[2022] KEHC 1841 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CIVIL SUIT NO 11 OF 2019

SOSPETER NYAKUNDI NYANGAU...................................1ST PLAINTIFF/RESPONDENT

SAMWEL MOTANYA JECONIAH(Suing on his behalf and as Manager of the Estate

ADAMS OSEKO)....................................................................2ND PLAINTIFF/RESPONDENT

VERSUS

ECOBANK KENYA LIMITED..........................................1ST DEFENDANT/RESPONDENT

VALLEY AUCTIONEERS.................................................2ND DEFENDANT/RESPONDENT

HELLEN KWAMBOKA KOMBO........................................3RD DEFENDANT/APPLICANT

RULING

1. The application before me is a Notice of Motion dated 7th September 2021 by the 3rd Defendant/Applicant seeking the following orders:

1. …

2. THAT the Plaintiffs/Respondents be ordered to remove the Container now placed on the land parcel NO. KISII TOWN/BLOCK III/407 with immediate effect.

3. THAT the Plaintiffs/Respondents their agents and/or servants be restrained by injunction from in any way interfering with land parcel NO. KISII TOWN/BLOCK III/407 until this suit is heard and decided.

4. THAT cost of this Application be provided for.

2. The applicant amended her notice of motion application and supporting affidavit and filed the amended application and affidavit on 5th October 2021.

3. This Application is supported by the sworn affidavit of Hellen Kwamboka Komboon the following grounds;

a) That she is the registered proprietor of Land Parcel No. KISII TOWN/BLOCK III/407.

b) The plaintiff, Sospeter Nyakundi Nyangau, has placed a container on the suit land in readiness to start operating a business on the same without her consent or an order of the court.

c) That the plaintiff in the suit admits that Land Parcel No. KISII TOWN/BLOCK III/407 is registered in the name of the applicant.

d) The applicant stands to suffer irreparable loss if the Plaintiff were to be allowed to operate a business on the suit property registered in the name of the applicant.

4. The 2nd Plaintiff/Respondent in opposing of the application filed the following grounds of opposition:

1. THAT the application is vague and ambiguous as it does not indicate against whom the orders sought are directed.

2. THAT Adams Oseko and his family were not privy to the sale of their interest in the suit property to the 3rd Defendant.

3. THAT Adams Oseko and his family have always been in occupation of the suit property from which they derive their livelihood.

4. THAT the orders sought are final in nature whose effect is the eviction of dams Oseko and his family from the suit land during the pendency of these proceedings and Nakuru HCCC No 21 of 2020 yet there are no exceptional circumstances prevailing herein warranting the issuance of the orders sought at this stage of proceedings.

5. THAT the 3rd Defendant/Applicant’s title to the suit property is under challenge in these proceedings and in Nakuru HCCC No 21 of 2020 and the 3rd Defendant’s cannot dangle the instrument of title as proof of ownership during the pendency of proceedings herein.

5. The Application was also opposed by the 1st Plaintiff/Respondent vide the sworn Replying Affidavit ofSospeter Nyakundi Nyangau dated 21t September 2021 made the following averments:

1. THAT I am an adult of sound mind residing at Nakuru County and the 1st Plaintiff herein hence competent to swear this replying affidavit.

2. THAT I have read and understood the application dated 1st September 2021 and the supporting affidavit sworn by Hellen Kwamboka Kombo in support thereof and respond as follows.

3. THAT in answer to paragraph 4 of the said affidavit, I wish to state that I have not placed a container in the suit land as alleged.

Applicant’s submissions

6. The application was heard by way of written submissions and the 3rd Defendant/ Applicant and the Plaintiffs/Respondents all filed their respective submissions.

7. The applicant submits that the suit property is a plot in town which she bought from the 1st defendant who sold the same in exercise of its statutory power as chargee. She contends that the chargee duly complied with the law and had the property transferred to the applicant. She also submitted that the suit property now legally belongs to the applicant and the court is duty bound to protect the interest of the registered owner.

8. The applicant in her submissions urged the court to consider provisions of Article 159 of the Constitution and disregard any technicalities.

1st Plaintiff’s/Respondent’s Submissions

9. The 1st plaintiff filed his submissions on 29th November 2021 and dealt with three preliminary issues: leave to amend pleadings, amendment of affidavit and applications for interim injunctions.

10. He submitted that the applicant required leave of court before amending the Notice of Motion dated 5th October 2021. They cited the case of Kiru Tea Factory Company Ltd v Stephen Maina Githiga & 13 others [2019] eKLR where the court of Appeal stated:

“24. The common thread from the decisions cited above is that where leave of court is required, any pleading filed without leave is a nullity and liable to be struck out.

………………………

27……………………….Taking into account that the amended notice of motion and the Further Affidavits deposed to by Mr. Geoffrey Chege Kirundi were filed without leave of this Court, we find that the said affidavits contravene Rule 43 and 44 of the Rules of this Court and we hereby strike them out.”

11. It was the 1st plaintiff’s submissions that an affidavit cannot be amended as it is not a pleading but evidence. He cited the case of Swaleh Gheithan Saanun v Commissioner of Lands & 5 Others [2002] eKLRand Republic v Resident Magistrate’s Court Mk & Stephen Maundu Muia (2004) eKLR in aid of his argument.

12. The 1st plaintiff further contends that the orders sought by the applicant are not anchored on any pleading. It was submitted that an application for an injunction must be made in a suit where the applicant has sought the relief of a permanent injunction against the respondent. He cited the case of Kihara v Barclays Bank (K) Ltd [2001] 2 EA 420and the case of Josephine Chebet Ruto v Stanley K. Chepkwony & Another [2017] eKLR. In the latter case the court held a follows:

“19. I now turn to the second issue which is whether an injunction can be issued in vacuo. In determining this issue, I rely on the case of James Archimedes Gichana V Pyrethrum Board of Kenya Nakuru HCCC No. 237 of 2007 where the court held as follows:

“Both rules 1(a) and 1(b) of Order 40 have been judicially considered to require a clear indication or prayer in the suit seeking such an injunction. Where an applicant for injunction fails to demonstrate that he sought an order of permanent injunction in his suit, his application is said not to sound with rule 1a or 1b of order 40 and will be deemed to be incompetent. The reason for this is clear. It is found in order 2 rule 6 of the Civil Procedure Rules that no party may in his pleadings make an allegation of fact or raise any new ground of claim inconsistent with his pleadings. No party can depart from his pleadings whether in evidence or in an interlocutory application. To do so, a party must first amend his pleadings.”

13. The 1st plaintiff in his submissions identified 2 main issues for the courts consideration: first, whether the applicant has made out a case to warrant the grant of the orders sought in the application; and who should bear the cost of the application.

14. The 1st plaintiff submitted that according to its amended plaint, the plaintiff has averred that they reside on the suit property with their extended family and that their late mother was buried on the suit land. He urged the court should be cautious when considering grant of mandatory injunction that determines the issues in dispute. The 1st plaintiff cited several cases among them being the decision of Megarry J in Shepherd Homes Ltd v Sandham [1971] 1 Ch. 34where it was stated:

“It is plain that in most circumstances a mandatory injunction is likely, other things being equal, to be more drastic in its effects that a prohibitory injunction. At the trial of the action, the court will, of course grant such injunctions as the justice of the case requires; but at the interlocutory stage, when the final result of the case cannot be known and the court has to do the best it can, I think the case has to be unusually strong and clear before a mandatory injunction will be granted, even if it is sought in order to enforce a contractual obligation…. On motion, as contrasted with the trial, the 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 this is a higher standard that is required for a prohibitory injunction.”

15. It was thus submitted that the prayer for mandatory injunction should thus fail.

16. It was further argued that in any event, the applicant had failed to establish a prima facie case with high chances of success. The 1st plaintiff submitted that the applicant’s case is pegged on a title deed yet the ownership of the property is disputed. She has also not demonstrated loss or injury likely to be suffered which cannot be compensated by way of damages. It was submitted that the balance of convenience tilts in favour of the 2nd plaintiff who has been in possession of the suit land and derives livelihood from it.

2nd Plaintiff’s Submissions

17. The 2nd plaintiff submitted that an affidavit is a document that cannot be amended. In regards to the grant of the mandatory interlocutory injunctions they cited the case of Robai Kadili Agufa & Another v Kenya Power & Lighting Co Ltd 2015 eKLR where it was held:

“……….a court considering an application for interlocutory mandatory injunction must be satisfied that there are not only special and exceptional circumstances, but also that the case is clear.”

18. It was submitted that the applicant has never been in possession of the suit land as at the time of the sale the land was being occupied by the plaintiffs’ family. It was argued that that the applicant cannot merely dangle the instrument of title that is challenged as proof of ownership as they are also required to prove that their acquisition of title was also legal. (See Munyu Maina v Hiram Gathiha Maina [2013] eKLR).

19. The court was urged to dismiss the application and award costs of the application be awarded to the plaintiffs.

Analysis and Determination

20. In this case the fact that the Notice of Motion was amended without leave of court is not in dispute. The applicant filed his notice of motion dated 7th September 2021 on 9th of September 2021. The applicant thereafter proceeded to file an Amended Notice of Motion dated 5th September 2021 without leave of court.

21. The only instance in which amendment of pleadings may be done without leave of court are outlined in Order 8 Rule (1) (1) of the Civil Procedure Rules. It provides that a party may, without the leave of the court, amend any of his pleadings once at any time before the pleadings are closed. The applicant was thus to file the amended notice of motion subject to leave granted by this court, this was never done and the amended application before me is thus not proper.

