[2022] KEHC 15910 (KLR)

Kiragu v Murimi (Civil Appeal 408 of 2019) [2022] KEHC 15910 (KLR) (Civ) (2 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15910 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 408 of 2019

JK Sergon, J

December 2, 2022

Between

Jamleck Murai Kiragu

Appellant

and

Robert Ngugi Murimi

Respondent

(Being an appeal against the ruling and order of Honourable I Orenge (Mr) (Senior Resident Magistrate) delivered on 12th July, 2019 in Milimani CMCC No 7249 of 2018)

Judgment

1. The respondent in this instance lodged a suit before the Chief Magistrate’s Court vide the plaint dated August 8, 2018; amended on September 4, 2018; and further amended on October 2, 2018 and prayed for reliefs in the nature of an order directing that the motor vehicle registration number KCB 118X (“the subject motor vehicle”) be released to him.

2. The respondent pleaded in the further amended plaint that he was at all material times the fictitious owner of the subject motor vehicle by way of payment made through Equity Bank.

3. The respondent pleaded in the further amended plaint that on August 14, 2016 the subject motor vehicle was stolen from a parking lot and was later traced in Naivasha on January 16, 2017 before being transported to Nairobi.

4. It is pleaded by the respondent that the officer in charge of the Special Crimes Prevention Unit (“the unit”) refused to release the subject motor vehicle to the respondent despite him tendering evidence to prove ownership of the subject motor vehicle.

5. On being served with summons, the appellant entered appearance and defended the claim by filing the statement of defence and counterclaim dated October 16, 2018.

6. In the counterclaim, the appellant pleads that he has at all material times been the registered owner of the subject motor vehicle and further pleads that the respondent obtained the said vehicle through fraudulent means.

7. The appellant in his counterclaim therefore prays for an order to the effect that he is the rightful owner of the subject motor vehicle; an order for the release of the subject motor vehicle to him and a further order for compensation by the respondent for loss of income incurred following the impoundment of the subject motor vehicle.

8. Subsequently, the respondent filed the notice of motion dated September 8, 2018 and amended on October 2, 2018 (“the application”) and sought for a mandatory injunction compelling the officer in charge of the unit to release the subject motor vehicle to the respondent and for an order compelling the registrar of motor vehicles to register the subject motor vehicle in the name of the respondent. The motion was opposed by the appellant.

9. Upon hearing the parties on the abovementioned application, the trial court by way of the ruling delivered on July 12, 2019 granted the mandatory injunction sought therein.

10. It is apparent that the appellant being aggrieved by the abovementioned ruling, has lodged the memorandum of appeal dated July 17, 2019 to challenge the same, by putting in a total of 13 grounds essentially arguing that the trial court in issuing a mandatory injunction at the interlocutory stage, conclusively determined the suit without considering the averments and submissions by the appellant, thereby falling into error.

11. Pursuant to the directions by this court, the parties were required to file written submissions on the appeal. However, at the point of writing this judgment, only the submissions by the appellant had been availed for consideration.

12. The appellant submits that the trial court erred in issuing a mandatory injunction and yet the respondent’s case did not warrant the issuance of such an order, citing the case of Locabail International Finance Ltd v Agroexport and others(1986) 1 All ER 901 where it was stated that:“A mandatory injunction ought not to be granted on an interlocutory application in the absence or special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction, the court had to feel a higher degree of assurance that at the trial it would appear that the injunction had rightly be granted, that being a different and higher standard than was required for a prohibitory injunction.”

13. The appellant also submits that in issuing a mandatory injunction, the trial court did not take into consideration the fact that the subject motor vehicle is registered in the name of the appellant and further did not consider the fact that the chassis number being referenced by the respondent in his pleadings varies from that associated with the subject motor vehicle.

14. It is the contention by the appellant that in issuing the injunction, the trial court in effect dispossessed the appellant of the subject motor vehicle without cause, notwithstanding his rightful ownership of the said motor vehicle.

15. For the foregoing reasons, the appellant urges this court to allow the appeal and to set aside the impugned ruling.

16. I have considered the contending submissions and authorities cited on appeal. I have also re-evaluated the material which was placed before the trial court. Upon doing so, I will tackle the 13 related grounds of appeal contemporaneously under the two (2) limbs below.

17. The first limb concerns itself with whether the learned trial magistrate acted correctly in granting the respondent an order of a mandatory injunction.

18. In the application dated September 8, 2018 and amended on October 2, 2018 seeking a mandatory injunction, the respondent stated before the trial court that a few months after his purchase of the subject motor vehicle from Japan through Equity Bank, the appellant whether by himself or through his agents, stole the subject motor vehicle and that it was later discovered bearing a false registration number.

