[2023] KEHC 24997 (KLR)

Easthal Logistics Limited v Lasuba Logistics Limited & 2 others (Civil Case 77 of 2023) [2023] KEHC 24997 (KLR) (6 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24997 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Case 77 of 2023

DKN Magare, J

November 6, 2023

Between

Easthal Logistics Limited

Plaintiff

and

Lasuba Logistics Limited

1st Defendant

Victor Olingo Odhiambo

2nd Defendant

Buri Transporters Limited

3rd Defendant

Ruling

1. This is a ruling in respect of an application dated 22/9/2023. The same is in respect of transport of 45 tractors to South Sudan, in 15 containers belonging to Maersk (K) Ltd. The Plaintiff stated that they are losing US $75 per container per day for the said containers that is US $1125 per day translating to Kshs. 165,750 at today’s exchange rate.

2. The orders sought were: -a.Spentb.Spentc.That pending the hearing and determination of this suit filed herein the honorable court be pleased to grant mandatory injunction directing the defendants by themselves, their agents, servants, employees and representatives to release the fifteen (1) empty containers belonging to the Maersk (K) Limited to the plaintiff.d.N/A.e.Costs.

3. This is based on the fact that Temesgen Trading Co. Ltd. imported 45 Tractors. Massey Ferguson Tractors from Pakistan for clearance to South Sudan. The 1st and 2nd Defendants instructed the Plaintiff to clear the goods, which Maersk Ltd issued clearance for the containers to be returned by 10/2/2023. The consignment was for South Sudan, Juba.

4. The 3rd defendant left with the containers to Juba on 25/1/2023 but has not been returned. There is loss of income for non-return. The Plaintiff appears frustrated that the 3rd defendant is holding their goods without any reasonable cause. The result was that the plaintiff was blacklisted by Maersk (K) Limited and had to use Zula Global company to handle its customers.

5. The 3rd Defendant denies having any a contract with the plaintiff. They stated that they are not liable for non-return. However, they do not explain where the containers are. This is a classic evasive defence, the Court of Appeal had in mind in the case of in Raghbir Singh Chatte v National Bank of Kenya Limited [1996] eKLR, the Court of Appeal stated thus:“When a party in any pleading denied an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum, or any part thereof, or else set out how much he received. And so, when a matter of fact is alleged with divers circumstances, it shall not be sufficient to deny it as alleged along those circumstances, but fair and substantial answer must be given.”……First of all a mere denial is not a sufficient defence in this type of case there must be some reason why the defendant does not owe the money. Either there was no contract or it was not carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore simply to deny liability without some reason given.”

6. The 3rd Respondent confirmed that that they had a transport agreement with an agreement with Lasuba Logistic Compare Ltd. They admitted that the 45 tractors were taken to Nimule Border point but there was a sudden change for South Sudanese Customs.

Analysis 7. This case is fairly straight forward. There are only two issues, that is: -a.Whether an interlocutory mandatory orders ought to be issued.b.What remedies are available

8. On interlocutory mandatory injunction they rely on Showind Industries Ltd v Guardian Bank Ltd & another [2002] eKLR, justice A Ringera, as he was then, stated as doth: -“As I understand the law, an interlocutory mandatory injunction is granted very sparingly and only in exceptional circumstances such as where the applicant’s case is very strong and straight forward. Moreover, as the remedy is an equitable one, it may be denied where it would be inequitable to grant the relief for the reason, for example, that the applicant’s conduct does not meet the approval of a court of equity or his equity has been defeated by laches. I will determine this application on the basis of the above broad principles.”

