[2022] KEHC 16199 (KLR)

Ochieng v Oyolo & 2 others (Civil Case E003 of 2022) [2022] KEHC 16199 (KLR) (9 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16199 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Case E003 of 2022

PJO Otieno, J

December 9, 2022

Between

David Onyango Ochieng

Plaintiff

and

Joseph Oyolo

1st Defendant

Alfred Kaiya t/a Pavement Auctioneer

2nd Defendant

County Government of Kakamega

3rd Defendant

Ruling

1. By a plaint dated May 11, 2022 and filed in court the same day, the plaintiff sued the defendant and sought, in the main, an order of permanent injunction directed at the defendants and restraining them from interfering, disposing or completing any sale by auction of a number of chattels list by serial and registration numbers as well as a declaration that the auction sale conducted by the defendants was illegal, unprocedural and fraudulent hence null and void.

2. The facts pleaded to ground the cause of action is that on the set date for the auction, the plaintiff attended to participate but was told that the property had been sold prior to the time set. The plaintiff thus contends that the purported sale was illegal for reasons that there was sale before the appointed time and that the person who conducted the sale was not a licensed auctioneer, not an employee of either the 2nd or 3rd defendants and was thus without capacity to enter into a contract with the 3rd defendant.

3. Contemporaneous with the plaint was filed a notice of motion seeking a temporary injunction pending suit purposed and limited to restrain the completion of the sale by transfer of the sold items.

4. The grounds set out to premise the application was a repeat of the grounds of the suit that there was a sale conducted before the appointed time and by a person not authorized to conduct the sale on the basis that he is not a licensed auctioneer. The same grounds were reiterated in the affidavit sworn by the plaintiff in support of the application.

5. Having been filed under a certificate of urgency, the matter was placed before a judge the same date it was filed and directions were given for hearing of the matter with an order that the status quo then prevailing be maintained.

6. When served with the application, only the 3rd respondent filed a replying affidavit by one John Koveti, the head of procurement for the 3rd defendant. His position was that the plaintiff lacks locus standing to bring the action on behalf of the alleged persons who attended the auction and that there was indeed a contract executed between Pavement Auctioneer Ltd and 3rd defendants pursuant to Public Procurement and Asset Disposal Act and the regulations made thereunder. The 2nd defendant was said to be a total stranger to the 3rd defendant the deponent added that it was by law limited to give the contract to qualified bidders only who were then expected to act professionally and with due diligence. He conceded that the sale by the said contracted auctioneering service provided was advertised for April 26, 2022, with a condition that members of the public interested in bidding would pay a refundable deposit a sum of Kshs 50,000 and be given bidding numbers. He asserted that the plaintiff has not provided any evidence of participation at the auction as much as he has not identified the item he intended to bid for hence there is no demonstration of any wrongdoing against him and thus cannot be entitled to any of the orders sought.

7. It was then sworn that the auction did take place on the April 26, 2022, as advertised, and in compliance with the Auctioneers Act and rules made thereunder and that 26 motor vehicles sold to third parties who are not parties for the suit and who are potentially at risk of being prejudiced by any orders issued by the court in favour of the plaintiff without being accorded the right to be heard.

8. The plaintiff was accused of failure to demonstrate a prima facie case and prejudice if the orders are not granted hence he had not fitted himself within the principles of grant of a temporary injunction as settled in the case ofGiela –v Cassman Brown [1973] EA 358.

9. In addition it was averred that even though the court gave interim orders on the May 11, 2022, the same orders were not served upon the 3rd defendant till the May 17, 2022, by which time the 3rd defendant had released the sold chattels to the purchasers and hence the orders when served had been overtaken by events. The copy of the order served and documents showing release of the motor vehicles and request to the National Transport Safety Authority for transfer were exhibited to court to substantiate the 3rd respondent’s position with a prayer that the application be dismissed.

Submissions: 10. The application was directed to be canvassed by way of written submissions pursuant to which order the applicant filed submissions on July 7, 2022 while the 3rd respondents did so on the July 5, 2022.

11. In the submissions filed, the applicant asserts having established a prima facie case thus being entitled to the orders sought and cites Standard Chartered Bank Limited v Intercom Services Limited [2004] eKLR for the preposition that the court never lends its assistance to a man whose cause of action is founded upon an immoral or illegal act.

12. The contention by the plaintiff for the alleged illegality is evidently grounded upon the letter by the Auctioneers Licensing Board dated April 28, 2022 wherein the board says the said defendant is not licensed to trade as an auctioneer. In those submissions the plaintiff’s stand is that the sale ought to be nullified because the contract between the 3rd defendant and the 2nd defendant was illegal null and void.

13. On its part, the 3rd defendant denies any dealings with the 2nd defendant and clarifies that its contract for auctioneering services is with a Corporate called Pavement Auctioneers Limited, a Limited Company separate and not the same as the 2nd defendant. On that basis it denies any engagement with the 1st and 2nd defendant then contends that the plaintiff suit thus cannot disclose a prima facie case. The decisions in Stek Cosmetics Limited v Family Bank [2020] eKLR andNguruman Limited v Jan Bonde Nielsen [2014] eKLR were cited on what constitutes a prima facie case. In both cases the court of appeal stressed the fact that an applicant with the burden to establish a prima facie case must demonstrate an apparent right which has been infringed by the opposite party to call for an explanation by such opposite party.

