[2012] KEHC 5014 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

CIVIL CASE NO. 8 OF 2012

CHARLES MUTHUNGU WAIRAGU………….......................………PLAINTIFF/APPLICANT

VERSUS

GEOFFREY WAMBUGU KAGUNDU..............…....................………………1st DEFENDANT

GATHUTHI TEA FACTORY CO. LTD.…….…....….................…………….2ND DEFENDANT

RULING

Charles Muthungu Wairagu, the plaintiff/applicant herein, took out the Motion dated 17th January 2012 in which he sought for the following orders:

(1)That this application be certified as urgent and be heard ex-parte in the first instance due to its urgency.

(2)The Honourable court be pleased to grant a temporary injunction barring the 1st and 2nd Defendant/respondents whether by themselves or through their servants/agents or any other person acting on behalf of the 2nd Defendant/respondent from 19th January, 2012, jointly or singly giving effect of the paragraph 5 (a) of the Notice of Annual General Meeting as contained in the Gathuthi Tea Factory Company Limited Annual Report and Financial Statements for the Year Ended 30th June, 2011, to the extent that it seeks to approve the name of Geoffrey Wambugu Kagondu as the bonafide director of Thegenge B Electoral area, pending the inter-partes hearing of this application.

(3)The Honourable court be pleased to grant a temporary injunction barring the 1st and 2nd Defendant/respondents whether by themselves or through their servants/agents or any other person acting on behalf of the 2nd Defendant/respondent from 19th January, 2012, jointly or singly giving effect of the paragraph 5 (a) of the Notice of Annual General Meeting as contained in the Gathuthi Tea Factory Company Limited Annual Report and financial Statements for the Year Ended 30th June, 2011, to the extent that it seeks to approve the name of Geoffrey Wambugu Kagondu as the bonafide director of Thegenge B Electoral area pending the hearing and determination of this suit.

(4)Cost of this application be provided for.

When the Motion came up for hearingexparte, Mr. Kimunya, learned advocate for the Plaintiff, sought to be given prayers 1 and 2 pending the hearinginterpartes of the Motion.

It is the submission of Mr. Kimunya that it is necessary to grant prayer 2 to restrain Gathuthi Tea Factory Co. Ltd., the 2nd Defendant herein, from holding its Annual General Meeting scheduled for 19th January 2012. The aim is to stop the 2nd Defendant from approving the re-election of Geoffrey Wambugu Kagondu, the 1st Defendant, as a director of Thegenge B. Electoral area while the Plaintiff desires to have the election results nullified on the basis that they were marred by fraud and irregularities. It is argued that unless the order is granted, the Plaintiff’s right to challenge the process will be defeated hence he will suffer irreparably.

I have carefully considered the material placed before this Court plus the oral submissions tendered by Mr. Kimunya, learned counsel for the Plaintiff. There is no doubt in my mind that the Motion is extremely urgent hence the same is certified as such. The issue which this Court must grapple with at thisexpartestage is whether or not it should grant a temporary order of injunction pending theinterparteshearing of the Motion. The principles for granting orders of injunction are well settled. (See Giella =Vs= Cassman Brown [1973] E.A. 358.

First, an applicant must show aprima faciecase with a probability of success. Secondly, an applicant must show that if the order is denied he would suffer irreparable loss. Thirdly, if the Court is in doubt it would decide the application on a balance of convenience. Let me apply the aforesaid principles to this Motion. The first question is whether the applicant has shown that he has aprima faciecase with a probability of success? From the material placed before me, the Applicant avers that he will be able to show at the interpartes stage that the 1st Defendant’s election was marred by irregularities which gave him an advantage over the Plaintiff. It is alleged that some bonafide growers were denied a chance to vote and that some voters voted by proxy using the cards of dead tea growers. In my view the aforesaid allegation is a very serious election irregularity which may lead to the nullification of the 1st Defendant’s election. In sum, I am convinced the Applicant has shown aprima faciecase with a probability of success hence the first principle is satisfied.

The second principle which must be satisfied is whether the Plaintiff has established that he would suffer irreparable loss if theexparteorder is denied. The Plaintiff has stated that his case will be rendered useless in that he will have lost the chance to challenge the 1st Defendant’s election. The Plaintiff’s intention is to challenge the 1st Defendant’s election as a director of Thegenge B Electoral area so that he can offer himself for election to take his chance. In essence the Plaintiff is saying that he will have lost a chance of being elected as a director. Can that loss be categorized an irreparable loss? In my view I do not think the anticipated damage can be regarded as irreparable. The same is quantifiable in monetary terms. In the case of Nicholas Mahihu =Vs= Ndima Tea Factory Ltd. & another Civil Application No. 101 of 2009 at page 3, (unreported) the Court of Appeal heldinteralia:

“On the second consideration on whether the intended appeal is likely to be rendered nugatory, we find that even without speculating as when the appeal might be fully determined, or the hearing in the superior court finalized, we find that the intended appeal would not be rendered nugatory as the applicant can still be compensated in damages. Thus the loss if any, could still be quantified in terms of the lost earnings as a director of the 1st Respondent company. Our finding on this is that the applicant has not satisfied the second principle, as to trigger the exercise of our jurisdiction.”

It is obvious that the Plaintiff’s suit cannot be rendered useless. The loss the Plaintiff may suffer as a result of the denial of the order for injunction can be calculated in monetary terms. He has therefore failed to establish the second principle. Since I am not in doubt, I do not intend to belabour myself in considering the principle of convenience. In the end I am unable to grant the Applicant the order soughtexparte. The same is denied but may be sought during the interpartes hearing of the Motion. The Motion to be fixed for interpartes hearing by the registry on priority basis.

Dated and delivered at Nyeri this 18th day of January 2012.

J. K. SERGON

JUDGE

In open court in the presence of Mr. Kimunya for the Plaintiff/Applicant.