22. The applicant also purported to amend her supporting affidavit. It is trite law that an affidavit is evidence and therefore Order 8 of the Civil Procedure which provides directions on amendments of pleadings becomes inapplicable to affidavit evidence. In the case of Re Estate of NMM (Deceased) [2021] eKLR the court correctly observed that:

“……an affidavit is never amended and therefore substantially valueless in the face of the pleadings and proceedings. What are the consequences of a pleading relying on an amended affidavit? In the case of James Peter Maina Muriuki Vs Moses Maina Ngugi & another (2008) e KLR Justice Aganyanya JA as he then was stated that;

“While the law does not allow an amendment of an affidavit to support an amended chamber summons, there should be an independent affidavit to support the amended chamber summons even if it is in similar terms as that which supports the original chamber application. And it is not advisable to only refer to original affidavit as supporting the amended chamber application”.

……………………………………….

A supporting affidavit to a pleading is the cornerstone of any pleading. Since some of the amended parts of the affidavit form the substratum of the application, they cannot stand in law. An affidavit cannot be amended to support an amended pleading. The best the applicant should have done was to file a supplementary affidavit. Unfortunately, there is no fall back to the original supporting affidavit.”

23. The ‘amended Notice of Motion’ and ‘amended supporting affidavit’ were thus not properly before this court as they are not supported by any provision of the Civil Procedure Rules and the same is struck out.

24. I however do not consider the intended amendments of the notice of motion as substantial as they were merely on the names of the parties by amending the word ‘plaintiff’ to read plaintiffs.

25. I shall therefore proceed to consider the initial application filed on 9th September 2021 dated 1st September 2021. This court is charged with the mandate to consider whether the applicant has established a case for the grant of mandatory injunction at this interim/interlocutory stage as well as the order of prohibition sought in his application dated 1st September 2021.

26. In Giella vs. Cassman Brown [1973] EA 358 the guiding principles on applications for injunctory relief were as follows:

i. The applicant must show a prima facie case with a probability of success.

ii. An injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury.

iii. When the court is in doubt it will decide the application on a balance of convenience.

27. The Court of Appeal in Joseph Kaloki t/a Royal Family Assembly v Nancy Atieno Ouma [2020] eKLR cited with approval the decision in Kenya Breweries Limited & another vs. Washington O. Okeyo [2002] eKLR where the court held that mandatory injunction can be granted on an interlocutory applications 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.

28. The court of Appeal in Alex Wainaina t/a John Commercial Agencies v Janson Mwangi Wanjihia [2015] eKLR cautioned courts against the temptation of making conclusive findings of fact before having the main hearing. The Court stated:

“This court has previously held that in considering the first principle, the trial court must avoid the temptation of making conclusive findings of fact before they are tested in cross examination. A prohibitory injunction, rather than a mandatory injunction which is considered on different principles, is meant to forestall the happening of an event. In the case of Stephen Kipkebut T/A Riverside Lodge and Rooms vs. Naftali Ogola [2009] EKLR the court held that an order which results in the granting of a major relief claimed in the suit ought not to be granted at an interlocutory stage. We have examined the record and we think, with respect, that the trial court in its analysis, fell into this temptation in finding that the appellant's case stood no chance of success at the hearing. The result was that the other principles in the Giella case were ignored.”

29. This court will therefore proceed to consider whether the applicant has established a prima facie case. In doing so, I shall consider the history of this case. The plaintiffs’ case is that the suit property was fraudulently sold to the applicant. The plaintiffs’ contend that the 1st defendant failed to issue statutory notices as required by law and that the applicant did not place a bid for an auction conducted on 19th November 2013.

30. The applicant in her application asserts that she is the registered owner of the suit property however it has not been established whether the procedure in which the suit land was acquired was proper given the plaintiffs alleged illegality in the main suit. There is also a contention on whether the 1st Defendant followed the lawfully laid procedures in exercising its statutory power of sale.

31. There is no evidence that the applicant has taken possession of the suit property. On the contrary, the evidence that is on record reveal that the plaintiffs are in possession of the suit land. The applicant has thus not proved a prim facie case against the respondents and neither has she demonstrated that she stands to suffer irreparable injury that cannot be remedied by way of damages.

32. The applicant also seeks injunctive orders yet her statement of defence filed on 26th November 2020 did not include a counterclaim seeking permanent injunction and therefore the prayers sought in this instant application cannot stand.

33. In the end, I therefore find that the application before me is unmeritorious and the same is hereby dismissed. This is an old matter the parties should strive to have the suit heard and determined. The respondents/plaintiffs shall have the costs of the application.

DATED, SIGNED AND DELIVERED AT KISII THIS 4TH DAY OF MARCH, 2022.

R. E. OUGO

JUDGE

In the presence of:

Applicant Absent

Mr. Mogire For the 1st Respondent

Mr. Omae For the 2nd Respondent

Kevin Court Assistant