[2022] KEHC 15777 (KLR)

Makena v Kirera & 2 others (Civil Case 18 of 2019) [2022] KEHC 15777 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15777 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Case 18 of 2019

TW Cherere, J

December 1, 2022

Between

Catherine Makena

Plaintiff

and

Kibiti Kirera

1st Defendant

Capital Sacco Limited

2nd Defendant

I.G Ringera t/a Viewline Auctioneers

3rd Defendant

Ruling

Brief Facts 1. Applicant/plaintiff are alleged to wife. This suit was commenced by plaintiff by a plaint filed on the July 15, 2019. On the same date, plaintiff filed a notice of motion seeking orders an inhibition on land parcel No Timau/settlement scheme/ 430 as well as an injunction against the 2nd and 3rd defendants or their agents restraining them from entering or in any way interfering with the plaintiff’s family’s occupation or selling by public auction of the suit land pending the hearing and determination of the suit.

2. By a ruling dated July 31, 2019, the court made the following orders:i.The sale of land parcel No Timau/settlement scheme/430 by the 2nd and 3rd respondents is suspended for only a period of 60 days.ii.The 2nd respondent to pay the auctioneer charges.iii.Costs be in the suit.

3. Subsequently on September 30, 2021, the court allowed the plaintiff and 1st defendant to repay the loan due to the 1st defendant within 60 days’ failure to which the 2nd respondent was at liberty to sell the security.

4. From September 30, 2021, nothing much appears to have happened until June 6, 2022 when 1st respondent filed a notice of motion of the same date seeking an injunction against the 2nd and 3rd respondents which application was not prosecuted.

5. On October 18, 2022, 1st defendant filed an application seeking orders for temporary injunction to restrain the sale of land parcel No Timau/settlement scheme/ 430 and leave to file defence and counterclaim out of time. application is supported by 1st defendant’s affidavit sworn on October 18, 2022 in which he reiterates the grounds on the face of eth application. Additionally, 2nd defendant avers that ha has fully repaid the loan.

6. respondents opposed the application vide a PO dated June 14, 2022 and replying affidavit sworn on October 6, 2022 by Eliezer Kaburu, the Chief Executive Officer of the 2nd defendant in which he denies that the loan has been fully repaid.

7. I have considered the application in the light of the affidavits on record and annexures thereto and submissions filed on behalf of the parties and I have identified the following issues for determination1. Whether an injunction is merited2. Whether leave to file defence and counterclaim ought to be granted3. Who bears the costs of the application

Whether an injunction is merited 8. Any discussion on temporary injunctions is not complete without reiteration of the requirements for grant of injunctions as set-out in the Giella vs Cassman Brown [1973] EA 358 as follows:“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 be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience."

9. The principles on which courts will grant an injunction were restated by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others, CA No 77 OF 2012, together with the mode of their application 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, and(c)ally any doubts as to (b) by showing that the balance of convenience is in his favour.

10. From the foregoing, 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).

11. The Court of Appeal in the case of Mrao Ltd v First American Bank of Kenya and 2 others [2003] eKLR interpreted the condition as to prima facie case as follows:“A prima facie case in a civil application includes but is not confined to a "genuine and arguable case". It is a case which on the material presented to court; a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the other party as to call for an explanation or rebuttal from the latter."

12. Although 1st defendant contends he has fully repaid the loan which is denied by the 2nd defendant; his own annexures shows there is still some sum that remains unpaid.

13. It is trite that a party seeking a temporary injunction ought to demonstrate existence of a prima facie case. As long as the loan remains outstanding, 1st defendant cannot be said to have demonstrated a prima facie case with a probability of success.

14. As to whether 1st defendant out to be granted leave to file his defence and counterclaim out of time, the same has not been opposed.

15. Arising from the foregoing analysis, I proceed to issue the following orders:1. The prayer for orders of temporary injunction sought against the 2nd and 3rd defendants is declined.2. 1st defendant has 30 days to file and serve his defence and counterclaim.3. 1st defendant shall bear the costs of this application.

16. Mention on February 14, 2023 to confirm compliance and for direction concerning the hearing of the suit

DELIVERED THIS 1ST DAY OF DECEMBER 2022WAMAE T W CHEREREJUDGEAppearancesCourt Assistant - KinotiFor plaintiff - Ms Aketch for Vivian Loice Aketch & Co AdvocatesFor 1stdefendant - Mr Otieno for Otieno C & Co AdvocatesFor 2nddefendant - Mr Karanja for Mwirigi Kaburu & Co AdvocatesFor 3rddefendant - N/A