19. The respondent also stated that he is the rightful owner of the subject motor vehicle and hence the officer in charge of the unit ought to release the subject motor vehicle to him unconditionally.

20. In reply, the appellant stated that he purchased the subject motor vehicle as a salvage sometime in the year 2016 and undertook repairs on it, following which he was issued with a logbook in his name on September 19, 2016.

21. The appellant further stated that the subject motor vehicle therefore belonged to him at all material times and that the motor vehicle allegedly belonging to the respondent bears a completely different chassis number namely KDH200-5014422 while his motor vehicle contains chassis number KDH200-0068195.

22. It is the averment by the appellant that if the trial court grants a mandatory injunction at the interlocutory stage, the issue of ownership of the subject motor vehicle will have been pre-determined in the absence of an opportunity for the appellant’s defence and counterclaim to be heard on merit, thereby causing him to be greatly prejudiced.

23. In his ruling, the learned trial magistrate reasoned that the respondent had made his case and the documentation tendered by him was not disputed by the appellant, thereby warranting the grant of a mandatory injunction.

24. When it comes to mandatory injunctions, the courts have generally been hesitant to grant the same particularly at the interlocutory stage, save in clear-cut cases. This was the reasoning taken by the court in the case ofLocabail International Finance Ltd v Agroexport and others (1986) 1 All ER 901 cited in the submissions by the appellant on appeal and also in the case of Lucy Wangui Gachara v Minudi Okemba Lore[2015] eKLR where the court rendered itself thus:“…the court will not grant a mandatory injunction if the damage feared by the plaintiff is trivial, or where the detriment that the mandatory injunction would inflict is disproportionate to the benefit it would confer. We would also add that, save in the clearest of cases, the right of the parties to a fair and proper hearing of their dispute, entailing calling and cross-examination of witnesses must not be sacrificed or substituted by a summary hearing.Persuasive judicial pronouncements by Indian courts have also affirmed that great circumspection is called for before awarding a mandatory injunction at interlocutory stage. In Bharat Petroleum Corp Ltd v Haro Chand Sachdeva, Air 2003, Gupta, J of the Delhi High Court observed as follows:“While courts power to grant temporary mandatory injunction on interlocutory application cannot be disputed, but such temporary mandatory injunctions have to be issued only in rare cases where there are compelling circumstances and where the injury complained of is immediate and pressing and is likely to cause extreme hardship. If a mandatory injunction has to be granted at all on interlocutory application, it is granted only to restore status quo and not to establish a new state of things.”

25. The above position was reaffirmed by the court in the case of Kenya Breweries Limited v Washington Okeyo(2002) 1 EA 109; (2002) eKLR cited in the case of Paul Mwaniki Gachoka & another v Nation Media Group Limited & another [2019] eKLR 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…”

26. Upon my re-examination of the pleadings and material placed before the trial court, I am of the view that the suit cannot be termed as clear-cut in nature in order to necessitate the granting of a mandatory injunction particularly at the interlocutory stage.

27. From my study of the pleadings and material, it is apparent that issues concerning ownership of the subject motor vehicle have arisen since both the appellant and the respondent have laid claim to the said vehicle; as well as allegations of theft and fraud surrounding the dealings of the subject motor vehicle have been raised and which would constitute serious issues that can only be considered and determined on merit upon trial and not at the interlocutory stage.

28. In view of all the foregoing circumstances, I am in agreement with the submission by the appellant that the learned trial magistrate was quick to issue a mandatory injunction whereas the circumstances of the suit did not warrant the injunction at that early stage.

29. The second limb of the appeal concerns itself with whether the learned trial magistrate disregarded the replying affidavit and submissions by the appellant before it.

30. Upon my perusal of the record and impugned ruling, I did not come across anything indicative of the fact that the learned trial magistrate overlooked the submissions made by the parties or overlooked any other relevant material.

31. That notwithstanding, in view of the reasons set out hereinabove, I am satisfied that the appellant has provided reasonable grounds to warrant an interference of the impugned decision.

32. The upshot therefore is that the appeal partially succeeds. Consequently, the ruling delivered by the trial court on July 12, 2019 is hereby set aside and is substituted with an order dismissing the notice of motion dated September 8, 2018 and amended on October 2, 2018 but with no order as to costs.

33. Upon considering the circumstances of the appeal, a fair order on costs would be to direct the parties to bear their own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 2ND DAY OF DECEMBER, 2022. ………….…………….J. K. SERGONJUDGEIn the presence of:………………………………... for the Appellant………………………………... for the Respondent