(Being an appeal from the judgment of Hon. B.M. Ochoi, delivered on 24.5.24)
Vide a statement of claim dated 24.10.23, the appellant sought the following reliefs against the respondent:
a) A permanent injunction restraining the respondent, their agents, or any personnel from interfering with water vending business of the appellant
b) A permanent injunction restraining the respondent, their agents, or any personnel from removing and or repossessing the water meter belonging to the appellant
c) An injunction against police officers from Huruma Police Station restraining them from arresting the appellant in the course of his water vending business
d) Costs of the suit
The appellant’s case before the tribunal was that he is a legally registered account holder of water meter number 2500002623 and account number 5243679 and together with his business partner one Raphael Makau Muia, have been carrying out water vending business after complying with all the requirements as required by the Water Act.
The appellant’s case was that on 6.9.23, he received summons from the respondent requiring him to appear in their chambers to answer questions on some investigations that were going on and was asked to appear with all his documents after which he was released to continue with his business.
The appellant’s case was that he occasionally received threats from area number of county assembly who is in cohorts with agents of the respondent and that this made it difficult to operate his business peacefully. The appellant’s case is that the respondent had no justification for threatening him or interfering with his business.
The respondent filed a response to the claim and denied the allegation that it had interfered with the appellant’s business or that it issued threats through the officers. The respondent called a witness one Kevin Musindai Murugi, monitoring supervisor of the respondent. The witness denied the allegations made against the respondent. The respondent’s case is that it had no dispute with the appellant and that the suit and claim were misconceived. The respondent’s position is that it did summon the appellant vide summons dated 6.9.23 and that the issue in respect of which summons issued was resolved.
The chairman of the tribunal gave directions that the claim be determined by oral evidence. The appellant testified and adopted his statement as summarised above. The respondent’s witness equally adopted his witness statement as summarised above.
The chairman of the tribunal, upon considering the evidence, found no merit in the claim and dismissed it with costs. Aggrieved by the decision of the tribunal, the appellant appealed to this court citing the following grounds:
a) That the learned chairman erred in dismissing the appellant’s suit wholesome without considering the documentary evidence on record
b) That the learned chairman erred in both law and fact in failing to consider the appellant’s submission
c) That the learned chairman’s judgment did not conform to the relevant laws
The appellant submitted that it had satisfied the conditions for grant of temporary injunction as set out in Giella v Cassman Brown and Company (1973) EA 358 .
The appellant cited the cases of Nguruman Ltd v Jan Bonde Nielsen and 2 others (2014) eKLR Silvester Momanyi Marube v Gulzar Ahmed Motors & Another (2012) eKLR amongst other decided cases.
The respondent submitted that the appellant argued a ground of appeal not raised in the memorandum of appeal without leave of the court. The respondent argued that the appeal be struck out with costs.
The respondent further submitted that the appellant had failed to demonstrate that the learned chairman of the tribunal failed to consider any documentary evidence placed before him. The respondent submitted that the tribunal’s judgment was sound and legal. The respondent urged that the appeal be dismissed.
ANALYSIS AND DETERMINATION
This is a first appeal and this court has a duty to reexamine and reevaluate the evidence on record and arrive at its own conclusion. It should also bear in mind that it did not see nor hear the witnesses and must therefore give an allowance for that. See Selle & Another v Associated Motor Boat Co. Ltd & others (1968) EA 123.
From the memorandum of appeal and the record, the appeal herein turns on whether the learned chairman of the tribunal failed to consider the appellant’s case and thereby arrived at a wrong decision.
Reading through the appellant’s submissions, he appears to have abandoned his grounds of appeal and totally argued a new ground of appeal which is whether it had satisfied conditions for grant of a temporary order of injunction. The issue before the tribunal and which was determined upon considering viva voce evidence was whether the appellant had proved on a balance of probabilities that it was entitled to orders of permanent injunctions sought in its statement of claim.
The submissions on conditions for grant of temporary injunction, which is distinct from permanent injunction, are misplaced. Unlike a temporary injunction which is short term with the aim of preventing immediate harm until a case is decided, a permanent injunction is final and requires an applicant to prove the merits of their case fully.
