[2023] KEHC 25894 (KLR)

Hamid & 3 others v Muchura & 10 others (Civil Case E049 of 2023) [2023] KEHC 25894 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25894 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Case E049 of 2023

DKN Magare, J

November 21, 2023

Between

Hamaid Juma Hamid

1st Plaintiff

Abeid Hamud

2nd Plaintiff

Faud Rashid

3rd Plaintiff

Athman Mohammad

4th Plaintiff

and

Tom Muchura

1st Defendant

Harish Shah

2nd Defendant

Mohamed Islam

3rd Defendant

Col Moses N Gitonmgu & 7 others

4th Defendant

Ruling

1. Sports and membership clubs are meant to be citadels or virtue. However, the parties have been in these corridors of justice the better part of 2023. I was thinking of a good Christmas gift I could give them so that they don’t come back. It is not a secret that all that all is not well at Mombasa Sports Club.

2. Parties are in court over positions and power. One side stole a match by suspending the protagonists in the other side. In all the members who are suffering. The leadership wrangles are not good for the club. It is clear that the case is not idle. There is a real and immediate danger that the plaintiffs can be excluded from membership of a club. The exclusion is based on the fact that they are rivals of the immediate former leadership and the caretaker group.

3. The decision of Giella vs Cassman Brown [1973] E.A 358, set out principles for grant of injunction. The former Court of Appeal for East African, through Spry VP, as then he was, stated as follows: -“The conditions for the grant of an interlocutory injunction are now, I think, well settled in east Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

4. Recently, the Court of Appeal in the case of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, stated as follows: -“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;a.Establish his case only at a prima facie level,b.Demonstrate irreparable injury if a temporary injunction is not granted, andc.allay any doubts as to (b) by showing that the balance of convenience is in his favour.

5. These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society[2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable.

6. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.”

Prima Facie Case 7. The first test is the issue of Prima facie case. Different courts have labored on what constitutes a prima facie case. In the case of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal, indicated the following a regards prima facie case: -“We adopt that definition save to add the following conditions by way of explaining it. The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.”

8. It is my considered view that the matters pleaded, have raised a prima facie case. The Plaintiff are members of the club and the 5th defendant has unilaterally suspended them. There does not appear to have been a hearing before the decision was made. This is anathema to good governance and tenets of Article 47 of theconstitution. The same provides as doth: -“47. Fair administrative action(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.(3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—(a)provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and(b)promote efficient administration.

9. The Plaintiff has an arguable case. In other words, the Plaintiff has established a prima facie case.

Irreparable Loss 10. The personal loss to the Plaintiffs is not sufficient. loss that the club will suffer. The club can and will survive without all the parties herein. However, it is the nadir of impunity to imagine or encompass that the club will lose without them.

11. In the related matter I had observed the elections to be held. If they were then those office bearers were property elected. However, the club is suffering loss of reputation though these wrangles. It requires solomonic wisdom to navigate.

12. In this case the Applicants were suspended by their rivals. They will not have a right to vote if they are suspended. It is therefore prudent to stay the suspension. However, slaying the suspension it not the same as lifting. Consequently, the Applicants are allowed to proceed with club activities.

13. However, a decision needs to be made on the suspension. They shall not be legible to be voted into office, till the matter is heard and determined. The Respondents are said to be caretaker members. To enable them to be completely neutral, the shall equally not be eligible to view for office. Consequently, it is proper and just to bar both named defendants and named plaintiffs from vying for any elective office till this case it heard and determined.

14. The Respondents filed an application dated 23/10/2023 for the discharge of orders. They seek to discharge the orders pending referral to arbitration. The said to be under the Arbitration under. The club Rules unfortunately the Applicant filed a notice of appointment way back on and filed the application on 23/10/2023.

15. The Rules on arbitration are strict and non-compliance leaves parties non suited. Section 6(1) of the arbitration Act provides as doth: -“(1)Stay of legal proceedingsA court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds—(a)that the arbitration agreement is null and void, inoperative or incapable of being performed; or(b)that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration.(2)Proceedings before the court shall not be continued after an application under subsection (1) has been made and the matter remains undetermined.(3)If the court declines to stay legal proceedings, any provision of the arbitration agreement to the effect that an award is a condition precedent to the bringing of legal proceedings in respect of any matter is of no effect in relation to those proceedings.

16. Consequently, by not filing the application not later than the time of filing notice of Appointment, the Defendant lost a Right to arbitration. Consequently, the application is dismissed.

Determination 17. To be able to set the way forward, I make the following orders: -a.The suspensions of the plaintiffs herein is stayed, making them legible to vote but with no right to contest pending the hearing of the suit.b.Each party to bear their own costs.c.The application dated 23/10/2023 is dismissed with no order as to costs.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 21ST DAY OF NOVEMBER, 2023. KIZITO MAGAREJUDGEJudgment delivered through Microsoft Teams Online Platform.In the presence of:No appearance for Mr. Omwenga for defendantMiss Mohamed for the Plaintiff