14. On irreparable loss awaiting to visit the applicant, if the injunction is not granted, the 3rd respondent cited Stek Cosmetics case (Supra), once again while stressing the fact that the 3rd respondent being government is unlikely to be unable to effect any compensation awarded to the plaintiff in the event the suit succeeds.

15. Lastly, on balance of convenience, the decision in Susan Wangari Mburu v Eldoret Water & Sanitation Company Limited [2020] was cited for the proposition that the balance of convenience test calls upon the court to consider which of the two options; grant or denial of injustice would portend lower risk of injustice to a party.

Analysis: 16. In this suit, it is common ground that the 3rd defendant awarded a tender for provision of auctioneering services pursuant to which an auction sale was conducted on the April 26, 2022 and the items sold released to the purchaser between 11th and May 16, 2022. The fact of sale and release have not been disputed. In fact it is expressly pleaded in the plaint and the application that there was indeed a sale on April 26, 2022. What is disputed is whether the person who conducted a sale was authorized to conduct the business of an auctioneer.

17. The point of departure came out that while the plaintiff said tender was awarded to and sale conducted by the 2nd defendant, trading as Pavement Auctioneers, the 3rd defendant’s position is that the tender was awarded to Pavement Auctioneers Limited and not the 2nd defendant. While maintaining that the contract was awarded to the 2nd defendant and auction sale staged and conducted by the 2nd defendant the plaintiff ambivalently exhibits an agreement between the 3rd defendant and Pavement Auctioneers Limited and an auctioneers licences to one Alfred Kisiah Kaiya t/a Pavement Auctioneers.

18. That self same Alfred Kisia Kaiya t/a Pavement Auctioneers is the 2nd defendant. It is difficult to understand how the plaintiff maintains that the 2nd defendant is not licensed to trade as an auctioneer and therefore should not have conducted the auction yet his own exhibits and assert otherwise. The court finds that the pleadings by the plaintiff are not in consonance and congruence with the evidence availed. The situation is however made more uncertain by the position taken by the 3rd defendant and the failure by the 2nd and 1st defendant to file any responses to the action and the application.

19. That however does not shift the legal and evidentiary burden upon the plaintiff as the person who could loss if no material, at all, was availed. The plaintiff needed to avail evidence; on a prima facie basis that indeed the 2nd defendant is not licensed to contact auctioneering business. He has discounted and disputed own pleadings by exhibiting documents to show that the 2nd defendant is indeed licensed. Such is a situation that in inconsistent with a prima facie case expected of the plaintiff.

20. In addition, the document exhibited by the plaintiff and marked “DOO2” clearly set out the conditions for bidding for the items slated for auction. Condition No 3 is expressed mandatorily that an interested bidder pays a refundable deposit of Kshs 50,000 to acquire a bidding number. Being a conditioned auction, the plaintiff had a duty to place himself as a qualified bidder to be able to contest the happenings at the auction as being an infringement on his participation and legitimate expectation. Failure to pay the refundable deposit would automatically bar him from bidding and then make an assertion or evidence that he prejudices himself. The court finds that the plaintiff has not surmounted the hurdle of exhibiting a prima facie case with a probability of success. He has not demonstrated that his challenge against the 2nd defendant is capable of succeeding, instead, as said before, he has demonstrated that that claim may not be sustainable as pleaded in the reigning pleadings. More importantly, failure to show that he had met the prequalification to bid by paying the refundable deposit puts to doubt whether he was really a potential bidder on the date the sale was stayed.

21. Without formally determining the fate of the suit, at this interlocutory stage, the court finds that noprima facie case has been exhibited.

22. To this court, the presence of a prima facie case is the cornerstone of consideration whether or not to grant an interlocutory injunction. It is the cornerstone because, temporary injunction is intended to preserve rights (substratum of litigation) for the determination by the court so that if the plaintiff succeeds, he ends up with a substantial decree not a phantom one. In Showid Industries v Guardian Limited [2002] eKLR, the court had thus to say:-“An injunction is granted sparingly and only in exceptional circumstances such as where the applicant case is very strong and straight forward. Moreover, as a remedy is an equitable one, it may be denied where the applicant’s conduct does not meet the approval of the court of equity.....”

23. Where there is no prima facie case established then no meaningful purpose is served by delving into the questions of irreparable loss and balance of convenience. InNguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR court did say as much in the following words:“If prima facie case is not established, the irreparable injury and balance need no consideration”.

24. Being guided by that pronouncement by the court of appeal, and having determined that no prima facie case has been demonstrated, the application fails and it is hereby dismissed.

25. The costs are awarded to the 3rd defendant who opposed the application.

26. Matter stood over to February 14, 2023 for case conference.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 9TH DAY OF DECEMBER, 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for Nafuye for the applicant/plaintiffNo appearance for Imbosa for the respondentCourt Assistant: Polycap Mukabwa