It is a principle of law that whoever lays claim before a court against another bears the burden of proving it. This is the essence of sections 107 and 108 of the Evidence Act which provides as follows:
“107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person
108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side”
It was therefore incumbent upon the appellant to lay before court cogent and credible evidence showing that he had a clear and unmistakable right to be protected which right was directly threatened by acts of the respondent.
On the issue of legal burden, I seek reliance on The Halsbury’s Laws of England 4 th Edition , Volume 17, at paragraphs 13 and 14, which states:
“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus, a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. These may therefore, be separate burdens in a case with separate issues.
The legal burden is discharged by way of evidence with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial depending on the evidence adduced. As the weight of evidence given by either side during the trial varies so will the evidential burden shift to the party who would fail without further evidence”
The appellant’s case was that he had been receiving threats and was being harassed by area MCA through his numerous phone calls made using a disclosed number and the respondent’s employees. I note that in his final prayers, the appellant sought orders against police officers from Huruma Police Station restraining them from arresting the appellant. In the body of statement of claim and in his evidence, it is not disclosed who the employees of the respondent were, what wrong the police officers from Huruma Police Station had done and most important, the relationship between the area MCA or police officers from Huruma Police Station and the respondent.
It must also be noted that the area MCA is an independent person capable of being sued in own capacity. No orders could definitely issue against the police officers from Huruma Police Station without making them parties to this suit or at least making either the ODPP or AG party to this case as that will be an affront to the constitutional provisions on the right to a fair trial. The appellant’s statement of claim, aside from being poorly drafted, was also deficient in evidence. The respondent’s position which was not controverted is that though it had summoned the appellant for an enquiry, it completed the investigations and allowed the appellant to continue operating his business. There was no evidence whatsoever to displace the respondent’s position or to show that the respondent’s agents were in contact with the appellant.
The learned chairman of the tribunal correctly found, as I do, that the appellant’s case was not proved as required. The upshot is that the appeal herein lacks merit and is accordingly dismissed with costs.
DATED, SIGNED AND DATED THIS 20 th JULY 2026
D.O. ONYANGO
JUDGE
1
Vide a statement of claim dated 24.10.23, the appellant sought the following reliefs against the respondent:
a) A permanent injunction restraining the respondent, their agents, or any personnel from interfering with water vending business of the appellant
b) A permanent injunction restraining the respondent, their agents, or any personnel from removing and or repossessing the water meter belonging to the appellant
c) An injunction against police officers from Huruma Police Station restraining them from arresting the appellant in the course of his water vending business
d) Costs of the suit
The appellant’s case before the tribunal was that he is a legally registered account holder of water meter number 2500002623 and account number 5243679 and together with his business partner one Raphael Makau Muia, have been carrying out water vending business after complying with all the requirements as required by the Water Act.
The appellant’s case was that on 6.9.23, he received summons from the respondent requiring him to appear in their chambers to answer questions on some investigations that were going on and was asked to appear with all his documents after which he was released to continue with his business.
The appellant’s case was that he occasionally received threats from area number of county assembly who is in cohorts with agents of the respondent and that this made it difficult to operate his business peacefully. The appellant’s case is that the respondent had no justification for threatening him or interfering with his business.
The respondent filed a response to the claim and denied the allegation that it had interfered with the appellant’s business or that it issued threats through the officers. The respondent called a witness one Kevin Musindai Murugi, monitoring supervisor of the respondent. The witness denied the allegations made against the respondent. The respondent’s case is that it had no dispute with the appellant and that the suit and claim were misconceived. The respondent’s position is that it did summon the appellant vide summons dated 6.9.23 and that the issue in respect of which summons issued was resolved.
The chairman of the tribunal gave directions that the claim be determined by oral evidence. The appellant testified and adopted his statement as summarised above. The respondent’s witness equally adopted his witness statement as summarised above.
