[2022] KEHC 16380 (KLR)

Ethics & Anti-Corruption Commission v Mukuria & 6 others (Anti-Corruption and Economic Crimes Civil Suit E001 of 2022) [2022] KEHC 16380 (KLR) (Anti-Corruption and Economic Crimes) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16380 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Civil Suit E001 of 2022

EN Maina, J

December 15, 2022

Between

Ethics & Anti-Corruption Commission

Plaintiff

and

Patrick Mukuria

1st Defendant

Top Image Consultants Ltd

2nd Defendant

Jane Wanjiru Mbuthia

3rd Defendant

Aka Wa-Iria Mwangi

4th Defendant

Value View Limited

5th Defendant

Jane Waigwe Kimani

6th Defendant

Mlima Kenya Holiday Homes Ltd

7th Defendant

Ruling

1. In the notice of motion dated December 20, 2021 filed herein on 21st January. The Ethics and Anti-Corruption Commission (EACC)/ plaintiff seeks the following temporary injunctive orders:-“(1)Spent.(2)Spent.(3)That pending the hearing and determination of this suit, this honourable court be pleased to grant an injunction retraining the 4th, 5th and 6th defendants/respondents, their agents, servants or any other persons from alienating, selling, charging or further charging, leasing, developing, sub-dividing, wasting, transferring, disposing and/or in any other way dealing with the parcels of land known as:-a.Nairobi Block 83/14/309 located at Umoja Innercore in Nairobib.LR No Mweiga Thungare/Block II/Therange parcel number 762 measuring 13 acres.(4)That in the alternative the honourable court be pleased to order that the 4th, 5th and 6th defendants/respondents furnish as security and place at the disposal of the court the titles to the parcels of land in (2) and (3) above.(5)That in the further alternative the honourable court be pleased to order that the parcels of land in (2) and (3) above be attached before judgment in the suit filed herein.(6)That this honourable court be pleased to issue any other or further orders it deems fit and just so as to preserve the suit properties pending the determination of the suit.”

2. The application is premised on grounds inter alia that:-“a)........b)That with regard to the instant suit, the plaintiff/applicant investigated allegations of procurement irregularities, corruption and conflict of interest with regard to media buying contracts awarded to the 2nd respondent by the County Government of Murang'a.c.That in the course of investigations, the plaintiff/applicant vide ACEC Misc Application No E002 of 2021, sought and was granted orders section 56 of the Anti-Corruption and Economic Crimes Act preserving two properties known as Nairobi Block 83/14/309 and IR No Mweiga Thungare/Block Il/ Therange/ll parcel number 762 measuring 13 acres for six months pending conclusion of investigations and/or filing of a suit for recovery.d.Investigation by the plaintiff established and established the following;i.Between the financial years 2013/2014 and 2016/2017, the 2nd defendant/respondent was awarded media buying tenders worth Kshs 542,610,615. 15/= by the 1st defendant/respondent in breach of procurement procedures and in abuse of office.ii.The plaintiff/applicant has concluded investigation and established that between the financial years 2013/2014 and 2016/2017, the 2nd defendant/respondent was awarded media buying tenders through requests for quotation and through a framework agreement worth Kshs 542,610,615. 15/= in breach of procurement procedures and in abuse of office.iii.Further that the 4th defendant/respondent, who at all material times was the Governor of Murang'a County Government held an interest in the aforesaid contracts awarded to the 2nd defendant/respondent hence engaged in conflict of interest contrary to the provisions of section 42(3) of the Anti-Corruption and Economic Crimes Act, 2003. iv.The contracts aforesaid having been procured through breach of procurement procedures, abuse of office and conflict of interest rendered them illegal ab initio and the funds paid pursuant thereto constituted proceeds of corrupt conduct or related to corruption.v.Investigation also revealed that the 2nd defendant/respondent subsequently directly financed the purchase of two properties subject of this application for the 5th defendant/respondent, a company owned by the 4th respondent's wife (the 6th respondent) and her brother (the 8th respondent) using the said proceeds.vi.The two properties known as IR No Nairobi Block 83/14/309 located at Umoja Innercore in Nairobi and I-R No Mweiga Thungare/Block Il/Therange parcel number 762 measuring 13 acres having been purchased through proceeds of corrupt conduct or related to corruption are amenable for forfeiture to the Government of Kenya.vii.lnvestigation also revealed that the 2nd defendant/respondent catered for the 4th defendant/respondent's hotel accommodation and air tickets costs amounting to Kshs 1,799,800/= using funds received by the 2nd defendant/respondent from Murang'a County Governmentviii.Similarly, the 2nd respondent also fully satisfied a decree issued against the 4th defendant in Milimani CMCC No 3462 of 2014 for Kshs 3,840,000/-arising out of a suit by CFC Stanbic Bank against the 5th defendant for defaulting on a facility.ix.Further, investigation revealed that over time the illegal funds were transferred to the 4th 5th 6th and 7th defendant/respondents through cheques, bank and mobile money transfers.i.THAT the balance of convenience tilts in favor of the granting the prayers sought by the plaintiff/applicant and the 4th, 5th and 6th defendants/respondents will suffer no prejudice if the orders sought are granted.j.That in the absence of an order stopping the 4th 5th and 6th defendants/respondents from dealing, transferring, disposing of the above stated, there is nothing to prevent them from dealing with the properties in the intervening period to the detriment of the public.k.That if the properties sought to be preserved are allowed to dissipate, the suit herein will be rendered nugatory with respect to recovery of the two properties acquired through proceeds of corruption or related to corruption.”