9. They state that they have a prima facie case. The rely on Mrao Ltd v First American Bank of Kenya Ltd& 2 others [2003] eKLR, where the court of Appeal, Bosire & O’Kubasu JJ A, as then they were, stated as doth: -“So what is a prima facie case? I would say that in civil cases it is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

10. Respondent relied on the case of Rafique Ebrahim v William Ochanda Onguru t/a Ochanda Onguru & Co. Advocates [2020] eKLR. I do not know what the case was supposed to state as there is nothing in the submissions about it. I have also read the decision but cannot get the point the point the Applicant was making. The idea of throwing multiple authorities to the court in a vain hope that the courts will have no time to read them, is neither advisable nor encouraged. This is our day and night job. We have no other work other than read. We will read. The court is not supposed to use conjecture surmises and hyperbole to know the intention of the parties.

11. The transporter refused to complete the journey unless paid detention charges.

12. The Applicant stated that there is no basis for holding the containers as they do not belong to the consignee.

13. The parties filed submission in the matter. The Plaintiff submitted that the goods were delivered to Nimule not in Elegu where they were to be transported. The 3rd defendant failed to return the goods. The goods have accumulated Kshs. 16,425,000/= which still continues.

14. The first issue is whether the Applicant is entitled to an order of mandatory injunction at the interlocutory stage. The order of that nature is given sparingly. Even where a party satisfies the criteria for grant the court can still exercise its discretion and decline. In the case of Joseph Kaloki t/a Royal Family Assembly v Nancy Atieno Ouma [2020] eKLR, the court of Appeal, was of the considered view that; -“As this Court stated in Kenya Breweries Limited & another vs. Washington O. Okeyo [2002] eKLR a mandatory injunction can be granted on an interlocutory applications as well as at the hearing but should not normally be granted in the absence of special circumstances but that if a case is clear and which the court thinks it ought to be decided at once, a mandatory injunction will be granted at an interlocutory application.

15. In the case of referred above, Kenya Breweries Ltd & Another v Washington O. Okeya [2002] eKLR, the Court of Appeal stated as doth: -“A mandatory injunction ought not to be granted on an interlocutory application in the absence or special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the Applicant. Moreover, before granting a mandatory interlocutory injunction, the court had to feel a higher degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.”

16. There is reluctance on part of the court to issue a mandatory injunction on part of the courts. This is because, it has neither seen nor heard witnesses. A case that appears prima facie strong can crumble on the table of cross examination. In other words, unless the sky is falling, the court should have circumspection when issuing interlocutory injunction.

17. The Court of Appeal in the case of stated in Shariff Abdi Hassan v Nadhif Jama Adan [2006] eKLR restated the position on mandatory injunction as follows: -“The courts have been reluctant to grant mandatory injunction at the interlocutory stage. However, where it is prima facie established as per the standards spelt out in law as stated above that the party against whom the mandatory injunction is sought is on the wrong, the courts have taken action to ensure that justice is meted out without the need to wait for full hearing of the entire case.”

18. The difference between the prohibitory injunction and mandatory injunction is that mandatory injunction places a positive duty, which ends up changing the status quo ante. This is done before hearing of witnesses. In the case of Kenya Power & Lighting Co. Ltd v Samwel Mandere Ogeto [2017] eKLR, the high court sitting at Kisii, stated as doth:“20. A mandatory injunction is different from a prohibitory injunction in the sense that while an in prohibitory injunction the applicant must, as was stated in the celebrated case of Giella v Cassman Brown & Co. Ltd [1973] EA 358, establish the existence of a prima facie case with high chances of success, and that he will suffer irreparable loss/damage which cannot be adequately compensated by an award of damages if the injunction is not granted, and further that the balance of convenience tilts in his favor, an applicant in a mandatory injunction must, in addition, establish the existence of special circumstances. Furthermore, an applicant for mandatory injunction must prove his case on a standard higher than the standard in prohibitory injunctions.”

19. In the case of Nation Media Group & 2 Others v John HarunMwau [2014] eKLR, the court of appeal said: -“It is trite law that for an interlocutory mandatory injunction to issue, an applicant must demonstrate existence of special circumstances… A different standard higher than that in prohibitory injunction is required before an interlocutory mandatory injunction is granted. Besides existence of exceptional and special circumstances must be demonstrate as we have stated a temporary injunction can only be granted in exceptional and in the clearest of cases.”