The chairman of the tribunal, upon considering the evidence, found no merit in the claim and dismissed it with costs. Aggrieved by the decision of the tribunal, the appellant appealed to this court citing the following grounds:
a) That the learned chairman erred in dismissing the appellant’s suit wholesome without considering the documentary evidence on record
b) That the learned chairman erred in both law and fact in failing to consider the appellant’s submission
c) That the learned chairman’s judgment did not conform to the relevant laws
The appellant submitted that it had satisfied the conditions for grant of temporary injunction as set out in Giella v Cassman Brown and Company (1973) EA 358 .
The appellant cited the cases of Nguruman Ltd v Jan Bonde Nielsen and 2 others (2014) eKLR Silvester Momanyi Marube v Gulzar Ahmed Motors & Another (2012) eKLR amongst other decided cases.
The respondent submitted that the appellant argued a ground of appeal not raised in the memorandum of appeal without leave of the court. The respondent argued that the appeal be struck out with costs.
The respondent further submitted that the appellant had failed to demonstrate that the learned chairman of the tribunal failed to consider any documentary evidence placed before him. The respondent submitted that the tribunal’s judgment was sound and legal. The respondent urged that the appeal be dismissed.
ANALYSIS AND DETERMINATION
This is a first appeal and this court has a duty to reexamine and reevaluate the evidence on record and arrive at its own conclusion. It should also bear in mind that it did not see nor hear the witnesses and must therefore give an allowance for that. See Selle & Another v Associated Motor Boat Co. Ltd & others (1968) EA 123.
From the memorandum of appeal and the record, the appeal herein turns on whether the learned chairman of the tribunal failed to consider the appellant’s case and thereby arrived at a wrong decision.
Reading through the appellant’s submissions, he appears to have abandoned his grounds of appeal and totally argued a new ground of appeal which is whether it had satisfied conditions for grant of a temporary order of injunction. The issue before the tribunal and which was determined upon considering viva voce evidence was whether the appellant had proved on a balance of probabilities that it was entitled to orders of permanent injunctions sought in its statement of claim.
The submissions on conditions for grant of temporary injunction, which is distinct from permanent injunction, are misplaced. Unlike a temporary injunction which is short term with the aim of preventing immediate harm until a case is decided, a permanent injunction is final and requires an applicant to prove the merits of their case fully.
It is a principle of law that whoever lays claim before a court against another bears the burden of proving it. This is the essence of sections 107 and 108 of the Evidence Act which provides as follows:
“107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person
108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side”
It was therefore incumbent upon the appellant to lay before court cogent and credible evidence showing that he had a clear and unmistakable right to be protected which right was directly threatened by acts of the respondent.
On the issue of legal burden, I seek reliance on The Halsbury’s Laws of England 4 th Edition , Volume 17, at paragraphs 13 and 14, which states:
“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus, a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. These may therefore, be separate burdens in a case with separate issues.
The legal burden is discharged by way of evidence with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial depending on the evidence adduced. As the weight of evidence given by either side during the trial varies so will the evidential burden shift to the party who would fail without further evidence”
The appellant’s case was that he had been receiving threats and was being harassed by area MCA through his numerous phone calls made using a disclosed number and the respondent’s employees. I note that in his final prayers, the appellant sought orders against police officers from Huruma Police Station restraining them from arresting the appellant. In the body of statement of claim and in his evidence, it is not disclosed who the employees of the respondent were, what wrong the police officers from Huruma Police Station had done and most important, the relationship between the area MCA or police officers from Huruma Police Station and the respondent.
It must also be noted that the area MCA is an independent person capable of being sued in own capacity. No orders could definitely issue against the police officers from Huruma Police Station without making them parties to this suit or at least making either the ODPP or AG party to this case as that will be an affront to the constitutional provisions on the right to a fair trial. The appellant’s statement of claim, aside from being poorly drafted, was also deficient in evidence. The respondent’s position which was not controverted is that though it had summoned the appellant for an enquiry, it completed the investigations and allowed the appellant to continue operating his business. There was no evidence whatsoever to displace the respondent’s position or to show that the respondent’s agents were in contact with the appellant.
The learned chairman of the tribunal correctly found, as I do, that the appellant’s case was not proved as required. The upshot is that the appeal herein lacks merit and is accordingly dismissed with costs.
DATED, SIGNED AND DATED THIS 20 th JULY 2026
D.O. ONYANGO
JUDGE
1