[2022] KEHC 15418 (KLR)

Mulamba (Suing as the Secretary of Government of Kakamega Staff Welfare Association) v Co-operative Bank of Kenya Limited (Civil Appeal 1 of 2022) [2022] KEHC 15418 (KLR) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15418 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 1 of 2022

PJO Otieno, J

November 11, 2022

Between

Alfred Mulamba

Appellant

Suing as the Secretary of Government of Kakamega Staff Welfare Association

and

Co-operative Bank of Kenya Limited

Respondent

(Being an appeal from the Ruling of Hon. J. N. Maragia (SRM) in Kakamega CMCC. No. E0190 of 2021 delivered on the 8th December 2021)

Judgment

1. The interlocutory appeal here challenges the decision by the trial court which dismissed an application for temporary injunction on the basis that the appellant, as plaintiff at trial, had sued the wrong party and thus failed to establish a prima facie case. In that decision, at the relevant portions, the court said:-“The applicants’ main ground for seeking the orders is that he is the secretary of the Kakamega Staff Welfare Association. He does not however bring the suit on behalf of the Association. The Association is a corporate body which can sue or be sued. The applicant appears to be dissatisfied by the Association’s decision of removing his name from the list of bank signatories. In response, the respondent argues that it is not her decision to make changes regarding affairs of the Association. They only effect that which is communicated to them by the Association. The respondent has attached a letter dated January 2, 2020 indicating that the Association changed the signatories of the account. They only implemented the same.Clearly, the applicant has brought a wrong party to court. The respondent is only a third party. Secondly, even if the court were to take it that the applicant is suing on behalf of the Association, still he has no legal capacity to sue the respondent. For these reasons, I find that the applicant has failed to establish a prima faciecase against the respondent.”

2. As a first appellate court, the mandate is to re-appraise and re-examine the entire corpus of the material presented before the trial court with a view to coming to own conclusion1, but always taking caution that the court may not enjoy the benefit enjoyed by the trial court who had the chance to see and hear the witnesses testify and observed their demeanour. Here, however, there was never viva voce evidence taken but the court notes that decision reached by the trial court is one that involved exercise of discretion. The law is that it is a strong thing for an appellate court to interfere with a decision reached upon exercise of discretion. The appellate court can only interfere with such a decision where it is demonstrated that the court misdirected itself in some material matters and as a result arrived at a decision that was erroneous or where it is manifest that the discretion was exercised wrongly with a result that an injustice has resulted. In Supermarine Handling ServicesvKenya Revenue Authority Civil Appeal No. 85 of 2006 the Court of Appeal reiterated the leeway of the appellate court in the following words:-1Abok James Odera v John Patrick Wachira [2013] eKLR“Thus, where a trial court has exercised its discretion on costs, an appellate court should not interfere unless the discretion has been exercised unjudicially or on wrong principles. Where it gives no reason for its decision the Appellate Court will interfere if it is satisfied that the order is wrong. It will also interfere where reasons are given if it considers that those reasons do not constitute “good reason” within the meaning of the rule.”

4. It is settled principle of law that whether to grant or refuse the equitable remedy of injunction is at the discretion of the court before which the matter is placed. In the matter at hand, in coming to the decision it reached, the trial court did appreciate the guiding principles to be those enunciated in the celebrated cases of Giella v Cassman Brown EA [11973] EA 358. That was and remains the legal beacon for any court considering an application for a temporary injunction.

5. Having so set focus with the eyes on the due target, the court then find that, there was evidence to show that the decision to change account signatories was by the Society and not the Respondent. In fact the trial court found that no prima facie case had been demonstrated against the Respondent and it was thus unnecessary to delve into the interrogation of whether damages would be an adequate remedy and where the balance of convenience rested.

6. In Nguruman LimitedvJan Bonde Nielsen & 2others [2014] eKLR the Court of Appeal did set the consideration to be that:-“The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation.”

7. It was the onus of the appellant to prove, on a balance of preponderance that the respondent had done something that violated his right or injured him. That was not on the face of the material availed evident.

8. I find that no demonstration has been made that the trial court exercised her discretion improperly or injudiciously in declining to grant the injunction sought.

9. Consequently, there is no justification to interfere with the decision arrived at and the appeal therefore lacks merit and is therefore dismissed with costs.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, THIS 11TH DAY OF NOVEMBER 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Mr. Alfred Mulamba the Appellant presentNo appearance for Otsyeno for the RespondentCourt Assistant: Polycap Mukabwa