[2022] KEHC 10768 (KLR)

Okoiti v Leley & another; Intergovernmental Relations Technical Committee & 4 others (Interested Parties) (Anti-Corruption and Economic Crime Petition E001 of 2022) [2022] KEHC 10768 (KLR) (Anti-Corruption and Economic Crimes) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10768 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crime Petition E001 of 2022

EN Maina, J

May 19, 2022

Between

Okiya Omtatah Okoiti

Applicant

and

Peter Leley

1st Respondent

Monica Wambua

2nd Respondent

and

Intergovernmental Relations Technical Committee

Interested Party

Ethics and Anti-Coruption Commission

Interested Party

Principal Secretary, State Department of Devolution

Interested Party

Auditor General

Interested Party

Attorney General

Interested Party

Ruling

Background 1. This ruling is in respect of the petitioner/applicant’s notice of motion dated January 14, 2022 filed under a certificate of urgency of even date. The same is supported by the affidavit of the petitioner/applicant sworn onJanuary 14, 2022.

2. The Application was filed contemporaneously with a Petition which seeks, inter alia, a declaration that the 1st Respondent’s decision to handle public funds through the personal account of the 2nd Respondent is unlawful; orders of prohibition stopping the Respondents from using their personal accounts to handle public funds; an order that the Respondents return to the 1st Interested Party all public funds held in the personal account of the 2nd Respondent and an order annulling/quashing a letter Ref. IGR/LGL/10/20/Vol. II dated 13th December 2019.

3. The Application to which this ruling pertains is expressed to be brought under articles 20,22,23(3), 50(1),159(2)(d),162(2)(a), 165(5) and 258 of the Constitution, and Sections 19 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules2013. The same seeks orders as follows:-“1Spent.2. Thatpending the hearing and determination of this application inter partes, a conservatory order does issue freezing all operations on personal bank account number 0100005155XXX which the 2nd Respondent holds at CFC Stanbic Bank, Kenyatta Avenue Branch, Nairobi.3. Thatpending the hearing and determination of this application inter partes, an injunction order does issue restraining the 1st and 2nd Respondents from in anyway howsoever transacting any public funds through personal bank account number 00100005155XXX which the 2nd Respondent holds at CFC Stanbic Bank, Kenyatta Avenue Branch, Nairobi.4. Thatthe hearing and determination of this application inter partes, the Auditor General, the 4th Interested Party, be ordered to conduct a forensic audit of all Intergovernmental Relations Technical Committee accounts and file a report in this Honourable Court showing the flow of money from the Intergovernmental Relations Technical Committee to the personal bank account number 0100005155XXX which the 2nd Respondent holds at CFC Stanbic Bank, Kenyatta Avenue Branch, Nairobi, and then onto any third parties.5. Thatfollowing the hearing and determination of this application inter partes but pending the hearing of the Petition, a conservatory order does issue freezing all operations on private bank account number 0100005155XXX which the 2nd Respondent holds at CFC Stanbic Bank, Kenyatta Avenue Branch, Nairobi.6. Thatfollowing the hearing and determination of this application inter partes but pending the hearing of the Petition, an injunction order does issue restraining the Respondents from in anyway howsoever transacting any public funds through private bank account number 0100005155XXX which the 2nd Respondent holds at CFC Stanbic Bank, Kenyatta Avenue Branch, Nairobi.7. Thatconsequent to the grant of the prayers above, the Honourable Court be pleased to issue such further directions and orders as may be necessary to give effect to the foregoing orders.7. The Cost of the application be in the cause”

4. In the supporting affidavit and the supplementary affidavit sworn on 10th February 2022 the petitioner deposes that the application is extremely urgent for reasons that the 1st Respondent has unlawfully and irregularly transferred public funds amounting to Kshs.180,000,000 from the Intergovernmental Relations Technical Committee (“the 1st Interested Party” or “IGRTC”) and deposited the funds in the 2nd Respondent’s personal account number 0100005155XXX held at CFC Stanbic Bank, Kenyatta Avenue Branch, Nairobi. He deposes that the subject funds were transferred from the National Treasury to the State Department of Devolution on or about 19th October, 2021 and then to IGRTC for purposes of valuation of public assets but as the accounting officer of the IGRTC the 1st Respondent purportedly used his discretion to unlawfully transfer the money to the 2nd Respondent’s personal account. The Petitioner/Applicant contends that the decision is unlawful, unconstitutional, null and void.

5. The Petitioner/Applicant states that he is apprehensive that the large sums of public funds which have been deposited in the 2nd Respondent’s personal account are at risk as the account is not subject to the checks and balances which govern public funds so as to safeguard public money. The Petitioner/Applicant avers that the instructions for transfer of the funds were made vide a letter Ref: IGR/LGL/10/20/Vol. II, dated 13th December, 2019, through which the 1st Respondent informed the Branch Manager, CFC Stanbic Bank, Kenyatta Avenue Branch, that large sums of public funds belonging to the Committee would be channeled through the 2nd Respondent’s personal account number 0100005155XXX held at the branch. He contends that the 1st and 2nd Respondents have through this scheme conspired and positioned themselves to steal public funds by diverting the 1st Interested Party’s funds to the personal account to which the 1st and 2nd Respondents have exclusive and unfettered access.

6. The Applicant/petitioner is also aggrieved that there was no public participation in the decision to use the personal account to handle the Committee’s funds. He asserts that to enable this Court determine this suit on the merits, it is critically important that a forensic audit of all the IGRTC accounts and the Respondents’ personal accounts be conducted by the Auditor General to show the flow of money from IGRTC to the personal account and to any third parties. The Petitioner/Applicant avers that any delay in the hearing of the Petition would defeat the object and purpose of both the application and the petition as the same would be rendered nugatory.

7. The applicant further avers that the respondents will suffer no prejudice should this court grant the orders sought so as to keep the matter alive and to allow for the hearing and determination of the petition. He deposes that the application meets the purposes of justice and equity and the overarching purpose of constitutional integrity and the rule of law and hence the orders sought should be granted.

8. The 1st Respondent Peter Leley and the 2nd Respondent, Monica Wambua opposed the application through their respective replying affidavits both sworn on 21st January 2022.

Response by the 1st Respondent 9. The 1st Respondent states that he is the Chief Executive Officer of the 1st Interested Party (IGTRC) and that at all material times he acted in his official capacity and not personal capacity as insinuated by the Petitioner. He avers that the application and affidavits of the Petitioner are based on information that is false, incomplete and untrue and that the application is unmerited, misleading and an abuse of the court process.

10. The 1st Respondent avers that the 1st Interested Party (IGTRC) is not yet a National Government parastatal or Commission and is therefore not answerable to the Public Service Commission but to the Summit as required under the Intergovernmental Relations Act and for that reason, it receives funds directly from the Treasury as opposed to the Ministry of Devolution.

11. He avers that there has been no unlawful transfer of Kshs. 180,000,000 into the private account of the 2nd Respondent as alleged by the Petitioner and that the only funds in the said private account are the daily subsistence allowances for the 2nd Respondent which are in any case subject to audit; that the Petitioner has not given any proof of the alleged illegal transfer of public funds; that the Ksh.180,000,000 was transferred to the IGTRC account on October 19, 2021 and the letter referred to by the Petitioner on the purported conspiracy to steal was issued on December 13, 2019 and further there is no correlation between the letter and the funds. He further states that the letter to Stanbic Bank was to facilitate credits into the 2nd Respondent’s account to enable her hold imprest to conveniently access funds to undertake her duties; that the Kshs.180,000,000 that he is accused of transferring to a private account can be adequately accounted for through the annual audits conducted by the office of the Auditor General and that the exercise of valuation and transfer of public assets was approved by the Intergovernmental Budget and Economic Council.

