Introduction
1. Before the Court is the Plaintiff's Notice of Motion dated 6th June 2025, brought under the provisions of Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act. The Plaintiff principally seeks an interlocutory injunction restraining the Defendants, whether by themselves, their servants and/or agents, from selling, transferring, alienating, disposing of or otherwise dealing with the machinery and assets identified in the application pending the hearing and determination of this suit.
2. The application is premised on the grounds set out on its face and is supported by the affidavit of Oluwatosin Yusuf Agarawu, a director of the Plaintiff company, dated 6th June 2025.
3. The Plaintiff avers that the parties entered into a commercial arrangement for the supply of hides and skins pursuant to which it remitted substantial sums of money to the Defendants. It is alleged that although the Defendants partially performed their contractual obligations, they failed to supply the balance of the agreed consignments despite receiving payment, thereby occasioning the Plaintiff considerable financial loss. The Plaintiff further contends that unless the assets identified in the application are preserved, there exists a real risk that any decree ultimately issued in its favour may be rendered incapable of effective enforcement.
4. The application was placed before the Court under a certificate of urgency. Upon considering the material presented, the Court certified the application urgent, granted interim preservatory orders and directed that the application together with the accompanying pleadings be served upon the Defendants, who were granted leave to file and serve their response within the time stipulated by the Court.
5. The record contains an Affidavit of Service sworn on 13th June 2025 by Noel N. Munyithya, confirming that the Defendants were duly served with the application, the pleadings and the Court's directions in accordance with the orders issued by the Court. Despite such service, the Defendants neither entered appearance nor filed a replying affidavit, grounds of opposition or any other response to the application. The application therefore remains unopposed.
6. The absence of a response does not, of itself, entitle an applicant to the relief sought. An interlocutory injunction is an equitable remedy granted in the exercise of judicial discretion. The Court is therefore under a duty to independently evaluate the material placed before it and determine whether the legal threshold for the grant of such relief has been satisfied notwithstanding that the application is unopposed.
Analysis and Determination
7. From the pleadings on record, the sole issue falling for determination is whether the Plaintiff has established a proper basis for the grant of an interlocutory injunction pending the hearing and determination of the suit.
8. The principles governing the grant of interlocutory injunctions are well settled. In Giella v Cassman Brown & Co. Ltd [1973] EA 358, the Court held that an applicant must establish a prima facie case with a probability of success, demonstrate that it stands to suffer irreparable injury which cannot adequately be compensated by an award of damages and, where the Court is in doubt, the application should be determined on a balance of convenience.
9. The Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 others (Civil Appeal 39 of 2002) [2003] KECA 175 (KLR) explained that a prima facie case is one which, on the material presented to the Court, discloses an apparent infringement of a right calling for an answer from the opposite party.
10. Applying those principles to the present application, I am satisfied that the Plaintiff has established a prima facie case with a probability of success. The material presently before the Court discloses an arguable commercial dispute arising from the parties' contractual relationship. The documentary material exhibited by the Plaintiff demonstrates, at least on a prima facie basis, commercial dealings between the parties, payments allegedly made pursuant to those dealings, partial performance of the contract and the losses said to have resulted from the Defendants' alleged failure to fulfil their contractual obligations. Whether those allegations will ultimately be proved is a matter reserved for trial. At this interlocutory stage, the Court is only required to determine whether the Plaintiff has demonstrated a genuine claim deserving judicial investigation, and I am satisfied that it has done so.
11. I have equally taken into account that although the Defendants were afforded an opportunity to respond to the application, they elected not to do so. While the Court does not grant interlocutory relief merely because an application is unopposed, the consequence is that the factual depositions and documentary material relied upon by the Plaintiff remain uncontroverted. In the absence of any material challenging those depositions, and without expressing any definitive view on the merits of the dispute, I find no basis to reject the Plaintiff's account of the underlying commercial transaction at this stage.
12. Accordingly, I allow the Notice of Motion dated 6 June 2025, and make the following orders:
a) A temporary injunction be and is hereby issued restraining the Defendants, whether by themselves, their servants and/or agents, from selling, transferring, alienating, disposing of or otherwise dealing with the machinery and assets identified in the Notice of Motion dated 6th June 2025, pending the hearing and determination of this suit.
b) The parties shall comply with the provisions of Order 11 of the Civil Procedure Rules within thirty (30) days from the date hereof, whereafter the matter shall be mentioned before the Deputy Registrar for confirmation of compliance and for further case management directions.
c) The costs of the application shall abide the outcome of the suit.
13. It is so ordered
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent
1. Before the Court is the Plaintiff's Notice of Motion dated 6th June 2025, brought under the provisions of Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act. The Plaintiff principally seeks an interlocutory injunction restraining the Defendants, whether by themselves, their servants and/or agents, from selling, transferring, alienating, disposing of or otherwise dealing with the machinery and assets identified in the application pending the hearing and determination of this suit.
2. The application is premised on the grounds set out on its face and is supported by the affidavit of Oluwatosin Yusuf Agarawu, a director of the Plaintiff company, dated 6th June 2025.
3. The Plaintiff avers that the parties entered into a commercial arrangement for the supply of hides and skins pursuant to which it remitted substantial sums of money to the Defendants. It is alleged that although the Defendants partially performed their contractual obligations, they failed to supply the balance of the agreed consignments despite receiving payment, thereby occasioning the Plaintiff considerable financial loss. The Plaintiff further contends that unless the assets identified in the application are preserved, there exists a real risk that any decree ultimately issued in its favour may be rendered incapable of effective enforcement.
4. The application was placed before the Court under a certificate of urgency. Upon considering the material presented, the Court certified the application urgent, granted interim preservatory orders and directed that the application together with the accompanying pleadings be served upon the Defendants, who were granted leave to file and serve their response within the time stipulated by the Court.
5. The record contains an Affidavit of Service sworn on 13th June 2025 by Noel N. Munyithya, confirming that the Defendants were duly served with the application, the pleadings and the Court's directions in accordance with the orders issued by the Court. Despite such service, the Defendants neither entered appearance nor filed a replying affidavit, grounds of opposition or any other response to the application. The application therefore remains unopposed.
6. The absence of a response does not, of itself, entitle an applicant to the relief sought. An interlocutory injunction is an equitable remedy granted in the exercise of judicial discretion. The Court is therefore under a duty to independently evaluate the material placed before it and determine whether the legal threshold for the grant of such relief has been satisfied notwithstanding that the application is unopposed.
Analysis and Determination
7. From the pleadings on record, the sole issue falling for determination is whether the Plaintiff has established a proper basis for the grant of an interlocutory injunction pending the hearing and determination of the suit.
8. The principles governing the grant of interlocutory injunctions are well settled. In Giella v Cassman Brown & Co. Ltd [1973] EA 358, the Court held that an applicant must establish a prima facie case with a probability of success, demonstrate that it stands to suffer irreparable injury which cannot adequately be compensated by an award of damages and, where the Court is in doubt, the application should be determined on a balance of convenience.
9. The Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 others (Civil Appeal 39 of 2002) [2003] KECA 175 (KLR) explained that a prima facie case is one which, on the material presented to the Court, discloses an apparent infringement of a right calling for an answer from the opposite party.
10. Applying those principles to the present application, I am satisfied that the Plaintiff has established a prima facie case with a probability of success. The material presently before the Court discloses an arguable commercial dispute arising from the parties' contractual relationship. The documentary material exhibited by the Plaintiff demonstrates, at least on a prima facie basis, commercial dealings between the parties, payments allegedly made pursuant to those dealings, partial performance of the contract and the losses said to have resulted from the Defendants' alleged failure to fulfil their contractual obligations. Whether those allegations will ultimately be proved is a matter reserved for trial. At this interlocutory stage, the Court is only required to determine whether the Plaintiff has demonstrated a genuine claim deserving judicial investigation, and I am satisfied that it has done so.
11. I have equally taken into account that although the Defendants were afforded an opportunity to respond to the application, they elected not to do so. While the Court does not grant interlocutory relief merely because an application is unopposed, the consequence is that the factual depositions and documentary material relied upon by the Plaintiff remain uncontroverted. In the absence of any material challenging those depositions, and without expressing any definitive view on the merits of the dispute, I find no basis to reject the Plaintiff's account of the underlying commercial transaction at this stage.
12. Accordingly, I allow the Notice of Motion dated 6 June 2025, and make the following orders:
a) A temporary injunction be and is hereby issued restraining the Defendants, whether by themselves, their servants and/or agents, from selling, transferring, alienating, disposing of or otherwise dealing with the machinery and assets identified in the Notice of Motion dated 6th June 2025, pending the hearing and determination of this suit.
b) The parties shall comply with the provisions of Order 11 of the Civil Procedure Rules within thirty (30) days from the date hereof, whereafter the matter shall be mentioned before the Deputy Registrar for confirmation of compliance and for further case management directions.
c) The costs of the application shall abide the outcome of the suit.
13. It is so ordered
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent