[2022] KEHC 14769 (KLR)

Raindrops Limited v Chief Magistrate’s Court, Malindi & another (Miscellaneous Application E002 of 2022) [2022] KEHC 14769 (KLR) (1 November 2022) (Directions)

Neutral citation: [2022] KEHC 14769 (KLR)

Republic of Kenya

In the High Court at Malindi

Miscellaneous Application E002 of 2022

SM Githinji, J

November 1, 2022

IN THE MATTER OF:AN APPLICATION FOR JUDICIAL REVIEW ORDERS UNDER SECTIONS 8 & 9 OF THE LAW REFORM ACT CAP 26 LAWS OF KENYA AND ORDER 53 OF THE CIVIL PROCEDURE RULES. IN THE MATTER OF:AN APPLICATION BY RAINDROPS LIMITED FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS AND IN THE MATTER OF:THE ILLEGAL, UNLAWFUL AND FATALLY FLAWED PROCEEDINGS IN THE CHIEF MAGISTRATES COURT CIVIL PROCEEDINGS KNOWN AS MALINDI CMCC NO. E182 OF 2022 COUNTY GOVERNMENT OF KILIFI VERSUS SBM BANK (KENYA) LIMITED & RAINDROPS LIMITED AND IN THE MATTER OF:THE MAGISTRATE’S COURT CAP 10 LAWS OF KENYA & CIVIL PROCEDURE ACT, CAP 21 LAWS OF KENYA & THE CONSTITUTION OF KENYA BETWEEN

Between

Raindrops Limited

Applicant

and

Chief Magistrate’s Court, Malindi

1st Respondent

County Government of Kilifi

2nd Respondent

Directions

Directions 1. The applicant filed a Notice of Motion dated October 14, 2022seeking the following orders; -1. That this Application be certified urgent and be heard as soon as it is convenient for this honourable court.2. That this honourable court be pleased to clarify and or explain for the avoidance of doubt its order or the Ruling delivered on 15th day of August, 2022 by Honourable Justice Olga Sewe that the leave granted operated as stay of the proceedings, order dated July 6, 2022, extended on the 20th day of July, 2022 and any further consequential proceedings and orders in Malindi CMcc No.E182 of 2022 County Government of Kilifi Versus SBM Bank (Kenya) Limited & Raindrops Limited and without the extension of the orders dated July 6, 2022 SBM Bank Kenya Limited could proceed or continue making payment of monthly salaries being Kenya Shillings 3,696,015/= as was ordered by the Court of Appeal in Civil Application No.84 of 2016 County Government of Kilifi v Raindrops and in the High Court in Malindi HCCC No.9 of 2015 Raindrops Limited v County Government of Kilifi.3. That the Costs of the application be provided for.

2. The application is anchored on the grounds on the face of the application and the Supporting Affidavit of Shaib Hamisi a director of the Plaintiff Company stating that on 15th August, 2022 the Court allowed an application which sought leave to commence Judicial Review and further that the leave operated as stay of proceedings, order dated 6th July, 2022, extended on the 20th day of July, 2022 and any further consequential proceedings and orders in Malindi Cmcc No.E182 of 2022 County Government of Kilifi V SBM Bank (Kenya) Ltd & Raindrops Limited which orders were granted.

3. It was further stated upon service of the said orders upon SBM Bank Kenya Limited, the Bank complied with the same and continued making payments or was the norm until the 2nd respondent disputed the payments alleging that the injunctive orders were still in effect and wrote to the Bank threatening to cite them for contempt of court orders.

4. Mr Shaib Hamisi deponed that upon court granting leave on August 15, 2022, the orders were extracted and placed before the magistrate in Malindi Cmcc No. E182 of 2022 County Government of Kilifi v SBM Bank (Kenya) Limited V Raindrops Limited and when the matter came up for mention on August 24, 2022, the learned magistrate did not extend the injunctive orders. That despite the orders of this court, the bank requested for clarity of the orders dated August 15, 2022 whether the payment of monthly salary should be made.

Analysis and Determination 5. From the application, the issue for determination is whether the injunctive orders on August 15, 2022 are still in force. The applicant’s quest is clarity regarding the effect of the said orders in light of the same having not been extended on August 24, 2022 when the matter was placed before the lower court for mention. It is trite that the court has unfettered discretion to discharge or vary an injunction if the ends of justice demand so. This position was well settled in the case of St Patrick Hills Schools LtdvBank of Africa Kenya Ltd [2018] eKLR where the court held that;"Similarly, this court has unfettered discretion to discharge or even set aside an injunction order if the ends of justice so demand, or if the injunction does not serve the ends of justice it was intended to serve when it was issued. Questions such as whether it is unjust to maintain the injunction in force or it is otherwise unjust and inequitable to let the order remain will be asked when considering an application to discharge an injunction.”

6. The issue at hand is over pending salaries of Kshs. 3,696,015/= that the Bank ought to pay to the applicant’s employees. In their letters that their advocates wrote, dated September 21, 2022 and October 4, 2022, the 2nd respondent maintains that the injunction issued on July 6, 2022 is still in place.

7. I have looked at the ruling by my sister Lady Justice Sewe dated August 15, 2022 paragraph 11 part (iii) states that; -An order of mandamus directing the respondent to lift and set aside the injunctive orders dated the July 6, 2022, the extension thereof and any consequential order that may have been issued in Malindi Cmcc No. E182 of 2022; County Government of Kilifi v SBM Bank (Kenya) Limited & Raindrops Limited.

8. I have not seen any document or evidence to demonstrate that the orders issued on August 15, 2022 were complied with. The said order of mandamus was clear that the injunctive orders were to be lifted and set aside. The same is yet to be done. The ruling by my sister Lady Justice Olga Sewe is yet to be appealed, reviewed or set aside.

9. I wish to remind the parties that interim injunctions do not suspend obligations of parties to their contracts. The money held by the Bank is what is rightfully owed to the applicant’s employees thus there is no legal or actual basis to withhold the same. Furthermore, the said injunctive orders were never extended when the matter was mentioned on August 24, 2022. The Chief Magistrate is bound by the orders and directions issued on August 15, 2022 and as such ought to have complied with the order of mandamus directing her to suspend and set aside the injunctive orders dated July 6, 2022.

10. In the premises, I find that the orders vide the Ruling dated August 15, 2022 should be complied with forthwith and the Bank is hereby directed to pay the pending salaries of Kshs. 3,696,015. 00/. Costs of the application shall be in the cause.It is so ordered.

DATED AT MALINDI THIS 1ST DAY OF NOVEMBER, 2022. ................................S.M. GITHINJIJUDGE