12. The 1st Respondent also avers that the use of the impugned funds is a going concern and is still pending. He states that the IGTRC has conducted the exercise in 3 phases namely:- phase 1 – completion, identification, verification, validation and transfer of assets of the defunct 175 local authorities; phase 2- audit and transfer of assets and liabilities of devolved functions; and phase 3- audit and transfer of assets and liabilities of parastatals and semi-autonomous agencies, which is currently pending.

13. The 1st Respondent contends that the Petitioner has not established a prima facie case as pleaded to warrant grant of the orders sought. He urges this court to disallow the application as it is frivolous, vexatious and a waste of time.

Response of the 2nd Respondent 14. On her part, the 2nd Respondent avers that she is the Assistant Director- Functional Analysis Costing and Transfer of Assets and Liabilities and Ag Director Corporate Affairs at the IGRTC.

15. She deposes that the bank account number 0100005155XXX , Kenyatta Avenue Branch, Stanbic Bank was her salary account which was also used for her Daily Subsistence Allowance. She deposes that the same was opened on October 23, 2017and closed on December 17, 2020. She concedes that the 1st Respondent wrote to the Bank on December 13, 2019 to facilitate credits to her account due to delays she was experiencing and to enable the smooth running of the project.

16. She avers that the allegations of the Petitioner are fabricated and made in bad faith; that the sum of Kshs. 180,000,000 was transferred to the IGRTC account on December 13, 2019and there is no relation between the funds and the 1st Respondent’s letter dated December 13, 2019. She states that these proceedings and the publication of articles in the Star Newspaper on January 19, 2022 in respect to the issues herein are injurious to her reputation as a civil servant.

17. The 2nd Respondent further avers that the letter dated December 19, 2019 is an internal IGTRC document and that the Petitioner obtained it illegally as he did not request for the information through the proper channels; that the information was obtained in contravention of the Access to Information Act and the right to information guaranteed in the Constitution and that the Petitioner further continues to violate her right to privacy by attempting to access her accounts. She asserts that the Petitioner has not made out a case against her and this application is not merited and should be dismissed

Response by the 4th Interested Party 18. The 4th Interested Party filed a replying affidavit sworn by Milcah Ondiek, Advocate and Head of its Legal Services in which she deposes that as an independent office established under the Constitution with the mandate to audit public resources, they are a necessary party to these proceedings and would comply with the Orders of the court so as to aid the court in meeting the ends of justice.

Submissions of the petitioner 19. The petitioner/applicant submits that this court has jurisdiction to grant an order of temporary injunction under article 23(3)(b) as read with article165(3) of the Constitution; that he has established a prima facie Case with overwhelming chances of success to warrant the grant of conservatory orders as the Petition seeks to stop the irregular use of the 2nd Respondent’s personal bank account to handle public funds. He contends that unless the Conservatory Orders sought herein are granted, the Respondents are likely to misuse the said public funds to the tune of Ksh. 180 million, which they may never be in a position to refund to the Government in the event that the Petition is successful. To support this submission, the Petitioner/Applicant cited the case of Mrao Ltd v First American Bank Ltd & 2 others [2003] KLR 125.

20. Secondly, the Petitioner submits that unless the conservatory orders sought in the application are granted, the suit will be rendered nugatory. He asserts that this case raises serious issues concerning the violation of the Constitution, the Public Finance Management Act, 2012 and the Anti-Corruption and Economic Crimes Act, 2003. He states that no prejudice will be suffered by the respondents because the public money in issue will be in the safe custody of the Bank and upon determination of the Petition, the money will revert to its lawful owner, the 1st Interested Party.

21. Thirdly, the applicant submits that a grant of stay is extremely critical and in the public interest as it will shield the applicant and the public from irreparable injury, as well as protect the petition from being rendered moot.

22. Finally, the Applicant submits that article 229(5) of the Constitution requires the Auditor General to audit and report on the accounts of any entity that is funded from public funds and it is not in dispute that the 4th Interested Party is mandated by law to audit, among others, the Intergovernmental Relations Technical Committee; that this court’s power to order discovery and the like is provided for in section 22(a) of the Civil Procedure Act; that article 35 (1) & (3) of the Constitution as read together with section 5 of the Access to Information Act, No. 31 of 2016, guarantees every citizen of the right to access any information that is held by another, and it imposes an obligation on the State to disclose information. He cites the case of Rafiki Microfinance Bank Ltd v Zenith Pharmaceuticals Ltd [2016] eKLR and the case of Oracle Productions Limited v Decapture Limited & 3 others [2014] eKLR in support.

