[2023] KEHC 26377 (KLR)

NCBA Bank Group PLC v Mose & another (Civil Appeal 158 of 2021) [2023] KEHC 26377 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26377 (KLR)

Republic of Kenya

In the High Court at Kisii

Civil Appeal 158 of 2021

DKN Magare, J

December 8, 2023

Between

NCBA Bank Group PLC

Appellant

and

Josephat Nyachio Mose

1st Respondent

Boaz Iteba Sosi

2nd Respondent

Judgment

1. This is an appeal arising out of the ruling and order of the Hon. Barasah (RM) given on 23rd November 2021 in Ogembo PMCC 158 of 2021.

2. On 20/8/2021 the Respondent approached the lower court seeking the following orders vide an application dated 19/8/2023. 1.That this application be certified as urgent and be heard ex parte in the first instance.2. That a temporary injunction do issue restraining the 1st Defendant, its agents or otherwise from advertising, selling and/or interfering with current ownership of motor vehicle registration number KCY 078A pending the hearing and final determination of this application.3. That a mandatory interlocutory injunction do issue compelling the 1st Defendant by itself, its agents and/or servants or otherwise to forthwith return motor vehicle registration number KCY 078A to the applicant/plaintiff pending the hearing and final determination of this application.4. That a mandatory interlocutory injunction do issue compelling the 1st Defendant by itself, its agents and/or servants or otherwise to forthwith return motor vehicle registration number KCY 078A to the applicant/plaintiff pending the hearing and final determination of this suit.,5. That the costs of this application be in the cause.

3. The court issued interim ordersex parte on 20/8/2021 as follows:-1. That the application dated 19th August 2020 be and is hereby certified as urgent.2. That a temporary injunction be and is hereby issued restraining the 1st Defendant, its agents or otherwise from advertising, selling and/or interfering with current ownership of motor vehicle registration number KCY 078A pending the determination of this application.3. That a mandatory interlocutory injunction be and is hereby issued compelling the 1st Defendant by itself, its agents and servants or otherwise to forthwith return motor vehicle registration number KCY 078A to the plaintiff/applicant pending the hearing and final determination of application.4. That the application dated 19th August 2021 be serve for inter parte hearing on 28th September 2021.

4. The Appellant filed a replying affidavit of Ibrahim Mbogo dated 8/9/2021 where they denied any relationship between the 1st Defendant and the Plaintiff.

5. I have read the submissions by the parties. However, they delve into matters that are still alive in the court. I shall therefore eschew all factual issues.

Analysis 6. The 2nd Respondent was aowner and customer in the Appellant bank. The bank sold a vehicle in a public auction. Whether it was a lawful auction or not, there was termination of any right in favour of the owner in the course and against the customer. From my reading the Plaintiff happened to be at the middle of nothing and was drawn into the suit.

7. Whether there was a dispute over the motor vehicle, the court made the following orders upon hearing the parties:-1. That the 1st Defendant herein NCBA Bank Group do pay the applicant a total of Kshs. 3,328,000/=.2. Each party to bear their own costs of the suit.

8. The orders given do not emanate from any of the prayers made by any of the parties. It is therefore unnecessary to determine whether they were lawfully issued. Parties are bound by their pleadings. In the case,of Daniel OtienoMigore v South Nyanza Sugar Co. Ltd [2018] eKLR, Justice A c Mrima stated as doth: -“11. It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission &Ano. v Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in AdetounOladeji (NIG) v Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -““……… it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities' basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”

9. The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of RailaAmoloOdinga& Another v IEBC & 2 others (2017) eKLRfound and held as follows in respect to the essence of pleadings in an election petition: -“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’”

10. The money claimed or awarded at interlocutory stage is in the form of special damages. There needs to be a pleading concerning the same. It is the form earlier agreed in the case of David Bagine v Martin Bundi [1997] eKLR, the Court of Appeal stated as follows: -“It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v. Jackson M. Nyambu t/a sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi AyubSahbani v. City Council of Nairobi (1982-88) IKAR 681 at page 684: "....special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter v Hyde Park Hotel Limited [1948] 64 TLR177 thus:“Plaintiffs must understand that if they bring actions for damages it is for them to prove damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, 'this is what I have lost, I ask you to give me these damages.' They have to prove it" V

11. The first preliminary issue was issuing of ex-partemandatory orders, where it was clear that the vehicle was already sold. Mandatory orders can only be issued where there are special circumstances. They are rarely issuedex parte. It is not open to be issued where the subject matter does not exist.

