[2022] KEHC 1574 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. E580 OF 2021

FRANCIS ZAKAYO WAMBUA....APPLICANT/APPELLANT

-VERSUS-

DONALD MBUUKO............................................RESPONDENT

RULING

1. The plaintiff/applicant herein has brought the Amended notice of motion dated 1st October, 2021 supported by the grounds set out on the body thereof and the facts stated in the affidavit of Steven Musili. The applicant sought for the following orders:

i. Spent

ii. Spent

iii. That pending the hearing and determination of this appeal herein, the plaintiff be restrained from selling or offering for sale by auction or by private treaty or by interfering in any way whatsoever the properties proclaimed in the Notice of attachment dated 2/9/2021.

iv. That an order of mandatory injunction do issue directing the plaintiff who instructed Ruol auctioneers to immediately release all items unlawfully attached on 2/9/2021 unconditionally and the cost of the attachment to be borne by the Plaintiff.

v.That the costs of this application be in cause.

2. To oppose the Motion, the respondent put in the replying affidavit sworn by Donald Mbuuko dated 7th October 2021.

3. The respondent further filed a notice of preliminary objection dated 27th October, 2021 and raised the grounds that this appeal is hopelessly incompetent and fatally defective and should be struck out .That is appeal is baseless in law as there are no orders issued by Hon. D. W Mburu on 14th September 2021 as alleged in the Memorandum of Appeal.

4. The respondent further stated that the appeal has been overtaken by events since the orders being sought herein were already granted on 26th October 2021 vide a fresh application dated 3rd October 2021 filed by the Appellants.

5. I have considered the grounds featuring on the face of the Motion; the facts deponed in the supporting and replying affidavits respectively; the preliminary objection and the affidavit in response thereto; and the rival written submissions placed before me.

6. A brief background of the matter is that the applicant instituted a suit against the respondents by way of the plaint dated 10th September, 2020 for breach of contract for failing to transfer the suit land to the respondent after he paid the whole consideration.

7. The appellant did not enter appearance making the respondent file a request for judgment in default of appearance which was endorsed and judgment delivered on 23rd December 2020. The appellant filed an application seeking to set aside the said ex parte judgment which was allowed on condition he paid throw away costs of Kshs .20,000/= and file his defence within 14 days. The appellant did not file the defence on time.

8. Subsequently, the appellant filed another application dated 3rd September 2021 seeking orders for stay of execution and setting aside warrants of attachment issued on the 30th July 2021 and proclamation of attachment carried out on 2nd September 2021 which application was set for interparties hearing on 14th September 2021.

9. The appellant filed yet again another application dated 26th October 2021 seeking for stay and leave to file defence out of time. The application was partially allowed and temporary order for stay of execution and directed that the said two applications be disposed jointly by way of written submissions and both to come up for ruling on 21st December 2021.

10. Returning to the matter at hand, I will first make a determination on the preliminary objection which is premised on the argument that the appeal should be struck out in limine as there were no orders issued as alleged in the Memorandum of Appeal.

11. In reply thereto, the appellant states that he sought for interim preservatory orders in the nature of stay of execution pending the hearing and determination of the application but the lower court declined to issue the same and set the matter for mention in a far date paving way for execution therefore necessitating this appeal.

12. Reference is made to the case of Mukisa Biscuit Company v West End Distributors Limited (1969) EA 696cited in the submissions by the respondent, where the court defined the term ‘preliminary objection’ in the following manner:

“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised in any fact that has to be ascertained or if what is sought is the exercise of judicial discretion.”

13. Upon my study of the instant appeal, it is clear that the reason the appellant filed the said appeal was the court’s failure to exercise its power to grant the orders sought being for stay since they would be at risk or at the mercy of auctioneers who had already proclaimed and were ready to attach.

14. In view of the foregoing, I am satisfied that the appeal is properly on record and in the interest of justice and for the sake of fair hearing. Consequently, the preliminary objection dated 27th October, 2021 is hereby dismissed with costs to the appellants.

15. From my study of the Motion, it is clear that the applicant isseeking for two (2) key orders: the grant of an interlocutory injunction and the grant of a mandatory injunction. I will first deal with the interlocutory injunctive order sought.

16. The germane principles on interlocutory injunctions were stated by the Court of Appeal in East Africa in the case of Giella v Cassman Brown & Co. Ltd (1973) EA as follows:

The applicant must first establish a prima facie case with a probability of success. The applicant must then demonstrate that he, she or it stands to suffer irreparable loss that cannot be adequately compensated through damages. Where there is doubt on the above, then the balance of convenience should tilt in favour of the applicant.

17. The above principles were restated in the case of Micah Cheserem v Immediate Media Services & 4 others [2000] eKLR cited by the respondents and in respect to defamatory claims, thus:

“Firstly, the applicant must establish a prima facie case with a probability of success. Secondly, the applicant must show that he or she stands to suffer irreparable loss that cannot be adequately compensated by way of damages. Thirdly, where the court is in doubt, then the balance of convenience should tilt in favour of the applicant.”

18. On the first issue, it is the position of the applicant that on the date that the original application was to come up for hearing before this court the auctioneer struck at 6 a.m in the morning and attached the Appellant’s goods which is clear that the trial court erred when it failed to preserve the subject matter.

19. It is clear also that if execution was to occur, the application before the court would be nugatory and if the orders sought herein are not granted then this appeal will be defeated and rendered an academic exercise.

20. On the other hand the respondent stated that there were no orders issued by the learned magistrate and that the appeal is therefore a sham and has no chances of success.

21. Having considered the arguments put forward by the parties, this court is of the opinion that on the face of it that the subject suit should be preserved before it so as to guard the right of the parties to be heard on merit and that the respondent would not suffer any prejudice which cannot be compensated by an award of costs. It therefore follows that the balance of convenience tilts in favor of the applicant.

22. On the last issue that concerns the prayer for a mandatory injunction is the applicant’s argument that the subject attachment was illegal as it was carried well before the ordained time for attachment between 8 a.m and 5p.m and by attaching at 6 a.m the auctioneers committed an illegality that they seek the court to remedy. It is in their view that the respondent should be allowed to rely on the existing status quo having obtained it in an illegal manner.

23. In the case of Kenya Breweries Limited v Washington Okeyo[2002] eKLR cited in Paul Mwaniki Gachoka & another v Nation Media Group Limited & another [2019] eKLR referenced above, the court reasoned that:

“A Mandatory Injunction can be granted on an interlocutory application as well as at the hearing 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 match on the plaintiff. A mandatory injunction will be granted on an interlocutory application.”

24. The defendants in their submission argued that the orders of mandatory injunction are farfetched and are clearly against the tenets of natural justice that no party should be condemned unheard and that the appellant failed to demonstrate and satisfy the court that he is bound to suffer substantial and irreparable loss if the application is not allowed. The respondent further submitted that appellant has not provided any security for the due performance of the money decree issued against him.

25. The motion dated 1/10/2021 partially succeeds. It is allowed.

Consequently, an order for injunction is granted thus the respondent is restrained from selling or offering for sale by auction or by private treaty or by interfering in any way whatsoever the properties proclaimed in the Notice of attachment dated 2/9/2021 pending appeal.

26. The prayer seeking for a mandatory order of injunction is declined at this stage.

27. Costs of the motion to abide the outcome of this appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF MARCH, 2022.

…….….……………..

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the Appellant

……………………………. for the Respondent