23. The Petitioner/Applicant prays that this Honourable Court grant appropriate reliefs underarticle 23 of the Constitution, which provides that a court "may grant appropriate relief, including a declaration of rights". He urges that the appropriate relief should be one that is an effective remedy for purposes of enforcing the Constitution, human rights and the rule of law. He contends that this Court is clothed with requisite jurisdiction to grant any other reliefs and/or orders that will ensure that the rights in the Constitution are enforced and protected from violation. He places reliance on the South African cases of Fose v Minister of Safety and Security [1997] (3) SA 786(CC)1997(7) BCLR 851 and Hoffmann v South African Airways (CCT17/00) [2000] ZACC 17.

Submissions of the 1st Respondent 24. The 1st Respondent framed two issues: whether the applicant has satisfied the requirements for grant of the injunctive reliefs sought and whether the applicant has met the threshold for grant of conservatory orders.

25. Learned Counsel for the 1st Respondent submitted that the Applicant has not satisfied the three pertinent requirements for grant of injunctive reliefs laid in the case of Giella v Cassman Brown Co. Ltd[1973] E.A and restated in the case of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR; that the Applicant is obligated to establish a prima facie case, demonstrate that he would suffer irreparable injury should the injunction be denied and that the balance of convenience shifts in his favour. Counsel submitted that a prima facie case is a higher standard than an arguable case and further that it is not sufficient to merely assert but the evidence must show an infringement of a right. Counsel stated that the Applicant has not adduced any evidence to prove that public funds are in danger of being stolen or misused and that the Applicant refers to a bank account that was closed in October 2020 while the subject funds were received by the 4th interested party a year after the account was closed.

26. Counsel further submitted that the Applicant has not demonstrated any loss whether current or future; that he has not demonstrated that the funds have been transferred to any private accounts and that the Applicant has also not shown any inconvenience likely to be suffered in this case should the injunction be denied. Counsel submitted that the Applicant’s only evidence is a letter written to CFC Stanbic Bank whose purpose was to only assist in the day-to-day transactions by the 2nd Respondent. To support his submissions Counsel relied on the case of Pius Kipchirchir Kogo v Frank Kimeli Tenai[2018] eKLR.

27. Counsel for the 1st Respondent further submitted that the prayers for a mandatory injunction directing that a forensic audit be conducted in the 1st Interested Party’s accounts is not merited. Counsel stated that a mandatory injunction can only be granted in very rare circumstances where an applicant demonstrates special circumstances, something which the Petitioner/Applicant herein has not done. Counsel asserted that the Auditor General conducts an audit every financial year and prepares a report that is tabled in parliament and there is no special need for an audit before the allocated time. To buttress his submissions Counsel cited the case of Breweries Limited v Washington O Okeya [2002] eKLR and the case of Nation Media Group v John Harun Mwau [2014] eKLR.

28. Counsel argued that the Applicant has not met the threshold for a grant of a conservatory order and submitted that the Petitioner/Applicant has failed the test in the case of the Law Society of Kenya v Office of the Attorney General & another; Judicial Service Commission (Interested Party)[2020] eKLR; that the Applicant has not shown any violation of his constitutional rights by the 1st Respondent and that the Applicant ought to have demonstrated that there would be a real danger that the public would be prejudiced if the orders are denied but he has not done so.

29. Counsel also contended that the Applicant should not be granted audience on the basis of illegally obtained evidence; that the Applicant has not explained how he obtained the internal letter he produced before this court; that he flouted the procedures for obtaining information from public institutions and that no request was made to the 1st Interested Party. For this Counsel relied on the following cases:- Okiya Omtatah Okoiti v Attorney General & 4 others [2015] eKLR and Njonjo Mue & another v Chairperson of Independent Electoral and Boundaries Commission & 3 others [2017] eKLR.

