https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12751

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MIGORI** **HCCCOMM NO. E002 OF 2025** **BUSIA SUGAR INDUSTRIES LIMITED……………………...……….…..1ST PLAINTIFF** **SOUTH NYANZA SUGAR COMPANY LIMITED………………….… 2ND PLAINTIFF** **VERSUS** **MICHEAL ODHIAMBO LIGAWA……..……………………….…….1ST DEFENDANT** **SILPA ATIENO OTIENO……………………………………….…….2ND DEFENDANT** **JOSEPH OYIER MBOGO……………………………………….…... 3RD DEFENDANT** **JULIUS OD. OWII…………………………………………………... 4TH DEFENDANT** **TOM O DIANGA……………………………………….................. 5TH DEFENDANT** **HEZON ABONYO AWINO…………………………………….…..6TH DEFENDANT** **GRACE M. OWINO………………………………………………... 7TH DEFENDANT** **JOSEPH A. MBOKTA………………………………………..……… 8TH DEFENDANT** **SAMWEL LESHAN KIPTANUI……………………………….…….. 9TH DEFENDANT** **KENNEDY O. AJUOGA………………………………………..….. 10TH DEFENDANT** **PLUS** **6,247 OTHER DEFENDANTS AS PER THE SCHEDULE ATTACHED HERETO.** **AND** **KENYA SUGAR BOARD………………………………...…….1ST INTERESTED PARTY** **MINISTRY OF AGRICULTURE &** **LIVESTOCK DEVELOPMENT………………………………..2ND INTERESTED PARTY** **THE NATIONAL TREASURY &** **ECONOMIC PLANNING……………………………….....3RD INTERESTED PARTY** **THE TRANSTION COMMITTEE SOUTH NYANZA** **SUGAR COMPANY LIMITED………………………………4TH INTERESTED PARTY** **RULING** Before the court is a motion dated **26th May 2025** seeking for orders that: 1. Spent 2. Spent 3. The Hon Court be pleased to issue temporary orders restraining the Defendants and their agent, employees, advocates, auctioneers or any other persons acting on their instructions from proceeding with execution, attachment, sale or enforcement of any decree or judgement against South Nyanza sugar Company Limited (Sony Sugar) in respect of any civil suit filed, pending or concluded before any court or tribunal pending the hearing and determination of this Application. 4. The Honourable court be pleased to issue an interim freezing order against any enforcement of decrees, awards or judgements affecting the assets, land or operations of south Nyanza Sugar Company Limited pending hearing and determination of this Application. 5. Pending the hearing and determination of this suit, a temporary order of injunction be issued suspending all on going and intended executions or enforcement proceedings relating to the South Nyanza Sugar Company Limited, across all courts or tribunals in Kenya. 6. This Honourable court be pleased to issue such further or orders as it may deem just and expedient in the circumstances. 7. Cost of this application be in the course. The Motion was accompanied by affidavit sworn by one Ali Ahmed Tiab in his capacity as the Managing Director of the Applicants herein. The said affidavit was neither commissioned nor signed. The respondents filed a replying affidavit sworn on the **6th August 2025** while the 2nd, 3rd and 4th interested parties filed replying affidavit sworn on the **24th December 2025**. Interim orders were granted and the same discharged on **11th January 2026.** Directions were taken and parties filed their respective submissions. **The main issue for determination is whether the application meets the threshold for grant of interim and injunctive conservatory orders.** Before delving in this issue, the court notes that the affidavit in support of the motion was never signed nor commissioned. An affidavit constitutes evidence upon which interlocutory applications are determined. It must comply with the mandatory legal requirements governing the commissioning and execution of affidavits. A fundamental requirement is that the affidavit must be signed by the deponent before it is commissioned. An unsigned affidavit is incurably defective as it cannot be attributed to its purported maker and, consequently, has no evidential value. Such a document cannot be relied upon by the Court in determining an application. In the present case, the affidavit filed in support of the application bears no signature of the deponent. The omission is not a mere procedural irregularity capable of being cured by the overriding objective or the Court's discretionary powers. Rather, it goes to the validity of the affidavit itself. The Court therefore finds that there is no competent supporting affidavit on record. Even assuming, for argument's sake, that the Court were to overlook the foregoing defect, the application would still face an insurmountable hurdle. The Applicant has not annexed any documents whatsoever in support of the factual averments made. There are no copies of the alleged government directive, lease agreement, Cabinet Decision, Gazette Notice by the Cabinet Secretary, official hand over report, evidence demonstrating the terms upon allocation of liabilities between the parties. and the total indebtedness of the plaintiff or any other documentary material capable of demonstrating the existence of the rights asserted or the threatened violation thereof. The grant of an interlocutory injunction is an equitable and discretionary remedy. The Applicant bears the burden of establishing a prima facie case with a probability of success, demonstrating that irreparable harm would result if the injunction is withheld, and, where appropriate, showing that the balance of convenience tilts in his or her favour. These principles are well settled and require evidentiary support. In the absence of a valid supporting affidavit and in the absence of any documentary evidence, there is no material upon which this Court can assess whether the Applicant has established a prima facie case or satisfied the other requirements for the grant of an interlocutory injunction. The Court cannot issue injunctive relief on the basis of unsupported evidence. Grant of rant interlocutory injunctions is discretionary in nature and the courts must exercise it cautiously, bearing in mind that such orders may substantially affect the rights of parties before the suit is finally determined. An applicant seeking such relief must therefore place before the Court credible and admissible evidence upon which the Court may properly exercise its discretion. Having carefully considered the application, the Court finds that it is fatally defective for want of a competent supporting affidavit. Further, the application is wholly unsupported by documentary evidence. Consequently, the Applicant has failed to discharge the burden necessary to warrant the grant of the orders sought. Accordingly, the Notice of Motion is hereby struck with cost to the Respondents. It is so ordered. **Ruling read, signed and delivered virtually at Migori this 9th day of July, 2026.** **HON. ANNE ONGI’NJO** **JUDGE** **Delivered in the presence of:**