3. The application is supported by the affidavit of Jemimah W Githungu sworn on December 20, 2021 by which she elucidates the grounds on the face of the application.

4. The application is vehemently opposed by the 4th defendant through a replying affidavit sworn by himself on March 22, 2022. In the affidavit he deposes that to begin with he was not served with the pleadings and the summons to enter appearance; that the allegations made against him are false and were sensationalized to tarnish his reputation; that the impugned payments were regular and are well documented and the records can be availed to the EACC/applicant for perusal; that as the County Governor he had no role in procurement and the allegations are intended to incite this court and the public against him and hence the same constitute an abuse of court process. Further that the EACC/applicant is enjoined to follow the law strictly and ensure the constitutional safeguards of fair hearing provided in articles 50 and 51 of the Constitution are afforded to all persons.

5. The 5th and 6th respondents did not file responses to the application.

6. In the EACC’s further affidavit sworn by Jemimah W Gathungu on July 19, 2022 and filed herein on July 28, 2022 the deponent disputes all the averments in the 4th defendants/respondents affidavit and reiterates that should the orders sought in the notice of motion be declined then there is a real danger that the properties which were purchased through proceeds of corruption or related to corruption may dissipate.

7. The application was canvassed through written submissions.

8. Ms Kenduiwa learned counsel for the EACC/applicant placed reliance on the case of Ethics & Anti-Corruption Commission v Moses Kasaine Lenolkulal [2019] eKLR to urge this court to grant the orders sought. She submitted that the applicant had demonstrated that it has a prima facie case with a likelihood of success in that it carried out investigations which revealed that the 2nd defendant was irregularly awarded tenders worth Kshs 542,610,615/15 between the financial years 2013/2014 and 2016/2017; that the 5th defendant/respondent which is a company owned by the 6th defendant/respondent who is the wife of the 4th defendant/respondent benefitted from the funds paid to the 2nd defendant and further that the properties that are the subject of this application were purchased from those funds. Counsel also submitted that the EACC/applicant stands to suffer irreparable damage that cannot be compensated by way of damages; that were the properties to be disposed they would not be recoverable without great expense to the public. Counsel has also argued that the balance of convenience also tilts in favour of the EACC/applicant for the aforegoing reasons.

9. On their part counsel for the 4th and 7th defendant/respondents stated that the 4th and 7th defendants/respondents rely on the replying affidavit sworn by the 4th defendant/respondent. Counsel reiterated that the 4th defendant/respondent was not served with the pleadings in this case. Counsel then submitted that the EACC/applicant has not met the threshold for the injunctive orders sought in that it has not established a prima facie case with a high probability of success, neither has it demonstrated that were the orders to be declined and the suit succeeds it would suffer irreparable loss. Counsel reiterated the argument that neither the 4th defendant nor the 7th defendant had any role in the impugned procurement. Counsel stated that in any event, the procurement was lawfully carried out and that the matters deposed to by EACC/applicant are fictitious and are only intended to incite this court and the general public against the 4th defendant/respondent.