20. In the case of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR the Court of Appeal was of the view that these tests are sequential. The Court stated: -a.“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;1. establish his case only at a prima facie level,2. demonstrate irreparable injury if a temporary injunction is not granted, and3. allay any doubts as to (b) by showing that the balance of convenience is in his favour.b.These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd v Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable.c.In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.”

21. In this case two issues stand out. The money withdrawn by the 1st Respondent is humongous. Nothing is said of any criminality on his part. The issues complained of took place in 2020. This suit was filed 3 years later, under some kind of urgency. There is more than meets the eye. I do not think that a stranger will walk into your account, withdraw 10/= leave alone 114million, and the only interest you have is 3 million remaining. I have a nice feeling that the full drama is yet to unfold. I recall the lamentations by justice Madan about lies. He stated as doth: -

22. I do not find that there are special circumstances for grant of a mandatory interlocutory injunction.

23. It is their case that a prima facie case claim has been proved. They state that the response that the 3rd defendant are strangers does not answer the application.

24. They rely on the case of Joseph Kaluki T/A Royal Family Assembly v Nancy Atieno Ouma [2020] eKLR, where the Court of Appeal reiterated its decisions in Kenya Breweries Limited & another v Washington O. Okeyo [2002] eKLR, where they stated as doth: -“The test whether to grant a mandatory injunction or not is correctly stated in Vol. 24 Halsbury’s Laws of England 4th Edn. para 948 which reads:“A mandatory injunction can be granted on an interlocutory application as well as at the heari ng, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff …….. a mandatory injunction will be granted on an interlocutory application”.Also in Locabail International Finance Ltd. V. Agroexport and others [1986] 1 ALL ER 901 at pg. 901 it was stated:- “A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction wa s directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance t hat at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.”

25. They Placed reliance on Shariff Abdi Hassan v Nadhif Jama Adan [2006] eKLR where the Court stated:“The third prayer is plainly seeking mandatory injunction as well. The law as regards the principle to be applied when considering the two prayers is different from the principles set out in Giela’s case for the standard of approach when considering whether or not to grant mandatory injunction is higher than that in respect of prohibitory injunction. The case of LOCABAIL INTERNATIONAL FINANCE LTD V. AGRO-EXPORT AND ANOTHER [1986] 1 ALL ER 901 sets out the principles applicable in cases of mandatory injunction. It states as follows:“A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could easily be remedied or where the defendant had attempted to steal a match on the plaintiff. Moreover, before granting a mandatory injunction the court had to feel a high sense of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.”

26. They state that though the tests in Giella vs Cassman Brown is different from the mandatory injunction. (for one, as set out in the case of Kenya Breweries (supra), they have met the same. They rely on Vol. 24 Halsbury’s Laws of England paragraph 948. They pray that the orders be issued.

27. The 3rd Respondent filed submission rely on Giella vs Cassman Brown (1913) EA 358. They lay out the 3 test of: -a.Prima facie caseb.Irreparable damagesc.Balance of convenience

28. They state that the Plaintiff has not meet the 3 tests. They state that they have no contractual obligation and relationship with the Plaintiff. They also state that the 3rd Defendant is a stranger of to the application.

29. They rely on the case of Kamau Mucuha v Ripples Ltd [1993] eKLR,( Hancox CJ, Kwach & Cockar JJ A) where Hancox JA, as then he was stated: -“Speaking for myself, I entirely agree that, historically, the principles laid down with regard to temporary mandatory injunctions are that they will only be granted exceptionally and in the clearest cases. In Canadian Pacific Railway v Gaud [1949] 2KB, Cohln LJ said at page 249:“I entirely agree………………………….. that the granting of a mandatory injunction on interlocutory relief is a very exceptional form of relief to grant, but it can be granted.”The reason for the rule is plain. Megarry J put it succinctly in a subsequent passage in the Shepherd Homes case as follows:“ …… .... if a mandatory injunction is granted on motion, there will normally be no question of granting a further mandatory injunction at the trial; what is done is done and the plaintiff has, on motion, obtained once and for all the demolition or destruction that he seeks. Where an injunction is prohibitory, however, there will often still be a question at the trial whether the injunction should be dissolved or contained.”

