[2021] KECPT 541 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.292 OF 2020

ELIUD KARIUKI NJAGI........................................................................CLAIMANT

VERSUS

GAKUNDU FARMER’S CO-OPERATIVE SOCIETY............1ST RESPONDENT

QUICKLINE AUCTIONEERS..................................................2ND RESPONDENT

RULING

Vide the Application dated 14. 9.2020, the Respondent has moved this Tribunal seeking for Orders inter alia:

1. Spent;

2. That pending the hearing and determination of the Application interparties this Honorable court be pleased to issue a temporary injunction against the 1st and 2nd Respondents their agents, employees, servants or any one claiming through them restraining them from selling, advertising for sale, alienating or in any way dealing with the Claimant/Applicant’s Motor Vehicle Registration Number KBT 292M and Assorted Household goods or any other properties belonging to the Applicant thereof;

3. That pending the hearing and determination of the Application interparties this Honorable court be pleased to issue a permanent injunction against the 1st and 2nd Respondents their agents, employees, servants or any one claiming through them restraining them from selling, advertising for sale, alienating or in any way dealing with the Claimant/Applicant’s Motor vehicle registration Number KBT 292M and Assorted Household goods or any other properties belonging to the Applicant thereof;

4. That the 1st and 2nd Respondents by themselves, agents, servants, employees or any person claiming through them be ordered to upon receipt of this order return the Claimant/Applicant’s Motor Vehicle Registration Number KBT 292M and Assorted household goods attached on 11th September 2019 to the Claimant, until hearing and determination of this Application; and

5. That costs of this Application be awarded to the Claimant/Applicant.

The Application is supported by the grounds on its face and the following Affidavits:

a. Supporting Affidavit sworn by the Claimant on even dates(14. 9.2020) and

b. Further Affidavit sworn by the said Claimant on 30. 10. 2020.

The Respondents have opposed the Application vide the Replying Affidavit sworn by Maggie Shella Wawira James on 13. 10. 2020.

Vide the directions given on 23. 9.2020, the Application was canvassed by way of written submissions. The Claimant filed his submissions on 5. 11. 2020 while the Respondent did so on 11. 11. 2020.

Claimant’s Contention

It is the Claimant’s contention that the Respondents raided his home on the dawn of 11. 9.2020 accompanied by over 20 goons and took away his Motor Vehicle Registration Number KBT 292M and assorted household items and Kshs.35,000/= in cash.

That he does not understand the rationale behind the raid as he has never taken any loan from the 1st Respondent. That the Respondent’s actions are therefore illegal and should thus be restrained from selling and/or disposing of the already attached goods.

Respondent’s Case

The Respondent has opposed the Application on account of the fact that the Claimant owes it a crop advance of Kshs.955,573/= which he took from it on diverse dates between the year 2011-2014. That by then the claimant was its treasurer. That the said advances were to be recovered from coffee proceeds but when the Claimant left the management office, he stopped taking his coffee to 1st Respondent making it difficult for the 1st Respondent to recover the said advances.

That 1st Respondent summoned the Claimant to its offices to give a proposal on how he would repay the advances but he refused to honour the said summons.

That it is on this basis that the 1st Respondent enlisted the services of debt collectors to recover the said debt.

That on 11. 9.2020, the 2nd Respondent went to the Applicants home and attached the said motor vehicle and 3 seater sofaset and proceeded to issue Notification of Sale. That the said items are still in the possession of the 2nd Respondent. That the Claimant has not given any proposal on how he will repay the debt.

Issues for determination

We have framed the following issues for determination:

a. Whether the Claimant has established a proper basis to warrant the grant of an order of temporary injunction;

b. Who should meet the costs of the Application?

Temporary injunction

We have jurisdiction to make an order regarding temporary injunctions by dint of order 40 of the Civil Procedure Rules. Order 40 Rule 1 (a) provides thus:

“ 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 wrongly sold in execution of a decree, 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.

Before exercising the above jurisdiction, we are guided by the Principles enunciated by the court in the case of Giella – versus- Cassman Brown [1973] EA. They include:

(a) A prima facie case with a probability of success;

(b) Irreparable damage; and

(c) Balance of Convenience.

The court in the case of Mrao Limited versus first American Bank of Kenya Limited (2003) eKLR explained what Constitute a Prima Facie case in the following terms:

“.......A Prima Facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right and the probability of the Applicant’s case upon trial. It is a case 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 from the latter......”

Prima facie Case

From the foregoing exposition of the law, a question abound as to whether the Claimant has established existence of a legal right which has been trampled by the Respondent so as to call for an explanation.

What we gather is that the Claimant was advanced monies on the understanding that the same would be recovered from proceeds of coffee delivered to the 1st Respondent. That when the Claimant exited the management of the 1st Respondent, he stopped supplying coffee to it. That this then denied the 1st Respondent an opportunity to recover the advances. It is on this basis that the 1st Respondent enlisted the services of Debt collectors who attached goods the subject matter of these proceedings.

Whilst the 1st Respondent has narrated how it has gone ahead to recover the said debt, it has not explained the legal justification for using the route it adopted. Were the goods attached offered as security for repayment of the advances? We do not know. If they were not, then the 1st Respondent did not have any legal authority to instruct the 2nd Respondent to attach the Claimant’s property without a valid order or decree of the court.

Upon appreciation of the material before us, it is manifest that the 1st Respondent used cavalier means to recover the alleged advances where the 1st Respondent was required to do is to institute a legal action against the claimant for recovery of the said advances. This did not happen.

With the foregoing in mind, we find that the Claimant has established that he has a prima facie case with a probability of success.

Conclusion

The upshot of the foregoing is that we find merit in the Application and hereby allow it based on the following terms:

a. That 2nd Respondent is ordered to return to the Claimant the items/properties contained in its proclamation Notice dated 5. 6.2020 forthwith;

b. For avoidance of doubt the said goods comprise Motor Vehicle Registration No. KBT 292M;

c. That the Respondents are further restrained from proclaiming and attaching the Claimant’s goods on account of the debt the subject matter of the claim pending the hearing and determination of the claim;

d. The Respondents to meet the costs of the Application.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 4TH DAY OF MARCH, 2021.

Hon. B. Kimemia Chairperson Signed 4. 3.2021

Hon. J. Mwatsama Deputy Chairperson Signed 4. 3.2021

B. Akusala Member Signed 4. 3.2021

Miss Muthoni for Respondent

Mention for Pre-trial on 11. 3.2021 physical. Notice to issue.

Hon. B. Kimemia Chairperson Signed 4. 3.2021