[2021] KESC 70 (KLR)

Equip Agencies Limited v I & M Investment Bank & 3 others (Application 13 of 2020) [2021] KESC 70 (KLR) (17 March 2021) (Ruling)

Equip Agencies Limited v I & M Investment Bank & 3 others [2021] eKLR

Neutral citation: [2021] KESC 70 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Application 13 of 2020

PM Mwilu, Ag.CJ & Ag. P, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

March 17, 2021

Between

Equip Agencies Limited

Applicant

and

I & M Investment Bank

1st Respondent

John Gikonyo t/a Garam Investment Auctioneers

2nd Respondent

Lucas Kiiru Ngingi, Paul Mbugua & Mary Wangari Gathume Sued in their Capacities as Office Bearers of Gilgil Total Investors Self Help Group

3rd Respondent

Gilgil Treatment Industries

4th Respondent

(Being an application for stay of execution and injunction against the Ruling and Order of the Court of Appeal (Warsame, Gatembu & Mohammed, JJ.A) in Civil Application No. 31 of 2019 (UR 37/2019), delivered at Nairobi on 8th May, 2020, pending the hearing and determination of Petition of Appeal No. 10 of 2020. )

Ruling

A. Introduction 1. This application is dated 26th June 2020, and lodged on 30th June 2020, seeking an Order for injunction restraining the respondent from in any way interfering with the applicant’s ownership or title to Land Reference Number L.R No. Gilgil Township Block 2/210, (the suit property) pending the hearing and determination of Petition No. 10 of 2020. It is brought under the provisions of Articles 2(1), (3), 4, 163 (4) (a) and (7) of the Constitution, Sections 15 (2), 21(1) and 24(1) of the Supreme Court Act 2011, and Rules 23 and 26 of the Supreme Court Rules, 2012.

2. Petition No. 10 of 2020, is dated 19th June 2020, and is brought pursuant to Article 163 (4) (a) of the Constitution, Section 15 (2) of the Supreme Court Act, and Rules 9 (1) and 33 (2) of the Supreme Court Rules 2012 (revoked). It seeks to appeal the Ruling and Order of the Court of Appeal (Warsame, Gatembu & Mohammed JJ.A) in Civil Application No. 31 of 201(UR 37/2019 delivered at Nairobi on 8th May 2020, wherein the Appellate Court, while determining an application for injunction brought under Rule 5 (2) (b) of the Court of Appeal Rules, affirmed the High Court’s Ruling (Tuiyott, J.) in Nairobi HCCC No. 417 of 2018 (formerly Naivasha HCCC No. 9 of 2016) that the applicant had failed to meet the threshold for grant of an injunction pending the hearing and determination of the substantive suit. The Motion is supported by the applicant’s affidavit sworn by Divyesh Indubhai Patel on 9th August 2020.

B. The Applicant’s Case 3. In its written submissions dated 29th June 2020 and further submissions dated 2nd July 2020, the applicant submits on three limps. Firstly, the applicant argues that this Court has jurisdiction to grant interlocutory orders and to entertain the intended appeal. In support thereof, the applicant relies on the decisions of this Court in Teachers Service Commission v. Kenya National Union of Teachers & 3 others; Application No 16 of 2015, [2015] eKLR (Teachers Service Commission Case) and Board of Directors, Moi High School Kabarak & another v. Malcom Bell; Application Nos 12 & 13 of 2012, [2013] eKLR (Malcom Bell case). It seeks to distinguish the instant application from the decision in the Teachers Service Commission Case. Towards this end, it is submitted that the applicant has lodged Petition No 1 of 2020 and has satisfied the general requirement, to the effect that, there must be a pending appeal before the Supreme Court before it can grant an injunction or any other interlocutory Order.

4. Secondly, it is submitted that the intended appeal is arguable on grounds that, the Court of Appeal exceeded its jurisdiction and delved into the merits of the case pending before the High Court, contrary to this Court’s holding in the Teachers Service Commission Case, Deynes Muriithi & 4 others v. Law Society of Kenya & another; SC Application No 12 of 2015, [2016] eKLR (Deynes Muriithi Case), and Damji Patel Pragji Mandavia v. Sara Lee Household & Bodycare (K) Limited, Civil Application No. Nai 345 of 2004.

5. The applicant adds that as a result, it was prejudiced and exposed to an unjust outcome, in violation of its rights under Article 50 of the Constitution. It is therefore the applicant’s contention that the intended appeal raises issues of interpretation and application of the Constitution under Article 163 (4) (a) of the Constitution.

6. It is the applicant’s submission that the appeal will be rendered nugatory, unless the injunctive reliefs sought are granted, as the respondent will proceed with the disposal of the suit property and eviction of the applicant. In conclusion, the applicant submits that the Court of Appeal decision is against public policy as it ignored the provisions of Sections 84 and 99 of the Land Act.

C. The Respondents’ Case 7. The 4th respondent filed its submissions dated 7th July 2020 in support of the application. It essentially agrees with the applicant, that this Court has jurisdiction to grant interlocutory Orders. It also supports the submission that the Court of Appeal lacks jurisdiction to decide on substantive issues pending before the High Court, and that in doing so, it deprived the parties a right to be heard as protected under the Constitution.

