[2008] KECA 286 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

CIVIL APPLI NO. 324 OF 2007 (UR 224/2007)

EPHRAHIM MBAE THURANIRA

SARAH KATHURE (ON BEHALF OF HER OWN AND THAT OF

THE ESTATE OF JOHN M’RIMBERIA (DECEASED)

WINFRED MAIGENE STEPHEN ………..……… APPLICANTS

AND

GILBERT KABEERE MBIJIWE

JOCET AUCTIONEERS

COUNTY COUNCIL OF MERU ………….…... RESPONDENTS

(Application for injunction pending hearing and determination of an intended appeal from a Ruling and Order of the High Court of Kenya at Nairobi (Lenaola J.) dated 23rd October, 2007

In

H.C.C.C. NO. 15 OF 2003)

*******************

RULING OF THE COURT

The three applicants EPHRAHIM MBAE THURANIRA, SARAH KATHURE and WINFRED MAIGENE STEPHEN were the plaintiffs in a suit which was commenced in the superior court at Meru to wit CIVIL CASE NO. 15 OF 2003, in which the respondents herein, Gilbert Kabeere Mbijiwe, Jocet Auctioneers and County Council of Meru were named the defendants. An affidavit pursuant to the provisions of order VII rule 1 (2) of the Civil Procedure Rules was filed by Ephrahim Mbae Thuranira, but he later withdrew his suit against the 1st and 2nd defendants. The question which then arose is whether upon such withdrawal of the suit the verifying affidavit was withdrawn as well.

In a ruling dated 23rd October, 2007 Lenaola J. held that the effect of the 1st Plaintiff withdrawing his suit against the 1st and 2nd defendants was that the substratum of the suit was gone and the suit was thus rendered incompetent. In his view the withdrawal of the suit meant that the verifying affidavit was withdrawn as well. He accordingly ordered it struck out.

The applicants herein were aggrieved and filed a Notice of Appeal on 1st November 2007 declaring their intention to appeal against the decision, and in the meantime brought this application. The application which is expressed to be brought under rule 5 (2)(b) of this Court’s Rules on the main, seeks an order of injunction in the following terms:

“That an order of injunction be issued to restrain the 1st Respondent his servants, agents or anybody claiming through him from alienating, constructing, leasing, entering or whatsoever interfering with NKUBU Plots No.(Sic) 57A and 59 until the intended appeal is heard and determined’’.

In her affidavit in support of the application Winfred Maigene Stephen deposed or deponed that she bought plot No. 59 in 1975 from one Stephen Mutai. Transfer of title to her was effected and she thereafter took possession of the plot. She remained in possession until 2003 when the 1st respondent demolished permanent commercial premises she had erected thereon whose value she reckons was about Kshs.924,000 as at 9th July 2002. That prompted her along with her co-applicants to institute CIVIL CASE NO. 15 OF 2003, aforesaid. It was that suit which Lenaola J. struck out as earlier on stated.

The 1st respondent filed a replying affidavit on 5th February 2005 while the 3rd respondent filed one on 4th February 2008. From these affidavits it emerges that the 1st applicant was the original allotee of plot No.58 Nkubu Market. The allotment was made in 1972 by the Meru County Council which later caused the plot to be sub-divided into plot NOs. 57A, 57B, 58 and 59 which subdivisions apart from 58, were then allotted to the applicants herein. The aforesaid allotment by the 3rd respondent gave rise to Civil Case No. 115 of 1972, before the Senior Resident Magistrate’s Court, at Meru. In a judgment delivered on 25th January, 1979, that court found for the 1st respondent herein who was the plaintiff in the case. The defendants were M’Ikiara M’Rikanya and Sebastiano Nyamu.

For some reason not apparent to us the 1st respondent did not execute the decree within 12 years and when he sought to do so thereafter, the two defendants filed a suit in the superior court at Meru seeking orders to the effect that no action could properly be taken in execution of that decree as the same was statute barred. The superior court (Mulwa J.) declined to grant orders and thus provoked Civil Appeal No. 124 of 2003. By a judgment dated 31st July 2007, this Court agreed with the appellants and declared the execution of that decree statute barred.

Those are the background facts. The applicants were not personally parties to the two suits we earlier mentioned or the resultant appeal. They contend that they are registered owners and have been paying rent to the County Council of Meru regularly. They therefore pray that the 1st respondent be restrained from interfering with their ownership and occupation of the plots.

The principles which guide this Court in an application under rule 5(2)(b) are now well settled. To succeed, an applicant must not only satisfy the Court that his appeal or intended appeal is arguable or differently put that it is not frivolous, but also, that unless he is granted a stay or injunction as the case may be, the success of his intended appeal or appeal will be rendered nugatory. The Court exercises original and unfettered discretionary jurisdiction in the matter.

The applicants’ claim in the superior court is summarized in paragraph 11 of their plaint which reads as follows:-

“11. The plaintiffs’ claim is for the compensation for the damage and loss of the premises and properties therein.”

And their prayers in the aforesaid plaint are:-

“ (a) An order for compensation for the damage to the premises and properties therein at the market value at time of judgment.

(b) Permanent injunction to restrain the defendants from alienating, entering or whatsoever interfering with the plots NKUBU 57(a) and 57 (b) and 59. ”

There is no claim for either possession or title to the property. The applicants allege they are owners and are therefore not claiming title. It therefore follows that Plot Nos. 57A, 57B and 59 were not the subject-matter of the proceedings before the superior court. The applicants were seeking damages for damage to property. Their suit was struck out. So the issue in the intended appeal shall be whether or not their suit was struck out with justification.

In Halbury’s Laws of England, 4th Edition Paragraph 804 appear the following passage.

“The object of an interlocutory or interim injunction is to preserve matters pending the trial of matters in dispute…”

As we stated earlier the matters which shall be in dispute in the intended appeal relate to the propriety or otherwise of striking out the applicants’ suit. The ownership of the landed property shall not be in issue. That being so, the issue will not be whether or not the applicants own the property or whether they have possession thereof. So there is no question here that the substratum of the appeal or intended appeal will be wiped out unless the injunction is granted and thus render the success of the intended appeal nugatory. On the assumption that the applicant’s intended appeal is arguable we do not have a basis for holding that the success of the intended appeal will be rendered nugatory unless the injunction prayed for is granted. If they succeed in their intended appeal all they are likely to get is an order restoring their suit to the list of pending cases. The status of the plots, above will not affect the outcome of their intended appeal one way or the other.

The applicants have failed to satisfy this Court on the second test for granting an injunction. Consequently their application fails, and is dismissed with costs.

Dated and delivered this 18th day of April 2008.

S.E.O. BOSIRE

……..…………………….

JUDGE OF APPEAL

J.W. ONYANGO OTIENO

……………………………………

JUDGE OF APPEAL

J. ALUOCH

…………………………………..

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR