current application

(vi) There is pending an application dated 28th April, 2004 for consolidation of

this suit with HCCC No.2072 of 2000

At the oral canvassing of this application, Mr. Kiarie, the plaintiff/applicant appeared

in person while the defendant/respondent was represented by Mr. Ng’ang’a. As order 1

was already spent, the applicant told the court that he would be urging prayers 2,3, 4, 5,

and 6. He then said that when this matter came for hearing on 29th September, 2004, it

was stood over generally and the interim orders which were in force were not extended

and therefore they expired on that day. The matter thereafter came before Ibrahim J. on

6th October, 2004 when the applicant applied for an extension of the orders but the

learned judge declined to do so on the ground that he didn’t wish to be involved in a file

from Milimani any longer. It was then that he filed this formal application on 19th

October, 2004. On 3rd November, the interim orders were reinstated to 9th December,

2004. Unfortunately the matter was not listed on that day. It was next fixed for hearing

on 20th December, 2004. On that day, the defendant/respondent was not ready to proceed

and the matter was stood over to 21st December, 2004.

The applicant then urged the court to re-visit the ruling made on 4th May, 2004

when the court ordered that the application for contempt would be heard first, followed

by the hearing inter partes of the application on which the interim orders given inter

partes are based and this would be followed by the hearing of the application for

consolidation.

Referring to the grounds of opposition, Mr. Kiarie submitted that ground 1 thereof

is taken care of by S.3A of the Civil Procedure Act under which the application is

brought and that Justice Ibrahim did not hear the application but left it for hearing before

any judge at Milimani. Even though the court granted leave to serve 3rd parties, such 3rd

parties are not parties to this suit. He urged the court to do justice in the matter.

In response, Mr. Ng’ang’a for the respondent submitted that the orders sought to

be reinstated have already expired. He referred to O.XXXIX Rule 3 (2) of the Civil

Procedure Rules which he further submitted prohibits an ex parte order from being

extended after 14 days except by consent of the parties. He then submitted that the

application for reinstatement was dismissed, and that the orders sought to be reinstated

expired long before 6th October, 2004. Counsel then suggested that the best the applicant

should do is to fix the main application for hearing. He also argued that on 28th

November, 2004, some third parties were joined to the suit and will be prejudiced if they

are not served and if the orders are reinstated. He therefore objected to the application

and requested that it be dismissed.

In a short reply, Mr. Kiarie said that it was not true that any third parties had been

joined. He also submitted that he had not filed many applications as alleged, but if he

had done so, it was quite lawful.

Having considered the rival submissions between both parties, it is common

ground that at one point in time, the plaintiff/applicant did indeed enjoy some interim

orders. These were first granted by the court ex parte on 6th April, 2004, pending the

inter partes hearing of the application on 20th April, 2004. The orders seem to have

travelled a hard and bumpy road, lapsing and being reinstated. The application before the

court right now seeks their reinstatement after lapsing on 29th September, 2004, when this

matter was stood over generally and the orders were not extended. Prior to that, they had

been reinstated on 6th August, 2004, after yet another lapse. The turbulent life of these

orders will be revisited shortly hereunder.

In his treatise on Civil Procedure, 13th edition, at pages 1512 to 1513, Mulla

observes that “it is only when a claim is made in a suit which, if established, would

entitle the plaintiff to relief by way of injunction that interim relief could be granted

by way of temporary injunction, so that relief in the suit might not be rendered

infractuous.” He further notes that “the real point, upon an application for a

temporary injunction, is not how the question ought to be decided at the hearing of

the case, but whether there is a substantial question to be investigated and whether

matters should not be preserved in status quo until that question can be disposed

of.” By granting the interim orders in the first place, I take it that the court found it

prudent to preserve the status quo pending the hearing of the injunction application inter

partes. Since the application has not yet been heard inter partes, I would further take it

that the reasons which prompted the court to grant the interim orders are still alive.

Unless such reasons have ceased to exist, and there is no evidence that they have so

ceased, I would find it proper and logical to reinstate the orders. I am fortified in this

view by the Ruling delivered in this matter by the Hon. Justice Ibrahim on 6th August,

2004, in a similar application for reinstatement of those orders. The learned judge

outlined the history of the orders, the subject matter of this application, in these words-

“On the 6th April, 2004 the application for temporary

injunction orders was heard by Justice Emukule ex parte.

The court granted the ex parte orders restraining the

respondent from carrying out various acts as particularised

in the said order. The orders were to be in force until the

hearing of the application inter partes on 20th April, 2004.

The application was not heard on 20th April, 2004 and it was

extended by consent or at the court’s instance from time to

time until 22. 6.04 During the said intervening period, the

applicant prosecuted an application to commit to civil jail

the respondent for contempt of court. I reserved the ruling

to 9th July, 2004, and extended the interim orders. On 9th

July, 2004, the court did not sit if I can recall. At the very

least, the ruling was not delivered. It was delivered on 23rd

July, 2004. As a result the interim orders were not

extended.

I am of the view that the omission or failure to extend

the interim orders was on the court’s part and the applicant

should not be disentitled to the benefit of the interim orders.

I have no doubt the court has the power and authority to

extend and/or reinstate the said order to the next hearing

date. To do otherwise would be improper and unjust to the

applicant particularly considering the effect of my ruling on

the application for contempt. I do hereby reinstate the

interim orders granted on 6th April, 2004 and extended from

time to time and shall remain in force until the inter partes

hearing of the injunction application. This shall be on 29th

September, 2004 before ANY JUDGE.”

I wish to adopt the learned judge’s reasoning in toto. The court saw it fit, from the very

beginning, to grant those interim orders pending the hearing of the injunction application

inter partes. That application has not yet been heard. The hearing is still pending. The

rationale for granting those orders therefore remains as valid today as it was on 6th April,

2004. It is in the interest of justice that they be reinstated.

Counsel for the respondent argued that this matter is res judicata as Justice

Ibrahim dismissed an earlier application for reinstatement on 6th October, 2004. With

respect, that is not the correct position. The true position is as postulated by the

applicant, which is to say that the court declined to consider the issue of the subject ex

parte orders. After dismissing an application for committing the respondent to civil jail

for contempt, the learned judge said-

“I hereby direct that any further applications be heard by any

judge in the Commercial Court. The said court is capable of

interpreting and enforcing any court order herein.”

Against that background, it can hardly be said that the matter is res judicata. The judge

left the matter to the rest of us in the Commercial Division to interpret the court orders

herein. And that is what I have humbly attempted to do.

For the totality of the foregoing-

1. I hereby reinstate the interim orders granted to the applicant on 6th April,

2004, in terms of prayer No.2 of the application.

2. I also re affirm the court’s orders of direction of 4th May, 2004 and order that

the injunction application be heard inter partes before the consolidation of this

suit with another

3. I further order that the said application be heard on 8th February, 2005. The

interim orders are extended to that date.

4. Each party will bear its costs of this application.

Dated and delivered at Nairobi this 27th day of January 2005

L. NJAGI

JUDGE