[2023] KEHC 26559 (KLR)

Muraya v Housing Finance Co Ltd (Civil Suit 416 of 2006) [2023] KEHC 26559 (KLR) (Commercial and Tax) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26559 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Suit 416 of 2006

FG Mugambi, J

December 8, 2023

Between

Geoffrey Macharia Muraya

Plaintiff

and

Housing Finance Co Ltd

Defendant

Ruling

1. Before the court is an application dated 22nd May 2023. It is brought under the provisions of order 40 rules 1, 2 and 4 of the Civil Procedure Rules, 2010 and sections 1A, 1B and 3A of the Civil Procedure Act.

2. The application seeks the following orders:i.Spentii.Spentiii.That further pending the inter partes hearing and determination of Civil Appeal No. 615 of 2019, Geoffrey Macharia Muraya Vs. Housing Finance Company (K) Limited, at the Court of Appeal in Nairobi, an order of injunction do issue against the defendant, its agents and/or assigns or any of them from advertising for sale, disposing of, selling or otherwise interfering with the land known as Nairobi Block 111/907. iv.That an urgent date be set for the hearing of this application inter-partes.v.That this Honourable Court do issue such further or other orders and or directions as it may deem fit and just to grant;vi.That the costs of this application be borne by the Respondents.

3. It is premised on the grounds on the face of it and the supporting affidavit and supplementary affidavit both sworn by Geoffrey Macharia Muraya. The applicant also filed written submissions which are dated 7th June 2023.

4. The application is opposed by way of a replying affidavit sworn by Hedaya Malesi a Legal Manager with the respondent. The respondent also filed written submissions also dated 7th June 2023.

5. The dispute herein is founded on the plaint filed on 28th July 2006, simultaneously with an application seeking injunctive orders against the respondent. The application was allowed on 23rd May 2008. The plaintiff thereafter failed to prosecute his suit and the Court, on its own motion, issued a Notice to Show Cause on 28th August, 2018 why the suit should not be dismissed for want of prosecution. The suit was dismissed on 20th September 2018. The applicant sought to reinstate the suit through an application dated 15th January 2019 and the same was dismissed by a ruling dated 4th October 2019.

6. Dissatisfied with the ruling of the Court, the applicant filed an appeal at the Court of Appeal, being Civil Appeal No. 615 of 2019 which is still pending at the Court of Appeal. It is for this reason that the applicant seeks injunctive orders pending the hearing and determination of the appeal.

7. The applicant argues that the respondent has issued statutory notices, which will cause wastage, damage and/or alienation of the applicant’s interest in the land comprised in the land known as Nairobi Block III/907 (the suit premises). Further the applicant states that the respondent has advertised for sale of the suit property and therefore the appeal will be rendered nugatory if the injunctive orders are not allowed, yet he does have an arguable appeal.

Analysis 8. I have carefully considered the pleadings, written submissions and the authorities filed by the rival parties. Besides the issue of sub judice which the applicant seems to have countered by withdrawing its application at the Court of Appeal, I must state that the action is a serious abuse of the court process and one which is rather unfortunate. The other issue for determination is whether the applicant has made out a case for the injunctive relief sought.

9. Order 40 Rule 1 of the Civil Procedure Rules 2010 gives the circumstances under which a temporary injunction can be granted by the Court. The conditions that guide the Court in granting such orders are also well crystalized. These were set out in the celebrated case of GiellavCassman Brown & Co. Ltd, (1973) E.A 385, at page 360 where Spry J. held that:“The conditions for the grant of an interlocutory injunction are ...well settled in East Africa. 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 adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

10. On the first condition, this Court is called upon to ascertain whether the applicants have shown a prima facie case following the threshold laid out in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others, [2003] KLR 125. The Court defined a prima facie case as:“...a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter...a prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of the applicant's case upon trial. That is clearly a standard which is higher than an arguable case.”

11. In determining whether a prima facie case has been demonstrated, I am in turn cognizant of the limitations of enquiry that are permitted of this court at this point in time. The Court of Appeal in Nguruman Ltd v Jan Bonde Nielsen 8 2 Others, [2014] eKLR observed 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.”

12. From a cursory perusal of the record, I note that the ruling that the applicant seeks to appeal from was issued dismissing his suit ten (10) years after the Court had allowed his application for injunctive relief. I further note that this Court has already pronounced itself on the issue and found no good reason for the application for reinstatement of the suit.

13. Having considered the grounds advanced by the applicant for failure to prosecute its suit, this Court is not satisfied that there was an explanation for the plaintiff’s Counsel missing Court on diverse dates between May 2013 and September 2018. I have perused the Memorandum of Appeal dated 11th December 2019 and to my mind, the issues raised therein do not meet the threshold required to demonstrate a prima facie case.

14. In Nguruman Limited V Jane Bonde Nielsen and 2 Others, [supra] the Court stated that if the plaintiff is unable to satisfy this first condition, the issue as to whether damages are sufficient to compensate the plaintiff in the event the suit succeeds as well as the balance of convenience and where that lies, does not arise.

Determination 15. In the premises I find that the applicant has not made out a case for grant of injunctive orders. I find no merit in the application and the same is dismissed with costs.

DATED, SIGNED AND DELIVERED IN NAIROBI THIS 8TH DAY OF DECEMBER 2023. F. MUGAMBIJUDGE