10. On the issue of irreparable loss counsel submitted that as the value of the properties the subject of this application can be ascertained/quantified they can be compensated by way of damages and as such the issue of irreparable loss does not arise. Counsel contended that the defendants/respondents are capable of compensating the applicant. Counsel contended that moreover this second condition does not apply as in the first instance the EACC/applicant has not demonstrated the first condition of a prima facie case. Counsel further asserted that the test of the balance of convenience would apply only if the court is in doubt on the first two tests; that the 4th and 7th defendants/respondents have proved they are not the registered owners of the suit properties and that the balance of convenience therefore tilts in their favour. Counsel also pointed out that Prayer 5 being a prayer for a mandatory injunction it is incapable of being granted at this stage. To support this argument counsel placed reliance on the case of Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya) [2019] eKLR. Counsel urged this court to dismiss the application with costs.

Analysis and Determination 11. As correctly submitted by counsel for the parties the conditions for grant of a temporary injunction, as is sought in this application, are that the applicant has established a prima facie case with a likelihood of success; that the applicant is likely to suffer loss that cannot be compensated by an award for damages were the order to be declined and the suit succeeds. It is only where the court is in doubt as regards the first two conditions that it resorts to the test of the balance of convenience. (See the case of Giella v Cassman Brown [1973] EA 358). I do also agree with the submission of learned counsel for the 4th and 7th defendants/respondents that a mandatory injunction cannot be granted at the interlocutory stage. The issue for determination therefore is whether or not the EACC/applicant meets the threshold for grant of a temporary injunction.

12. Having considered the grounds for the application, the response thereto, the rival submissions of learned counsel for the parties and the law I am satisfied that the applicant has demonstrated that it meets the conditions for grant of a temporary injunction. Firstly, there is evidence that establishes prima facie that the properties in issue may have been acquired using funds from a flawed and irregular procurement process and hence tainted funds. This I say from the point of view that a prima facie case is not one that must necessarily succeed – see the case of Simon Mulongo Sikuku & another v Munyang’oli Mbuya Wewela [2013] eKLR and the case of Mrao Ltd v First Assurance Bank of Kenya [2003] eKLR. It is also not lost to me that even where damages would be an adequate remedy a temporary injunction can still issue. (See the case of Joseph Siro Mosioma v Housing Finance Company of Kenya Limited & 3 others [2008] eKLR where the court stated:-“... damages is not automatic remedy when deciding whether to grant an injunction or not. Damages is not and cannot be substituted for the loss which is occasioned by a clear breach of the law, in any case, the financial strength of a party is not always a factor to refuse an injunction. More so a party cannot be condemned to take damages in lieu of his crystalized right which can be protected by an order of injunction.”Moreover, in this case damages would certainly not be an adequate remedy given that although the value of the property can be quantified the funds allegedly lost are public funds and there is need therefore to preserve the property until the suit is determined. Were the properties to dissipate it would no doubt be tantamount to allowing the defendants to enjoy the fruits of exactly what is sought to be recovered from them and that is undesirable and not in the public interest.

13. I must also say that the balance of convenience also tilts in favour of the applicant as it would be the one most inconvenienced by having to recover the properties. My reasoning finds support in the case of Giella v Cassman Brown [1973] EA 358 and also the case of Ethics & Anti-Corruption Commission v MosesKasaineLenolkulal [2019] eKLR.

14. In the upshot I find merit in the application and accordingly grant orders as follows: -1)That pending the hearing and determination of this suit, an injunction be and is hereby issued restraining the 4th, 5th and 6th defendants/respondents, their agents, servants or any other persons from alienating, selling, charging or further charging, leasing, developing, sub-dividing, wasting, transferring, disposing and/or in any other way dealing with the parcels of land known as:-a.Nairobi Block 83/14/309 located at Umoja Innercore in Nairobib.LR No Mweiga Thungare/Block II/Therange Parcel Number 762 measuring 13 acres.2. Costs shall be in the cause.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 15TH DAY OF DECEMBER, 2022. EN MAINAJUDGE