[2024] KEELC 13838 (KLR)

Kubai (Suing as the Legal Administrator/Representative of the Estate of Gabriel Kubai Kingori - Deceased) v Kingori & 2 others (Environment & Land Case E019 of 2024) [2024] KEELC 13838 (KLR) (11 December 2024) (Ruling)

Neutral citation: [2024] KEELC 13838 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Environment & Land Case E019 of 2024

CK Nzili, J

December 11, 2024

Between

Peninah Kalayu Kubai (Suing as the Legal Administrator/Representative of the Estate of Gabriel Kubai Kingori - Deceased)

Plaintiff

and

Dominic Ntongai Kingori

1st Defendant

Elizabeth Thairora Kariuki

2nd Defendant

Magdalene Kabuya

3rd Defendant

Ruling

1. In the ruling dated 16. 10. 2024, this court allowed the application dated 19. 8.2024 in terms of a temporary order of injunction to subsist for 1 year. The court, as a condition to granting the orders directed the applicant to file an undertaking as to damages of Kshs.1,000,000/= within 3 days thereof, in default of which the order of injunction would lapse.

2. When this matter came up for directions on 12. 11. 2024, learned counsel for the 3rd defendant contended that the letter filled by the applicant does not amount to an undertaking as it was not issued by a financial institution that can stand in for the plaintiff in the event of liability. This position was supported by learned counsels for the 2nd and 3rd defendants. The court, therefore, directed the parties to canvass the issue through written submissions to be filed by 18. 11. 2024.

3. The plaintiff filed submissions dated 15. 11. 2024. She contends that an undertaking is given to the court and not to the parties. See Hoffmann-La Ritchie (1974) 2 All R pg 1150. Further, it was submitted that the court did not ask for a professional undertaking. Reliance was placed on Waruhiu K’Owade & Nga’nga Advocates vs. Mutune Investments Ltd (2016) eKLR. The plaintiff also submitted that there is no legal provision on undertakings, and the same is made through the court’s discretionary powers under Section 3A of the Civil Procedure Act.

4. Relying on Funk and Wagnalls Standard Desk Dictionary Vol 2, the applicant submitted that to undertake means to make one responsible or liable with, to pledge, or to guarantee. Similarly, it was submitted religiously Jowitt’s Dictionary of English Law 2nd Edition (London, Sweet and Maxwell Ltd 1977) at pg 1827, that an undertaking is a promise to obtain some concession from the court or the opposite party. It is required where a court grants an interim injunction, to pay for the injuries to the defendant if he is found not liable and can be enforced by attachment as an injunction. The applicant further relied on Nguruman Limited vs Jan Bonde Nielsen(2020) and Gati vs Barclays Bank (K) (2001) KLR.

5. The 1st defendant relied on a written submission dated 15. 11. 2024. It was submitted that the plaintiff needs to produce more than just a letter as proof of security and undertaking as to damages. Equally, 1st defendant submitted that the purpose of an undertaking as to damages is to cushion a defendant in the event that a temporary injunction was wrongly granted under Order 40 Rule 2 of the Civil Procedure Rules. The 1st defendant relied on Chatur Radio Services vs. Pronogram Limited (1994) eKLR, and Achieng vs Odongo&2 others KEELC14793 (2022) KLR and Ongata Works Limited vs Tatu City Limited HCC 504 (2017) eKLR, and submitted that the letter of undertaking as filed is inadequate and the conditional orders have lapsed and ought to be lifted forthwith.

6. On her part, the 2nd respondent relied on a written submission dated 14. 11. 2024. It was submitted that the letter filed by the plaintiff was inadequate and that the same should have been obtained from a reputable bank since, at the hearing, the plaintiff alleged that she has no money and relies on rent from her tenant on L.R No Meru Municipality Block 11/61. Reliance was placed on Chatur (supra) and Ongata (supra), and prayed for the lifting of the injunctive order.

7. The 3rd defendant relied on written submissions dated 15. 11. 2024. She submitted that the plaintiff ought to have provided a letter of undertaking from a reputable financial institution demonstrating the adequacy of funds to meet the undertaking, without which the conditional injunction has lapsed.

8. The issue for my determination is whether the undertaking as to damages filed by the plaintiff complies with the prescribed format for an undertaking. The plaintiff contends that there are no statutory provisions, on what such a document should adhere to, and in fact, such order is purely made in the exercise of the court’s equitable discretion. The plaintiff urges the court to follow the case law cited as to what this court ought to look out for, in satisfying itself that the undertaking is acceptable, guided by Funk and Wagnalls Standard Desk Dictionary Vol 2 and Jowitt’s Dictionary of English Law 2nd Edition Vol 2, and the Black’s Law Dictionary 1Oth Ed, pg 1759

9. Section 72 of the Interpretation and General Provisions Act (Cap 2) provides for deviation from forms prescribed by law shall not be void for deviation therefrom; if the said omission does not affect the substance of the document and is clear in its terms and meaning that it is not calculated to mislead either the court or any of the parties.

10. In Mariam Mweni Musembi & Another vs Fernando Vischi & 4 Others [2009] eKLR, the court echoed the holding in Hoffman’s case that; “The undertaking is not given to the defendant but to the court itself. Non-performance of it is contempt of court, not breach of contract, and attracts the remedies available for contempts, but the court exacts the undertaking for the defendant’s benefit…”

11. In Ongata (supra), the court cited with approval Newby vs Harrison [1861] 3 De GF & J 287: as cited in Chatur (supra)“The true principle appears to me to be this, that a party who gives an undertaking of this nature puts himself under the power of the Court, not merely in the suit but absolutely; that the undertaking is an absolute undertaking that he will be liable for any damages which the opposite party may have sustained, in case the Court shall ultimately be of the opinion that the order ought not to have been made...” 12. The court further held and emphasized that an undertaking as to damages applies in all cases where a court at the hearing determines that the plaintiff is not entitled to an interlocutory injunction. At that stage, a defendant becomes entitled to a plaintiff’s undertaking to an inquiry on the damages sustained as a result of the injunction. It is aimed to facilitate his obtaining full compensation for all the injury caused to him by the granting of such an injunction.

13. From the cases above, it is clear that upon the dismissal of an application or suit where an injunction was erroneously issued the undertaking does not become payable to the respondent without an inquiry as to damages.

14. In this case, the only apprehension by the respondents is that the applicant is a person on straw, as deponed in her affidavit, and will not be in a position to adhere to the terms of the undertaking. The enforcement of any undertaking is not automatic, the respondents have to show the damages suffered as a result of the injunction which had been granted. In the event that after an inquiry, the defendants are found to have not suffered any damages, then the undertaking cannot be enforced.

15. Guided by the case law above my finding is that the undertaking that was filed on time by the plaintiff suffices to serve the purpose for which this court had contemplated. Should the defendants find it necessary based on their apprehension that the plaintiff may not meet the damages, they have a right to move the court for a provision of tangible security by the plaintiff. The preliminary objection is overruled.

DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 11THDECEMBER, 2024In presence ofC.A KananuGikundi for the plaintiffKirera for the 1st defendantMrs. Kinyanjui for 2nd defendantMiss Gumato for Murango Mwenda for the 3rd defendantHON. C K NZILIJUDGE