Submissions of the 2nd Respondent. 30. Counsel for the 2nd Respondent echoed the submissions of the 1st Respondent and stated that the Applicant has not met the conditions for grant of an order for freezing of the non-existent account; That the Applicant has not met the threshold in Giella v Cassman Brown (Supra); that the Petition is based on unsubstantiated facts; that the account complained of was closed in October 2020 and that the money alleged to have been received by the 2nd Respondent was disbursed to the accounts of the 1st Interested Party one year after that. Counsel stated that the entire case is based on unreasonable misapprehension of facts; that the 1st Respondent’s affidavit shows that the money was disbursed in 2021 and not in 2020; That the 2nd Respondent has produced her entire account statements from the date of opening to closure to show that she did not receive the alleged funds and that therefore there is no prima facie case against the respondents. Counsel cited the cases of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR and the case of Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & Another[2016] eKLR in support of the aforegoing submissions.

31. Counsel further submitted that the Petition and the Application are premised on illegally obtained evidence; that the Petitioner has not shown how he accessed the letter he relies upon and that he violated the privacy of the 2nd Respondent by relying on illegally obtained documents. Counsel contended that this court cannot also grant prayers not specifically pleaded in the Petition. Counsel stated that the petitioner is bound by his pleadings and cited the case of Caltex Oil Kenya Limited v Rono Limited[2016] eKLR. Counsel urged this court to dismiss the application.

Issues for determination 32. From a review of the application, the responses filed, the submissions of the respective parties and the law, the issues arising for determination are:1. Whether the interlocutory reliefs sought by the Petitioner/Applicant should be granted; and2. Who should bear the costs of the Application?

Analysis and determination 33. The gist of the Petitioner/Applicant’s petition and Notice of Motion is that large sums of public funds have been deposited in the 2nd Respondent’s personal bank account number 0100005155XXX held at CFC Stanbic Bank, Kenyatta Avenue Branch, Nairobi, which funds are at risk of being misappropriated and/or embezzled. He seeks conservatory orders to freeze the 2nd Respondent’s account and an injunction to restrain the Respondents from using their personal accounts to handle public funds.

34. It is trite law that in order to obtain a conservatory order an applicant must satisfy three key principles. The applicant must firstly demonstrate that he has a prima facie case, secondly, that he shall suffer prejudice and there is that there is imminent danger that the petition will be rendered nugatory if the orders are not granted and lastly that it is in the public interest to grant the conservatory order. In the case of Law Society of Kenya v Office of the Attorney General & another; Judicial Service Commission (Interested Party) [2020] eKLR the court stated, and I fully agree:-“a)First, an Applicant must demonstrate an arguable prima facie case with a likelihood of success, and to show that in the absence of the conservatory orders, he/she is likely to suffer prejudice.b)The second principle is whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights.c)Thirdly, the court should consider whether, if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory.d)The final principle for consideration is whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order.”

35. These principles were reiterated in the case of Kenya Association of Manufacturers & 2 others v Cabinet Secretary - Ministry of Environment and Natural Resources & 3 others [2017] eKLR where it was held that:“In an application for a conservatory order, the court is not invited to make any definite or conclusive findings of fact or law on the dispute before it because that duty falls within the jurisdiction of the court which will ultimately hear the substantive dispute. The jurisdiction of the court at this point is limited to examining and evaluating the materials placed before it, to determine whether the applicant has made out a prima facie case to warrant grant of a conservatory order. The court is also required to evaluate the materials and determine whether, if the conservatory order is not granted, the applicant will suffer prejudice. Thirdly, it is to be borne in mind that conservatory orders in public law litigation are meant to facilitate ordered functioning within the public sector and to uphold the adjudicatory authority of the court in the public interest.”

