[2013] KEHC 7027 (KLR)
The court found that the Plaintiffs' application was unopposed, as the 1st Defendant failed to file any response or submissions. The facts as presented by the Plaintiffs, including the existence of a Sale Agreement and the 1st Defendant's failure to deliver the contracted goods, were not rebutted. Applying the...
Source-derived case information.
- Citation
- [2013] KEHC 7027 (KLR)
- Parties
- Plaintiff: Loise Mumbi Kahiu; Plaintiff: Jeniffer Wairimu Kahiu; Defendant: Crab An George Investments; Defendant: Kenya Commercial
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 73 of 2013
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Mandatory injunction granted in terms of Prayer No. 6 of the Notice of Motion dated 14th March 2013. Costs to the Plaintiffs against the 1st Defendant.
- Judges
- CM Kamau
- Legal Topics
- Injunctive Relief, Breach of Contract, Mandatory Injunction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Loise Mumbi Kahiu
Plaintiff
Jeniffer Wairimu Kahiu
Plaintiff
Crab An George Investments
Defendant
Kenya Commercial
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the Plaintiffs are entitled to a mandatory injunction compelling the 2nd Defendant to countermand specified bankers cheques and restore funds to the bank account.
- 2 Whether the Plaintiffs have established a clear case for the grant of interlocutory mandatory injunction against the Defendants.
Ratio Decidendi
The court found that the Plaintiffs' application was unopposed, as the 1st Defendant failed to file any response or submissions. The facts as presented by the Plaintiffs, including the existence of a Sale Agreement and the 1st Defendant's failure to deliver the contracted goods, were not rebutted. Applying the principle from Kenya Breweries Ltd Vs. Okeyo, the court determined that this was a clear case warranting the grant of a mandatory injunction at the interlocutory stage, as the relief sought was a simple, summary act that could be easily remedied and would serve the interests of justice by avoiding unnecessary delay. The court thus granted the mandatory injunction sought in Prayer...
Court Disposition
Mandatory injunction granted in terms of Prayer No. 6 of the Notice of Motion dated 14th March 2013. Costs to the Plaintiffs against the 1st Defendant.
Orders
- Prayer No. 6 of the Notice of Motion application dated 14th March 2013 is granted, compelling the 2nd Defendant to countermand specified bankers cheques and restore funds to the bank account.
- Costs of the application to be borne by the 1st Defendant.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL CASE NO. 73 OF 2013
LOISE MUMBI KAHIU……………………………………..….1ST PLAINTIFF/APPLICANT
JENIFFER WAIRIMU KAHIU……………………………….. 2ND PLAINTIFF/APPLICANT
VERSUS
CRAB AN GEORGE INVESTMENTS.…………….….1ST DEFENDANT/RESPONDENT
KENYA COMMERCIAL…………………………….......2ND DEFENDANT/RESPONDENT
RULINGS
The Plaintiff’s Notice of Motion application dated 14th March 2013 and filed on 15th March 2013 sought injunctive orders to restrain the 1st Defendant from accessing a sum of Kshs. 1,800,000/= in the 1st Defendant’s Kenya Commercial Bank Account Number 1134662378 and to restrain the 2nd Defendant from releasing said monies to the 1st Defendant pending the hearing and determination of the suit herein.
The Plaintiff also sought a mandatory injunction to compel the 2nd Defendant to countermand Bankers Cheque numbers 142170, 142169 & 142716 and restore the funds in the said bank account.
The 1st Defendant’s counsel attended court on 2nd May 2013 and requested the court to mention the matter on 9th May 2013 with a view to recording a consent judgment but on 9th May 2013, in the absence of a consent judgment, the court directed the 1st Defendant to file its Replying Affidavit and that the parties do file their respective written submissions. The matter was fixed for mention on 21st June 2013.
On that day, neither did counsel for the 1st Defendant did not attend court nor the 1st Defendant file its Replying Affidavit and written submissions as had been ordered by the court. The 2nd Defendant informed the court that it was not filing any papers as the application was essentially between the Plaintiffs and the 1st Defendant. The Plaintiff filed their written submissions on 18th June 2013. The court therefore reserved its ruling which was to be delivered on notice.
According to the facts of this case and the written submission by the Plaintiff, the 1st Defendant failed, ignored and/or refused to deliver to the 2nd Plaintiff 1,500 bags of white maize in 90 Kg bags. The Sale Agreement dated 25th February 2013 was signed between the 1st Plaintiff on behalf of the 2nd Plaintiff and the 1st Defendant. The said agreement was annexed to the Supporting Affidavit of Loise Mumbi Kahiu, who is the 1st Plaintiff herein, sworn on 15th March 2013.
The court agrees with the Plaintiff’s counsel that their application was unopposed. Although the 1st Defendant appeared in court on 9th May 2013, it does not appear to have been keen in countering the allegations by the Plaintiffs. Its advocate also informed the court that it was considering recording a consent judgment.
The court noted that the Plaintiffs did not attach copied of the cases of Geilla Vs. CAssman Brown & Co (1973) E.A. 358&Magnate Venture Ltd vs Eng. Kenya Ltd (2009) KLR.
Be that as it may, the court is of the view that it would be in the best interests of justice to grant a mandatory injunction as opposed to granting restraining orders as had been sought by the Plaintiffs bearing in mind the overriding principles of facilitating an expeditious disposal of matter.
In arriving at the said conclusion, the court has had due regard to the case of Kenya Breweries Ltd Vs. Okeyo [2002] 1 E.A 109 where the court held as follows:-
“ A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and then only in clear cases either where the court thought the matter sought to be decided at once or where the injunction was directed at a simple summary act which could be easily remedied.”
In the absence of any facts by the 1st Defendant to rebut the Plaintiff’s claim, it is evident that this is a clear case where the court can issue a mandatory injunction. It would be a waste of judicial time to deny the Plaintiffs access to the monies in the aforesaid bank account belonging to the Plaintiff and proceeding to full trail.
The upshot of this ruling is that the court hereby grants Prayer No. 6 of the Notice of Motion application dated 14th March 2013. The Plaintiffs costs of this application will be borne by the 1st Defendant.
Orders accordingly.
DATED and DELIVERED at NAIROBI this 20th day of September 2013
J. KAMAU
JUDGE