[2021] KECPT 539 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.69 OF 2019

JOHN ODHIAMBO ONGARO.......CLAIMANT

VERSUS

SALOME GRACE ORWA....1ST RESPONDENT

JEPHYS AUCTIONEERS.....2ND RESPONDENT

RULING

1. The Applicant filed an Application dated 21. 9.2020 for an injunction and orders to settle a loan by installments which Application Notice of Motion was brought under Order 40 Rule 1(a), (b), 2 (1), 4 (1), Order 51 Rule 3 of the Civil Procedure Rules, Section 1 A, 1B and 3A of the Civil Procedure Act cap 21.

The prayers sought were:-

1. That this Application be certified as urgent and be heard ex-parte in the first instance due to the urgent nature of the reliefs sought and service of this Application be dispensed with in the first instance.;

2. That pending the hearing and determination of this suit, an order of injunction be and is hereby issued restraining the Respondents whether by themselves, employees, servants and/or agents or otherwise assigns and/or any person whatsoever acting on their behalf and/or under his mandate and/or instructions from alienating , advertising for sale, offering for sale, selling, taking possession of, or otherwise in any manner whatsoever interfering with any movable or immovable properties attached and belonging to the Applicant;

3. That pending the hearing and determination of this suit, an order of injunction be and is hereby issued restraining the 2nd Respondents whether by himself, employees, servants and/or agents or otherwise assigns and/or any person whatsoever acting on their behalf and/or under his mandate and/or instructions from alienating , advertising for sale, offering for sale, selling, taking possession of, or otherwise in any manner whatsoever interfering with any movable or immovable properties attached and belonging to the Applicant;

4. That the Applicant be and is hereby allowed to settle the loan in installments that will be agreed between her and the 1st Respondent; and

5. That the costs of this Application be provided for.

2. The Application is supported by the Affidavit of Salome Grace Orwa dated 21. 9.2020 and filed on 22. 9.2020. The grounds of the Application as disclosed on the face of the Applications.

3. In response to the Application the Claimant/Respondent filed a Replying Affidavit sworn by dated 1st December 2020 and filed on 2. 12. 2020to which they opposed the Application and have the following:

a. Judgment Debtor has defaulted her loan the sum of Kshs.977,969/=

b. Judgment Debtor has no intention to settle indebtedness.

c. No proposal given by Judgment Debtor as to payment.

d. Judgment Debtor firm have no locus as they came on record after judgment.

e. Guarantor has already been deducted the loan amount thus unfair to him.

Analysis and Determination

We have carefully considered the Application, the Affidavits tendered by both parties in support and in rebut of the issues herein.

The issues for determination are:

i. Whether the Applicant has met the threshold for granting interlocutory injunction.

ii. Whether the Applicant should pay the decretal sum in installments.

4. Issue 1:

Whether the Applicant has met the threshold for granting interlocutory injunction.

The legal principles governing Application for interlocutory injunction the burden often lies with the Applicant to prove that the same ought to be granted.

It is also impotent to note that an injunction is a discretionary remedy and is granted on the basis of evidence and bound legal principles.

The principles for grant of temporary injunctions are well set out in the celebrated case of Giella -vs- Cassman Brown & Company Limited [1973] EA 358Supreme Judge held...

“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; and

c. Ally any doubts as to (b) by showing that the balance of convenience is in his favour.”

Further in the case of Mrao Limited - vs- First American Bank of Kenya & 2 others [2003] eKLR125

“.......A Prima Facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right and the probability of the Applicant’s case upon trial. It is a case which on the material presented, to the court, a Tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation from the latter......”

5. It is not in dispute that the Applicant took a loan which was guaranteed by the Claimant now Respondent in this Application.

It is also not in dispute that the Claimant was forced to pay up the defaulted loan to a tune of Kshs.977,969. 32/= being a guarantor.

The Applicant’s contention is that her failure to service the loan facility was because her source of income was cut short when her motor vehicle Matatu Registration number KBY 182H was towed by her financier “Real People” and lost the same as it was sold without notice and no information given to her.

6. The Applicant fell in arrears in the year 2018 and she however states she is willing to enter into an agreement with Claimant/Respondent on how to settle the matter through installments.

We are inclined to agree with the Claimant/Respondent the Applicant ought to have made payment or at least showed intent of paying off the loan facility pending hearing of the case. This is paramount in any given case.

The Applicant has failed in the 1st case to show cause why she should be granted the orders as per her Application dated 21. 9.2020.

7. Issue 2:

On whether she should pay or be allowed to settle the loan in installments as shall be agreed between her and Claimant Respondent.

The Applicant has always been in contact with the Claimant/Respondent.

We believe she had opportunities to negotiate the same with the Claimant/Applicant as to how to make payments to him noting he had been forced to settle the decretal sums by the lending Sacco.

We do not find the Applicant has come to the Tribunal with clean hands as she so wants us to believe.

8. On the issue of representation of the Applicant by a different firm of Advocates the law is clear once a matter has been concluded and judgment entered.

Order 9 Rule (9) Civil Procedure Rule 2010 states:

9 “When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court-

a. Upon an application with notice to all the parties; or

b. Upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person a the case may be.”

We note the Advocates S.M Gioche and Company Advocate are not properly on record and thus the Application was a non-starter.

The Applicant’s submissions dated 29. 3.2021 refer to a triable issues coming in after summary judgment.

If indeed the Applicant is being sincere and she ought to have filed for a review or setting aside of the judgment to enable the Tribunal determine the triable issue they are alluding to in their submissions.

9. In conclusion

The Application dated 21. 9.2020 lacks merits and the same dismissed with costs to the Claimant/Respondent.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 27TH DAY OF MAY, 2021

Hon. B. Kimemia Chairperson Signed 27. 5.2021

Hon. J. Mwatsama Deputy Chairperson Signed 27. 5.2021

Mr. P. Gichuki Member Signed 27. 5.2021

Tribunal Clerk Leweri

Getange for Claimant/Respondent: Present

Miss Njeri Advocate for Applicant : Present

Miss Njeri Advocate : I pray for 14 days stay of execution

Getange Advocate for Claimant: There is judgment we were executing.

Order : 7 days stay of execution granted.

Hon. B. Kimemia Chairperson Signed 27. 5.2021