36. Applying the above principles to this case and considering the material placed before this court by the Respondents, it is apparent that Petitioner may have been mistaken on the factual basis of the Petition. In her replying affidavit the 2nd Respondent has annexed bank statements Exh. 3(a) for the impugned bank account number 0100005155XXX held at CFC Stanbic Bank, Kenyatta Avenue Branch, for the entire period in which it was in operation, October 24, 2017 to December 17, 2020. A perusal of the bank statement reveals that prima facie no sum of Kshs. 180,000,000 was transacted through the account. The Petitioner’s allegation that the funds were transferred to the account on October 19, 2021 may also not be factually correct given the respondent’s evidence that the same was closed by the 2nd Respondent almost a year earlier. Were this to be true there would be no evidence that the 2nd Respondent received the alleged funds whether in that account or any other account. As such the Petitioner/Applicant has not demonstrated a prima facie case with a likelihood of success even though the issues he has raised would be of great public importance.

37. In the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR it was held:“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the applicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.” (Emphasis mine)

38. In Jan Bonde Nielsen (Supra), the court expounded the definition of prima facie case as follows:-“(24)Starting with what amounts to a prima facie case, the learned Judges expressly accepted the definition given in Mrao Ltd. –v- First American Bank of Kenya Ltd. & 2 Others, (supra). In that case, a prima facie case was defined as follows:“In civil cases, a prima facie case is 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 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 but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case”.On this definition, the learned Judges expressly stated: -“We adopt that definition save to add the following conditions by way of explaining it. 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 urgent necessity to prevent the irreparable damages 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. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title, it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or as otherwise put, on a preponderance of probabilities”. (underlining mine)

39. The Petitioners/Applicant having failed to establish a prima facie case against the Respondents, it would be an exercise in futility to consider the remaining two limbs of the test for conservatory orders that is whether there is imminent danger that the petition will be rendered nugatory if the orders are not granted and the issue of public interest.

40. As for the restraining orders the Petitioner/Applicant was required to satisfy the principles in Giella v Cassman Brown (Supra). In the case of Wild Living Company Limited v Varizone Limited [2019] eKLR it was held that:-“It is trite law that there are those conditions to be met before an interlocutory injunction can be granted as exposited in Giella v Cassman Brown Co. Ltd 1973 E.A. 358. “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 harm which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on a balance of convenience.”

41. It is my finding that the Petitioner has not satisfied the conditions set out above and it may very well be that he has misapprehended the facts or that he is relying on information that is not very factual. Given the evidence placed before this court by the Respondents the facts would require to go for trial so as to establish whether the account was in place at the time and whether a sum of Kshs. 180 million was transferred thereat upon the instructions of the 1st Respondent.

42. The balance of convenience does not also tilt in the Petitioner/Applicant’s favour but in favour of the 2nd Respondent whose account would be frozen.

43. In Bryan Chebii Kipkoech v Barnabas Tuitoek Bargoria & another[2019] eKLR, the court held as follows on this limb:“The court should issue an injunction where the balance of convenience is in favor of the plaintiff and not where the balance is in favor of the opposite party. The meaning of balance of convenience in favor of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favor of the plaintiffs, the inconvenience caused to the plaintiff would be greater than that which would be caused to the defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the plaintiffs to show that the inconvenience caused to them would be greater than that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer. In other words, the plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than which is likely to arise from granting it.”

44. I do also find that prayer 4 of the application as drafted is misconceived. This is given that the authority to conduct a forensic audit by the Auditor General is provided for undersection 37 of the Public Audit Act and the correct procedure would be for Parliament to make a request to the Auditor General for a forensic audit of the IGRTC’s accounts. That Section states“S.37. The Auditor-General may, upon request by Parliament, conduct forensic audits to establish fraud, corruption or other financial improprieties.”

45. The petitioner has not demonstrated that this avenue was attempted but it failed. Moreover, the Auditor General does not require a court order to carry out an audit.

46. In the upshot, it is my finding that the application is not merited and should fail. The same is dismissed.Costs shall be in the cause.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19TH DAY OF MAY, 2022E.N. MAINAJUDGE