12. The principles guiding the grant of interlocutory injunctions are now well settled. Those principles were set out in East African Industries v Trufoods [1972] EA 420 and Giella v Cassman Brown & Co. Ltd [1973] EA 358, 360, sets out principles for grant of injunction. The court, stated as follows, though the wisdom of Spry VP, as then he was, as follows: -“The conditions for the grant of an interlocutory injunction are now, I think, 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.”

13. The Court of Appeal in the case in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR the Court restated the law 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.These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. 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. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between. It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.”

14. In the case of JosephKaloki t/a Royal Family Assembly v Nancy AtienoOuma [2020] eKLR, the Court of Appeal, Musinga, Gatembu & Murgor, JJ.A, stated as doth:-28. As this Court stated in Kenya Breweries Limited & another v Washington O. Okeyo[2002] eKLR a mandatory injunction can be granted on an interlocutory application as well as at the hearing but should not normally be granted in the absence of special circumstances but that if a case is clear and which the court thinks it ought to be decided at once, a mandatory injunction will be granted at an interlocutory application.29. The Court also stated in Shariff Abdi Hassan v NadhifJama Adan [2006] eKLR that:“The courts have been reluctant to grant mandatory injunction at the interlocutory stage. However, where it is prima facie established as per the standards spelt out in law as stated above that the party against whom the mandatory injunction is sought is on the wrong, the courts have taken action to ensure that justice is meted out without the need to wait for full hearing of the entire case.”

15. In the locus classicus case of KamauMucuha v The Ripples Ltd. Civil Application No. Nai. 186 of 1992 [1990-1994] EA 388; [1993] KLR 35 the Court of Appeal expressed itself as hereunder:…A court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the Court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted and that is a higher standard than is required for prohibitory injunction.”

16. The lower court was moved vide an application dated 5/9/2021. Subsequently, warrants were issued.

17. The Respondent is not the account holder in the 2nd Respondent. The 2nd Respondent accepted the letter dated 29/11/2019. What the applicant did was to file a suit in a matter in which he has absolutely no interest. He then got orders at the interlocutory stage, thus finalizing the case leaving nothing to be heard.1. In D.T. Dobie & Company (Kenya) Limited v Joseph MbariaMuchina& another[1980] eKLR, Justice C.B. Madan as he then was stated as doth:-Per Lord Justice SwinfenEady in Moore v. Lawson and Another (supra) at p. 419. "It cannot be doubted that the court has aninherent jurisdiction to dismiss an actionwhich is an abuse of the process of thecourt. It is a jurisdiction which ought tobe very sparingly exercised. and only inexceptional cases. I do not think itsexercise would be justified merely becausethe story told in the pleadings was highlyimprobable, and one which it was difficultto believe could be proved". per Lord Herschell in Lawrence v. Lord Norreys, 15. A.C.210 at p. 219. "The summary remedy which has been applied tothis action is only applied in plain andobvious cases when the action is one whichcannot succeed or is in some way an abuse ofthe process of the court." per Danckwerts, L.J. inNagle v. Fielden (1966) 2 Q.B.D. 633 at p. 646. 'It is well settled that a statement of claim should not be struck out and the plaintiff driven from the judgment seat unless the case is unarguable. Accordingly it is necessary to consider whether or not this plaintiff has an arguable case. That is the only question that arises on this appeal." per Salmon, L.J., ibi at p. 651.

18. The courts should be slow to remove parties from the seat of justice. It is untenable to have a matter concluded in terms that are neither pleaded nor part of what was left to the court to decide.

19. The court cannot originate a case, hear it with itself and then made orders. Mandatory ordersshould not be issued at interlocutory stage. A court has no authority to grant orders sought.For example, I may note that the plaintiff is a busybody. However, I cannot strike out their suit without being moved. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, justice Nyarangi JA, as he then was stated as doth;With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority: “By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts …”

20. The Supreme Court in Samuel Kamau Macharia& another v Kenya Commercial Bank Limited & 2 others [2012] eKLRstated that: -(68)A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.

21. In the circumstances, the Appeal is merited. I allow the same. I have not delved into submissions as the case is still active in the court below

Determination 22. I make the following determination: -a.The appeal is allowed with costs of Kshs. 250,750 to the Appellant.b.The matter in the lower court shall be heard before a Court other than Hon. G.N. Barasa (RM)c.This Judgment be served on Hon. G.N. Barasah.d.The order awarding costs of the is equally set aside and in lieu of the orders given, the application dated 19/8/2021 in the lower court is dismissed with costs of Kshs. 20,000/=.e.The matter be set down for hearing.f.The 1st Respondent to pay the auctioneer’s costs in any event.g.This file is closed.

SIGNED, DELIVERED DATED AT KISII VIRTUALLY ON THIS 8TH DAY OF DECEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:M/s Makori & Company Advocate for the AppellantNo appearance for the RespondentCourt Assistant- Roselyn