30. They state that they have no contractual a relation and as such the court cannot bond them. They rely on Agricultural Finance Corporation v Lengetia Limited & Jack Mwangi [1985] eKLR, where the court of Appeal stated as doth: -To put it another way, what was the consideration moving from the first respondent to the AFC in return for its promise to pay? As it stated in Halsbury’s Laws of England, 3rd Edition, Volume 8 at paragraph 110:“As a general rule a contract affects only the parties to it, and cannot be enforced by or against a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. The fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue upon the contract.”

31. They also relied on the case of Dunlop Pneumatic Tyre Co. Ltd v Selfridge & Co. Ltd [1915] AC 847, Lord Haldane, LC stated that,“my lords, in law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue on it.”

32. They stated that there has to be privity of contract for these orders to issue. it is their case that the Applicant has no case against them.

Analysis 33. In a nutshell, the 3rd defendants defence, is the trap that ensnared them. They have absolutely no contract with the plaintiff. However, they admit to be detaining the Plaintiff’s goods over some lien that is not related to the Applicant.

34. The test for grant of a mandatory injunction is that there must be special circumstances. In this case, a stranger who has neither legal not equitable claim is holding the Plaintiff’s goods for apparent nonpayment by a third party. they do not have tile to those goods. there is no possibility of a lien being created against goods owned by a person against whom they have no contract. The Applicant cannot rectify anything, in order to get their goods. the goods were last seen in the hands of the Respondents.

35. They admit having them. they have no reason for remaining with the empty containers. It is trespass to those goods. the applicant has no privity of contract and estate with the 3rd Defendant. Nevertheless, the 3rd defendant is holding their goods. This has gone on for almost 10 months. The 3rd defendant does not claim the goods. They are not claiming that the Plaintiff has not paid them. They have no legal right to hold the Plaintiffs goods. In Kenya Power & Lighting Co. Ltd v Samwel Mandere Ogeto [2017] eKLR, the Court stated as doth: -“In the case of Nation Media Group & 2 Others v John HarunMwau [2014] eKLR, the court of appeal said:“It is trite law that for an interlocutory mandatory injunction to issue, an applicant must demonstrate existence of special circumstances… A different standard higher than that in prohibitory injunction is required before an interlocutory mandatory injunction is granted. Besides existence of exceptional and special circumstances must be demonstrate as we have stated a temporary injunction can only be granted in exceptional and in the clearest of cases.”23. The above cited cases lay down the principles of law to be considered in an application for mandatory injunction and the condition that stands out is that the applicant must establish the existence of special and exceptional circumstances that warrant the granting of orders of mandatory injunction.

36. The exceptional circumstances of this case is that the 3rd Respondent admits to not have any legal interest on the empty containers. there is no lien held by either of the parties. Holding the containers does not add any value to the 3rd Respondent. I find and hold that the Applicant has proved that they are entitled to a mandatory injunction. I therefore issue the same.

Determination 37. In a nutshell, I direct as follows: -a. A mandatory order do issue directing the 3rd defendant to release to the Plaintiff 15 empty containers and transport them to Mombasa, within 14 days from the date hereof.b. In default of so returning the containers by 21/11/2023 the plaintiff be at liberty to execute against the 3rd defendant before judgment or a sum of Kshs. 16,500,000/= together with the value of the containers.c. The 3rd Defendant to pay the Plaintiff’s costs for the application.d. The matter be mentioned on 22/11/2023 to confirm compliance of issuance of a warrant and for pretrial6 conference.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 6TH DAY OF NOVEMBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Gisemba for 3rd RespondentMr. Otwere for the ApplicantNo appearance for 1st, 2nd RespondentCourt Assistant - Brian