Cementers Limited v Mihrab Development Limited [2025] KEELC 6348 (KLR)

Cementers Limited v Mihrab Development Limited (Environment and Land Case E173 of 2023) [2025] KEELC 6348 (KLR) (23 January 2025) (Ruling) Neutral citation: [2025] KEELC 6348 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E173 of 2023 J Omange, J January 23, 2025 Between Cementers Limited Plaintiff and Mihrab Development Limited Defendant Ruling 1. In the Notice of Motion of application dated 15 th November 2024 the Plaintiff prays for the following orders; a. That this Honourable Court be pleased to certify this Application as urgent and dispense with the service of the same upon the Respondent in the first instance. b. That pending the inter partes hearing of this application this Honourable Court be pleased to issue a Prohibition order restraining the Defendant by its directors, employees, servants agents or any other person whomsoever from advertising to sell, selling transferring, charging, further charging, leasing, alienating, possessing, renting or registering any further dealings on LR No. NAIROBI BLOCK 19/145 (previously known as LR No. 1/1339 before conversion) and the developments thereon. c. That pending the hearing and determination of this application, this Honourable Court be pleased to issue a Prohibition Order restraining the Defendant by its directors, employees, servants, agents or any other person whosever

from advertising to sell, selling, transferring, charging further charging, leasesing, alienating, possessing, renting or registering any further dealings on LR.No. Nairobi Block 19/145 (previously known as LR. No. 1/1339 before conversion) and the developments thereon. d. That pending the hearing and determination of this suit, this Honourable Court be pleased to issue a prohibition Order restraining the Defendant by its directors, employees, servants, agents or any other person whomsoever from advertising to sell, selling transferring, charging, further charging, leasing alienating, possessing, renting or registering any further dealings on LR No. Nairobi Block 19/145 (previously known as LR No.1/1339 before conversation and the developments thereon. e. That this Honourable Court be pleased to make such other or further orders as the circumstances of this case may require. f. That the costs of this application be provided for.

2. The plaintiffs claim is brought on grounds that the Plaintiffs and the Defendants entered into a contract for the Plaintiff to construct an office building on LR NAIROBI/ BLOCK 19/145 previously LR 1/ 1339 along Lenana Road. The Plaintiff contends vide its Director Dipak Hilal that the Defendant contracted it to construct the office building. They carried out the assignment successfully.

3. They contend that the Defendant failed to fulfills its obligations under the contract as it did not pay certificate number 35 and 37 which remain unpaid to date. The Plaintiff contends that it is owed Kshs. 595,153,163.91. This has seriously affected its operations. The Plaintiff urges the court to issue a prohibitory order restraining any dealings on the suit property.

4. Under order 40 there is no specific reference to prohibitions order, however given that the injunction seeks to preserve the suit property, I will be guided by the principles for grant of an injunction which are well settled. The law on grant of interlocutory injunctions is set out under Order 40 Rule 1 (a) and (b) of the Civil Procedure Rules as follows: “ Where in any suit it is proved by affidavit or otherwise – a. That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or b. That the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff will or may be obstructed or delayed in execution of any decree that may be passed against the defendant in the suit; the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.” 5. The principles for grant of injunction are well settled by the locus classicus of Giella Vs Cassman Brown & Company Limited [1973] E.A. 358., where the court stated thus: “ First, an applicant must show a prima facie case with a

probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 6. This court is thus required to determine whether the applicant has satisfied the three conditions for grant of injunction. In Nguruman Limited Vs Jan Bonde Nielsen & 2 the Court of Appeal had this to say on prima facie case ; “ The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion” 7. Considering the provisions of Order 40 Rule 1(b) and the principles cited above, the Plaintiff needs to establish that he has a clear and unmistakable right to be protected. Secondly that damages would not be an adequate remedy and lastly on a balance of convenience.

8. The Plaintiffs averments that he is owed by the Defendant have not been controverted hence it is evident he has a claim and a right to be protected. The application is then considered in light of the second requirement. On this aspect the pertinent question is whether damages would not compensate the Plaintiff and closely related to this whether it has been proved the Defendant would not be able to satisfy the decree.

9. The Plaintiffs claim is for a specific sum that he is owed. An award of damages would thus compensate any loss that has been suffered by the delay in payment. The Plaintiff did not adduce any evidence to demonstrate that the Defendant would not be in a position to satisfy any decree. Neither was the court told the value of the property vis a vis what is owed. It was also not clear if there are third parties if any who would be affected by such a prohibitory order. As such the balance of convenience tilts against issuance of the injunction.

10. In the end I find that in view of the above, I cannot grant the orders sought. As such the application is dismissed with costs to abide the outcome of the main suit. RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS 23 RD DAY OF JANUARY 2025

JUDY OMANGE

JUDGE In the presence of: Mr. Njiru for Plaintiff N/A for Defendant Court Assistant Meryline