8. The 3rd respondent, vide its submissions dated 6th July 2020, urges that this Court lacks jurisdiction under Article 163 (4) (a) of the Constitution. it is the respondent’s case that the appeal does not involve matters of interpretation and application of the Constitution. It is the respondent’s further case that whereas this Court has jurisdiction to grant interlocutory orders, that jurisdiction can only be exercised in accordance with its decisions in inter alia, Malcom Bell Case and Teachers Service Commission Case. To this end, it is submitted that the appeal before the Court, is against a Ruling of the Court of Appeal made under Rule 5 (2) (b) of the Court of Appeal Rules. In the circumstances, the Court is devoid of jurisdictions as held in Stanley Kangethe Kinyanjui v. Tony Keter & others [2013] eKLR, and Deynes Muriithi Case.

D. Issues For Determination 9. Two issues fall for the Court’s consideration i.e., whether this Court has jurisdiction to hear and determine the instant application and subsequently the appeal; and whether the Court should grant orders for injunction.

E. Determination On Jurisdiction 10. The applicant urges that this Court has jurisdiction to grant interlocutory orders and relies on this Court’s decisions in the Teachers Service Commission Case and Malcom Bell Case. It also submits that the appeal and instant application are arguable as the Court of Appeal exceeded its jurisdiction and delved into the merits of the case pending before the High Court, contrary to this Court’s finding in Teachers Service Commission Case and Deynes Muriithi Case.

11. On the other hand, it is the 3rd respondent’s submission first, that this Court lacks jurisdiction under Article 163 (4) (a) of the Constitution as the appeal does not involve matters of interpretation and application of the Constitution. Secondly, the 3rd respondent submits that, whereas this Court has jurisdiction to grant interlocutory orders, it is devoid of jurisdiction to hear appeals against a Ruling of the Court of Appeal made under Rule 5 (2) (b) of the Court of Appeal Rules. It relies on this Court holding in Stanley Kangethe Kinyanjui Case, and Deynes Muriithi Case.

12. In Daniel Kimani Njihia v. Francis Mwangi Kimani & Another SC Application No. 3 of 2014 [2015] eKLR (Daniel Kimani Njihia Case), this Court stated:‘[21]……. Not all decisions of the Court of Appeal are subject to appeal before this Court. One category of decisions we perceive as falling outside the set of questions appealable to this Court, is the discretionary pronouncements appurtenant to the Appellate Court’s mandate. Such discretionary decisions, which originate directly from the Appellate Court, are by no means the occasion to turn this Court into a first appellate Court, as that would stand in conflict with the terms of the Constitution.’ [Emphasis added]

13. From the pleadings and submissions before us, it is undoubtedly clear that under paragraph 2 of the said Ruling, the application before the Court of Appeal was brought under Rule 5 (2) (b) of the Court of Appeal Rules. The impugned Ruling was arrived at by the Court of Appeal in exercise of its discretionary powers. From the decisions of this Court in Teachers Service Commission Case, Deynes Muriithi Case, Daniel Kimani Njihia Case, etc, it is clear that save in very exceptional circumstances, an appeal does not lie to this Court, from the Court of Appeal’s Ruling under Rule 5 (b) of that Court’s Rules. We do not see how the application before us has established any basis for an exception to our decisions cited above.

14. By the same token, we don’t see how our holding in the Teachers Service Commission Case is distinguishable. There is no substantive Judgement by the Court of Appeal on the basis of which this Court can grant an injunction in the manner and style, as prayed by the applicant. The substantive dispute still remains to be resolved by the High Court. In Boniface Katana Kilaveri v. Ethics & Anti-Corruption Commission & Commissioner of Lands; SC Petition No. 15A of 2016, [2018] eKLR, this Court held that where the substantive matter is still pending before the High Court, the Supreme Court would be hesitant to assume jurisdiction. The Court stated:“…..we reiterate that the substantive matter still lies at the High Court and until it has been heard and determined, and the proper appellate processes have been followed, we find that this court does not have jurisdiction to entertain this appeal.”

15. Consequently, we must arrive at the inescapable conclusion to the effect that this Court lacks jurisdiction to entertain both the application and intended appeal.

F. Ordersi.The Application dated 26th June 2020, is hereby dismissed;ii.The decision of the Court of Appeal delivered on 8th May 2020, declining Orders for injunction is hereby affirmed;iii.Consequently, Petition No. 10 of 2020 is hereby dismissed.iv.The costs of this Application and Petition shall be borne by the Applicant.Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF MARCH, 2021. ……………………..…………........................P. M. MWILUAg. CHIEF JUSTICE & Ag. PRESIDENT OF THE SUPREME COURTJUSTICE OF THE SUPREME COURT……………………………………………….....M. K. IBRAHIMJUSTICE OF THE SUPREME COURT……………………………..……..……….……S. C. WANJALAJUSTICE OF THE SUPREME COURT………………………………………………….NJOKI NDUNGUJUSTICE OF THE SUPREME COURT……..…………………………………………..I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA