1. Before this court for determination is a Notice of Motion Application dated 19th March, 2024. The Application is said to be brought under Section 3A and 63 of the Civil Procedure Act; Order 40 Rule 2, and Order 51 Rule 1 of the Civil Procedure Rules.
2. The ex-parte Applicant is seeking for the following Orders:
(a) Spent.
(b) THAT pending the hearing and determination of this application an order of injunction be issued against the Respondents, barring them from confirming, at the Annual General Meeting or any other time, the Interested Parties Interested Parties as office bearers of the Agricultural Society of Kenya including barring the Interested Parties from holding themselves out as the successful candidates of the elections conducted on the 17 August, 2023.
(c) THAT pending the hearing and determination of this suit an order of injunction be issued against the Respondents, barring them from confirming, at the Annual General Meeting or any other time, the Interested Parties Interested Parties as office bearers of the Agricultural Society of Kenya including barring the Interested Parties from holding themselves out as the successful candidates of the elections conducted on the 17th August, 2023.
(d) THAT in the alternative, status quo obtaining as of the date of this application be maintained.
(e) THAT the costs of this application be in the cause.
3. The Application is accompanied by a Supporting Affidavit evenly dated, and sworn by Charles Apudo Owelle, the life governor member of the Agricultural Society of Kenya. Also, the Applicant filed a Further Affidavit dated 2nd April, 2024.
4. Condensed, the Applicant’s case is that he filed a court Application for leave to initiate judicial review proceedings against the Respondents on 16th January, 2024. The court on 19th January, 2024 granted the requested leave and directed the prayer for stay to be heard in the substantive suit.
5. The ex-parte Applicant sought the stay on 5th March, 2024 and was directed to apply. It was averred that the 3rd Respondent's Annual General Meeting was scheduled for March 29, 2024; and the Interested Parties would be confirmed as officials; However, that the entire election is under challenge in this Judicial Review Proceedings. Therefore, that this case will be rendered moot and nugatory if the Interested Parties are confirmed at the meeting.
6. That the court deemed it fair and just to grant the requested prayers to preserve the status quo and to hear the Application with prayers 1 and 2 granted in the interim. To which, that the Application be heard and determined in the interest of sustaining the case's status quo.
7. Further, as captured in his said Further Affidavit in response to the Respondent’s Replying Affidavit it is maintained that the Applicant have not delayed the prosecution of this matter, and has filed all necessary submissions as required by the court. That they had also sought stay while filing the granted Application for leave.
8. Accordingly, that the Applicant has moved the application appropriately, and without unreasonable delay. Thus, the Respondents cannot object to it, as they also supported the same position when the matter appeared last in court. The Agricultural Society of Kenya will not face any hardship as its operation has always been without the input of the Interested Parties. That if the Interested Parties were confirmed and take office, they would continue to engage in illegal activities, as the court has already pointed out their election was illegal.
9. The Application is opposed by the Respondents and the Interested Parties.
10. The Respondents filed their Replying Affidavit dated 25th March, 2024 and deponed by Batram Muthoki, the CEO of Agricultural Society of Kenya – on behalf of all the Respondents. It is deponed that the Applicant's Application for an injunction has been brought with an unreasonable delay, indicating no urgency in the matter. That the Application was strategically brought during the High Court Recess and a week to the Annual General Meeting, aiming to clog the Respondents' right of response. Thus, the injunction sought being an equitable relief, should be declined due to the delay.
11. Also, that the Applicant has failed to comply with the Court's orders on two separate occasions, showing that the suit and Application are not as urgent as they portray. The balance of convenience tilts in favor of the Respondents/Society, as the Applicant's case has very little chances of success and would cause significant hardship on the Society, which has not had elected officials in office since March, 2020 due to litigation.
12. As per the deponent, the Society's Rules specifically reject an injunction during the pendency of an election dispute/petition, and granting the injunction sought would be a contravention of the Society's Rules and judicial overreach into its affairs. The Applicant's Application should be dismissed with costs to the Respondents and the Court to vacate the interim orders issued on 21st March, 2024.
13. In further opposition to the Application, the 1st and 2nd Interested Parties filed their respective Replying Affidavit – both dated 25th March, 2024 and sworn respectively by Edith Onzere, and John Muchiri Kibira. The Replying Affidavits are similarly deponed.
14. In the main, it was deponed that the Applicant’s Application is made in bad faith; and only to frustrate the 1st Respondent, and Interested Parties. That the assumption of office by the Interested Parties will not in any way erode/relinquish and or render the instant suit nugatory, since the substratum of the suit is the nullifications of elections results; which the Applicant would still be able to prosecute its Application to quash the results of the election. Also that the society can still hold fresh elections and the duly elected officials elected therefrom can then assume office.
15. Additionally, it is averred that the Applicant has not met the threshold to warrant the grant of injunctive orders as held in the case of Giella v Cassman Brown. That granting an injunction at this stage of proceedings will unfairly and unjustifiable cripple the operations of the society; considering that there is no compelling reason to warrant the grant of the orders sought.
16. To the Interested Parties, the ex-parte Applicant is inviting this court to interfere with the internal affairs of the society which is not the business or district of this Honourable Court; and that this Application is an afterthought, an abuse of the court process, and should be dismissed.
17. To buttress their cases, the parties filed their respective written submissions. Ex-parte Applicant’s submissions are dated 3rd April, 2024; while the Respondent’s submissions are dated 7th April, 2024; and the Interested Party’s submissions are dated 15th April, 2024.
18. The Ex parte Applicant posited that he has established that where stay in the form of the injunction sought is not granted, the entire judicial review proceedings shall be rendered nugatory and overtaken by events. It is submitted that the purpose of Stay in Judicial Review Proceedings is to ensure that the judicial review proceedings are not rendered nugatory, regardless of the strength or weakness of the case. Reliance was placed on the cases of Taib A. Taib vs Minister for Local Government & Others Mombasa HC Miscellaneous Application 158 of 2006; and R.H. V Ashworth Hospital Authority [2003) WLR 127 at 138.
19. Further, that the principles for grant of an injunction have well been laid out in the case of Giella vs. Cassman Brown. The first principle is that the Applicant must show a prima face case with a probability of success; the second principle is that there shall be irreparable injury that cannot be compensated by damages; and lastly, that the balance of convenience tilts in favor of the Applicant.
20. The ex-parte Applicant maintains that he has established the three principles of grant of an injunction. Further, that it is shown that unless the stay in form of injunction and status quo order are not granted, the entire judicial review shall be rendered nugatory and overtaken by events. The case of T.J. Kajwang vs. Independent Electoral and Boundaries Commissions [2O17] eKLR is relied on.
21. Conversely, the Respondent, opposing the Application submitted that the ex-parte Applicant’s Application is a blatant abuse of Court Process. An invitation for judicial overreach into the affairs of a Society that is governed by its Constitution and Rules; and an invitation to cripple the Society’s affairs; which invitation this Honourable Court should reject.
22. That the Applicant delay in bringing an application for stay, thus the delay should defeat the stay. The Applicant has handled this matter lackadaisically and cannot be heard to seek equitable reliefs. Relied on Republic vs Richard Langat Kerich & 5 others [2013] eKLR; and Osman Tahir Sheikh Said & 2 others v Bank of Africa Limited [2019] eKLR cases.
23. The Applicant hasn’t satisfied the conditions set down in Giella versus Cassman Brown (1973) EA 358. Also, that this Application goes against The Society’s Rules under Rule 1M provide for the Society’s Election Dispute Resolution mechanism, and that he Applicant did not appeal to the Electoral Committee.
24. According to the Respondent, the Applicant’s suit offends the doctrine of Constitution avoidance and exhaustion of internal dispute resolution remedies. It is a strict requirement that the Court cannot review a decision where the Applicant has failed to exhaust internal dispute resolution mechanisms; as stipulated under Section 9 (2) of the Fair Administrative Action Act.
25. That thus, the jurisdiction of the Court has thus not been properly invoked. Also, that the balance of convenience cannot be said to be in the favor of one applicant against a nationwide Society with its members expect a change of leadership since the elections were concluded. Relied on Jeremiah Memba Ocharo v Evangeline Njoka & 3 others [2022] eKLR; and Ahmed Ismael Adan & 9 others v Regional Co-Coordinator, North Eastern Region (NER) & 4 others [2017] eKLR cases.
26. In the end, that the Application has failed to meet the test and should therefore be dismissed with costs to the Respondents.
27. On their part, the Interested Parties, in opposition to the Application, submitted the ex parte Applicant has not met the threshold set out in the case of Giella v Cassman Brown and Co Ltd [1973] EA 358; and that the Applicant has not established a prima facie case to warrant the grant of the orders sought.
28. The Interested Parties posited that this Application is overtaken by events since the AGM has already been conducted. That the Applicant is seeking an appeal disguised as a judicial review. The role of the court in judicial review is supervisory and It is not an appeal and the court should not attempt to adopt the forbidden appellate approach. Relied on Republic v Magistrates Court, Mombasa; Absin Synegy Limited (Interested Party) (Judicial Review E033 of 2021) [2022] KEHC 10 (KLR) (24 January 2022).
29. To the Interested Parties, the Applicant has brought this issue prematurely before exhausting all remedies available under the constitution of the ASK. William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR case was relied upon.
30. It is maintained that the Applicant has not pleaded any injury or harm that he will suffer if the orders sought are not granted. That the balance of convenience tilts in the favor of the Respondents and Interested Parties. The Court of Appeal case of Nguruman Limited –vs- Jan Bonde Nielsen & 2 Others (2014) eKLR; and Chebii Kipkoech vs. Barnabas Tuitoek Bargoria & Another [2019] eKLR cases are relied on.
ANALYSIS AND DETERMINATION
31. After a careful examination of the Application, responses, annexures, and the submissions by learned counsel for each party; the following issue for determination arises: Whether the Application has met the threshold to grant the orders of injunctions as sought.
32. Before dealing with the issue, it is imperative to note that this court in its ruling dated 24th January, 2024 inter alia directed that:
“3. The application shall be served within 3 days for inter partes hearing of prayer C alongside the substantive Notice of Motion.”
33. The Application referred to in the directive is the ex-parte Applicant’s Chamber Summon dated 16th January, 2024; which prayer C sought read as follows:
“C. THAT the leave so granted do operate as stay barring the Interested Parties from holding themselves out as the successful candidates of the elections conducted on the 17th August, 2023 and or office bearers of the Agricultural Society of Kenya.”
34. Order 53 rule 1(4) of the Civil Procedure Rules states that,
“The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise:
Provided that where the circumstances so require, the judge may direct that the application be served for hearing inter partes before grant of leave. Provided further that where the circumstances so require the judge may direct that the question of leave and whether grant of leave shall operate as stay may be heard and determined separately within seven days.”
35. I have perused the materials on record and I have not found any material in prosecution of the prayer for the leave so granted do operate as stay as sought. Ordinarily, the parties canvas this issue by way of skeletal submissions. To my mind, it appears this prayer was abandoned or left unprosecuted.
36. In the alternative, the ex-parte Applicant elected to lodge this instant Application. This present Application is seeking inter alia for orders of injunctions; while the Chamber Summon dated 16th January, 2024 sought for the leave so granted to operate as stay. To my mind, the two are distinct and serve different purposes. To support my position, I refer to the ruling of Supreme Court of Kenya observations in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR that,
“[85] These are issues to be resolved on the basis of recognizable concept. The domain of interlocutory orders is somewhat ruffled, being characterized by injunctions, orders of stay, conservatory orders and yet others. Injunctions, in a proper sense, belong to the sphere of civil claims, and are issued essentially on the basis of convenience as between the parties, and of balances of probabilities. The concept of “stay orders” is more general, and merely denotes that no party nor interested individual or entity is to take action until the Court has given the green light.
[86] “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 supplicant’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.”
37. Additionally, it is critical to note that this court in its directions dated 21st March, 2024 inter alia ordered that, “2. Prayer D is allowed.” Prayer D of this present Application seeks for, “(d) THAT in the alternative, status quo obtaining as of the date of this application be maintained.” Put differently, there is a subsisting order to maintain the status quo as of 19th March, 2024.
38. Turning back to the issue at hand [whether the Application has met the threshold to grant the orders of injunctions as sought] to my mind, the injunction sought by the Applicant is for purposes of maintaining the status quo prevailing until this suit is heard and determined.
39. The Application has also been brought under the provisions of Order 40 Rule 2 of the Civil Procedure Rules the provisions of which are as follows:
“Injunction to restrain breach of contract or other injury [Order 40, rule 2.]
(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The court may by order grant such injunction on such terms as to an inquiry as to damages, the duration of the injunction, keeping an account, giving security or otherwise, as the court deems fit.”
40. A clear reading of the provision directs the provisions envisage an injunction may be granted only where there is a pending suit and where during the pendency of that suit there is threat of breach of contract or other injury. Additionally, the substantive relief in that suit must be restraint of breach of contract or other injury.
41. The Application is further based on the inherent powers of this court. It is brought under Section 3A and 63 of the Civil Procedure Rules which stipulates that,
“3A. Saving of inherent powers of court.
Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”
While;
“63. Supplemental proceedings
In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed—(e) make such other interlocutory orders as may appear to the court to be just and convenient.”
42. Ordinarily in an application for an interlocutory injunction, the Applicant must satisfy the conditions laid down in case of the Giella -v- Cassman Brown & Co. Ltd (1973) EA 358. The Plaintiff must show that he has a prima facie case with a probability of success, and that he stands to suffer irreparable damage. If the court is however in doubt on the foregoing, it will decide the matter on the balance of convenience.
43. The crucial issue for determination is whether the applicant should be granted the order of injunction sought given the circumstances of this case. In the case of Mrao Ltd -v- First American Bank of Kenya Ltd (2003) eKLR, the Court of Appeal defined a prima facie case.
“…. A prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right and the probability of the Applicant’s case upon trial…. It is a case 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 as to call for all explanation from the latter…...”
44. It is agreed that when dealing with an application for an interlocutory injunction, the Court is not necessarily bound by the three principles set out in the Giella -v- Cassman Brown case. The Court may look at the circumstances of the case generally and the overriding objective of the law. In the case of Suleiman -v- Amboseli Resort Ltd (2004) KLR 589, Ojwang, Ag. J (as he then was) stated, inter alia: -
“Counsel for the defendant urged that the shape of the law governing the grant of injunctive relief was long ago, in Giella -v- Cassman Brown, in 1973 cast in stone and no new element may be added to that position. I am not, with respect, in agreement with counsel in that point, for the law has always kept growing to greater levels of refinement, as it expands to cover new situations not exactly foreseen before. Justice Hoffman in the English case of Films Rover International made this point regarding the grant of injunctive relief (1986) 3 AA EL 772 at page 780-781: “A fundamental principle of…... that the court should take whichever course appears to carry the lower risk of injunction if it should turn out to have been ‘wrong’…
Traditionally, on the basis of the well accepted principles set out by the Court of Appeal in Giella -v- Cassman Brown, the Court has had to consider the following questions before granting injunctive relief: Is there a prima facie case; Does the applicant stand to suffer irreparable harm; and on which side does the balance of convenience lie.
Even as those must remain the basic tests, it is worth adopting a further, albeit rather special and more intrinsic test which is now in the nature of general principle. The Court in responding to prayers for interlocutory injunctive relief should always opt the lower rather than the higher risk of injustice…if granting the Applicant’s prayers will support the motion towards full hearing, then should grant those prayers.
I am unable to say at this point in time that the Applicant has a prima facie case with a probability of success, and this matter will depend on the progress of the main suit. Lastly, there would be a larger risk of injustice if I found in favour of the defendant than if I determined this Application in favour of the Applicant.”
45. The guiding principle of the overriding objective is that the court should do justice to the parties before it and their interest must be put on scales. In my view, the applicant has demonstrated sufficient reason for pursuing injunctions as sought. He contended that if the interested Parties are confirmed as office bearers of the Agricultural Society of Kenya, that action would render the suit nugatory.
46. In my view, the Respondents would also be barred from carrying out the functions and mandate of the offices, if the substantive suit succeeds. I must also consider that currently the parties herein are able to act as the office bearers of the Agricultural Society of Kenya while this application and suit pends hearing and substantive determination.
47. From the foregoing, and keeping in mind that there is a subsisting status quo order in place by this court which is not period restricted, and in the balance of convenience, and interest of justice; I make the following orders:
(1). An order of an injunction be and is hereby issued against the Respondents, barring them from confirming, at the Annual General Meeting or any other time, the Interested Parties as office bearers of the Agricultural Society of Kenya including barring the Interested Parties from holding themselves out as the successful candidates of the elections conducted on the 17th August, 2023 pending the hearing and determination of this suit.
(2). Status quo obtaining as of 19th March, 2024 be maintained pending the hearing and determination of this suit.
It is so ordered.
2. The ex-parte Applicant is seeking for the following Orders:
(a) Spent.
(b) THAT pending the hearing and determination of this application an order of injunction be issued against the Respondents, barring them from confirming, at the Annual General Meeting or any other time, the Interested Parties Interested Parties as office bearers of the Agricultural Society of Kenya including barring the Interested Parties from holding themselves out as the successful candidates of the elections conducted on the 17 August, 2023.
(c) THAT pending the hearing and determination of this suit an order of injunction be issued against the Respondents, barring them from confirming, at the Annual General Meeting or any other time, the Interested Parties Interested Parties as office bearers of the Agricultural Society of Kenya including barring the Interested Parties from holding themselves out as the successful candidates of the elections conducted on the 17th August, 2023.
(d) THAT in the alternative, status quo obtaining as of the date of this application be maintained.
(e) THAT the costs of this application be in the cause.
3. The Application is accompanied by a Supporting Affidavit evenly dated, and sworn by Charles Apudo Owelle, the life governor member of the Agricultural Society of Kenya. Also, the Applicant filed a Further Affidavit dated 2nd April, 2024.
4. Condensed, the Applicant’s case is that he filed a court Application for leave to initiate judicial review proceedings against the Respondents on 16th January, 2024. The court on 19th January, 2024 granted the requested leave and directed the prayer for stay to be heard in the substantive suit.
5. The ex-parte Applicant sought the stay on 5th March, 2024 and was directed to apply. It was averred that the 3rd Respondent's Annual General Meeting was scheduled for March 29, 2024; and the Interested Parties would be confirmed as officials; However, that the entire election is under challenge in this Judicial Review Proceedings. Therefore, that this case will be rendered moot and nugatory if the Interested Parties are confirmed at the meeting.
6. That the court deemed it fair and just to grant the requested prayers to preserve the status quo and to hear the Application with prayers 1 and 2 granted in the interim. To which, that the Application be heard and determined in the interest of sustaining the case's status quo.
7. Further, as captured in his said Further Affidavit in response to the Respondent’s Replying Affidavit it is maintained that the Applicant have not delayed the prosecution of this matter, and has filed all necessary submissions as required by the court. That they had also sought stay while filing the granted Application for leave.
8. Accordingly, that the Applicant has moved the application appropriately, and without unreasonable delay. Thus, the Respondents cannot object to it, as they also supported the same position when the matter appeared last in court. The Agricultural Society of Kenya will not face any hardship as its operation has always been without the input of the Interested Parties. That if the Interested Parties were confirmed and take office, they would continue to engage in illegal activities, as the court has already pointed out their election was illegal.
9. The Application is opposed by the Respondents and the Interested Parties.
10. The Respondents filed their Replying Affidavit dated 25th March, 2024 and deponed by Batram Muthoki, the CEO of Agricultural Society of Kenya – on behalf of all the Respondents. It is deponed that the Applicant's Application for an injunction has been brought with an unreasonable delay, indicating no urgency in the matter. That the Application was strategically brought during the High Court Recess and a week to the Annual General Meeting, aiming to clog the Respondents' right of response. Thus, the injunction sought being an equitable relief, should be declined due to the delay.
11. Also, that the Applicant has failed to comply with the Court's orders on two separate occasions, showing that the suit and Application are not as urgent as they portray. The balance of convenience tilts in favor of the Respondents/Society, as the Applicant's case has very little chances of success and would cause significant hardship on the Society, which has not had elected officials in office since March, 2020 due to litigation.
12. As per the deponent, the Society's Rules specifically reject an injunction during the pendency of an election dispute/petition, and granting the injunction sought would be a contravention of the Society's Rules and judicial overreach into its affairs. The Applicant's Application should be dismissed with costs to the Respondents and the Court to vacate the interim orders issued on 21st March, 2024.
13. In further opposition to the Application, the 1st and 2nd Interested Parties filed their respective Replying Affidavit – both dated 25th March, 2024 and sworn respectively by Edith Onzere, and John Muchiri Kibira. The Replying Affidavits are similarly deponed.
14. In the main, it was deponed that the Applicant’s Application is made in bad faith; and only to frustrate the 1st Respondent, and Interested Parties. That the assumption of office by the Interested Parties will not in any way erode/relinquish and or render the instant suit nugatory, since the substratum of the suit is the nullifications of elections results; which the Applicant would still be able to prosecute its Application to quash the results of the election. Also that the society can still hold fresh elections and the duly elected officials elected therefrom can then assume office.
15. Additionally, it is averred that the Applicant has not met the threshold to warrant the grant of injunctive orders as held in the case of Giella v Cassman Brown. That granting an injunction at this stage of proceedings will unfairly and unjustifiable cripple the operations of the society; considering that there is no compelling reason to warrant the grant of the orders sought.
16. To the Interested Parties, the ex-parte Applicant is inviting this court to interfere with the internal affairs of the society which is not the business or district of this Honourable Court; and that this Application is an afterthought, an abuse of the court process, and should be dismissed.
17. To buttress their cases, the parties filed their respective written submissions. Ex-parte Applicant’s submissions are dated 3rd April, 2024; while the Respondent’s submissions are dated 7th April, 2024; and the Interested Party’s submissions are dated 15th April, 2024.
18. The Ex parte Applicant posited that he has established that where stay in the form of the injunction sought is not granted, the entire judicial review proceedings shall be rendered nugatory and overtaken by events. It is submitted that the purpose of Stay in Judicial Review Proceedings is to ensure that the judicial review proceedings are not rendered nugatory, regardless of the strength or weakness of the case. Reliance was placed on the cases of Taib A. Taib vs Minister for Local Government & Others Mombasa HC Miscellaneous Application 158 of 2006; and R.H. V Ashworth Hospital Authority [2003) WLR 127 at 138.
19. Further, that the principles for grant of an injunction have well been laid out in the case of Giella vs. Cassman Brown. The first principle is that the Applicant must show a prima face case with a probability of success; the second principle is that there shall be irreparable injury that cannot be compensated by damages; and lastly, that the balance of convenience tilts in favor of the Applicant.
20. The ex-parte Applicant maintains that he has established the three principles of grant of an injunction. Further, that it is shown that unless the stay in form of injunction and status quo order are not granted, the entire judicial review shall be rendered nugatory and overtaken by events. The case of T.J. Kajwang vs. Independent Electoral and Boundaries Commissions [2O17] eKLR is relied on.
21. Conversely, the Respondent, opposing the Application submitted that the ex-parte Applicant’s Application is a blatant abuse of Court Process. An invitation for judicial overreach into the affairs of a Society that is governed by its Constitution and Rules; and an invitation to cripple the Society’s affairs; which invitation this Honourable Court should reject.
22. That the Applicant delay in bringing an application for stay, thus the delay should defeat the stay. The Applicant has handled this matter lackadaisically and cannot be heard to seek equitable reliefs. Relied on Republic vs Richard Langat Kerich & 5 others [2013] eKLR; and Osman Tahir Sheikh Said & 2 others v Bank of Africa Limited [2019] eKLR cases.
23. The Applicant hasn’t satisfied the conditions set down in Giella versus Cassman Brown (1973) EA 358. Also, that this Application goes against The Society’s Rules under Rule 1M provide for the Society’s Election Dispute Resolution mechanism, and that he Applicant did not appeal to the Electoral Committee.
24. According to the Respondent, the Applicant’s suit offends the doctrine of Constitution avoidance and exhaustion of internal dispute resolution remedies. It is a strict requirement that the Court cannot review a decision where the Applicant has failed to exhaust internal dispute resolution mechanisms; as stipulated under Section 9 (2) of the Fair Administrative Action Act.
25. That thus, the jurisdiction of the Court has thus not been properly invoked. Also, that the balance of convenience cannot be said to be in the favor of one applicant against a nationwide Society with its members expect a change of leadership since the elections were concluded. Relied on Jeremiah Memba Ocharo v Evangeline Njoka & 3 others [2022] eKLR; and Ahmed Ismael Adan & 9 others v Regional Co-Coordinator, North Eastern Region (NER) & 4 others [2017] eKLR cases.
26. In the end, that the Application has failed to meet the test and should therefore be dismissed with costs to the Respondents.
27. On their part, the Interested Parties, in opposition to the Application, submitted the ex parte Applicant has not met the threshold set out in the case of Giella v Cassman Brown and Co Ltd [1973] EA 358; and that the Applicant has not established a prima facie case to warrant the grant of the orders sought.
28. The Interested Parties posited that this Application is overtaken by events since the AGM has already been conducted. That the Applicant is seeking an appeal disguised as a judicial review. The role of the court in judicial review is supervisory and It is not an appeal and the court should not attempt to adopt the forbidden appellate approach. Relied on Republic v Magistrates Court, Mombasa; Absin Synegy Limited (Interested Party) (Judicial Review E033 of 2021) [2022] KEHC 10 (KLR) (24 January 2022).
29. To the Interested Parties, the Applicant has brought this issue prematurely before exhausting all remedies available under the constitution of the ASK. William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR case was relied upon.
30. It is maintained that the Applicant has not pleaded any injury or harm that he will suffer if the orders sought are not granted. That the balance of convenience tilts in the favor of the Respondents and Interested Parties. The Court of Appeal case of Nguruman Limited –vs- Jan Bonde Nielsen & 2 Others (2014) eKLR; and Chebii Kipkoech vs. Barnabas Tuitoek Bargoria & Another [2019] eKLR cases are relied on.
ANALYSIS AND DETERMINATION
31. After a careful examination of the Application, responses, annexures, and the submissions by learned counsel for each party; the following issue for determination arises: Whether the Application has met the threshold to grant the orders of injunctions as sought.
32. Before dealing with the issue, it is imperative to note that this court in its ruling dated 24th January, 2024 inter alia directed that:
“3. The application shall be served within 3 days for inter partes hearing of prayer C alongside the substantive Notice of Motion.”
33. The Application referred to in the directive is the ex-parte Applicant’s Chamber Summon dated 16th January, 2024; which prayer C sought read as follows:
“C. THAT the leave so granted do operate as stay barring the Interested Parties from holding themselves out as the successful candidates of the elections conducted on the 17th August, 2023 and or office bearers of the Agricultural Society of Kenya.”
34. Order 53 rule 1(4) of the Civil Procedure Rules states that,
“The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise:
Provided that where the circumstances so require, the judge may direct that the application be served for hearing inter partes before grant of leave. Provided further that where the circumstances so require the judge may direct that the question of leave and whether grant of leave shall operate as stay may be heard and determined separately within seven days.”
35. I have perused the materials on record and I have not found any material in prosecution of the prayer for the leave so granted do operate as stay as sought. Ordinarily, the parties canvas this issue by way of skeletal submissions. To my mind, it appears this prayer was abandoned or left unprosecuted.
36. In the alternative, the ex-parte Applicant elected to lodge this instant Application. This present Application is seeking inter alia for orders of injunctions; while the Chamber Summon dated 16th January, 2024 sought for the leave so granted to operate as stay. To my mind, the two are distinct and serve different purposes. To support my position, I refer to the ruling of Supreme Court of Kenya observations in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR that,
“[85] These are issues to be resolved on the basis of recognizable concept. The domain of interlocutory orders is somewhat ruffled, being characterized by injunctions, orders of stay, conservatory orders and yet others. Injunctions, in a proper sense, belong to the sphere of civil claims, and are issued essentially on the basis of convenience as between the parties, and of balances of probabilities. The concept of “stay orders” is more general, and merely denotes that no party nor interested individual or entity is to take action until the Court has given the green light.
[86] “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 supplicant’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.”
37. Additionally, it is critical to note that this court in its directions dated 21st March, 2024 inter alia ordered that, “2. Prayer D is allowed.” Prayer D of this present Application seeks for, “(d) THAT in the alternative, status quo obtaining as of the date of this application be maintained.” Put differently, there is a subsisting order to maintain the status quo as of 19th March, 2024.
38. Turning back to the issue at hand [whether the Application has met the threshold to grant the orders of injunctions as sought] to my mind, the injunction sought by the Applicant is for purposes of maintaining the status quo prevailing until this suit is heard and determined.
39. The Application has also been brought under the provisions of Order 40 Rule 2 of the Civil Procedure Rules the provisions of which are as follows:
“Injunction to restrain breach of contract or other injury [Order 40, rule 2.]
(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The court may by order grant such injunction on such terms as to an inquiry as to damages, the duration of the injunction, keeping an account, giving security or otherwise, as the court deems fit.”
40. A clear reading of the provision directs the provisions envisage an injunction may be granted only where there is a pending suit and where during the pendency of that suit there is threat of breach of contract or other injury. Additionally, the substantive relief in that suit must be restraint of breach of contract or other injury.
41. The Application is further based on the inherent powers of this court. It is brought under Section 3A and 63 of the Civil Procedure Rules which stipulates that,
“3A. Saving of inherent powers of court.
Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”
While;
“63. Supplemental proceedings
In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed—(e) make such other interlocutory orders as may appear to the court to be just and convenient.”
42. Ordinarily in an application for an interlocutory injunction, the Applicant must satisfy the conditions laid down in case of the Giella -v- Cassman Brown & Co. Ltd (1973) EA 358. The Plaintiff must show that he has a prima facie case with a probability of success, and that he stands to suffer irreparable damage. If the court is however in doubt on the foregoing, it will decide the matter on the balance of convenience.
43. The crucial issue for determination is whether the applicant should be granted the order of injunction sought given the circumstances of this case. In the case of Mrao Ltd -v- First American Bank of Kenya Ltd (2003) eKLR, the Court of Appeal defined a prima facie case.
“…. A prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right and the probability of the Applicant’s case upon trial…. It is a case 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 as to call for all explanation from the latter…...”
44. It is agreed that when dealing with an application for an interlocutory injunction, the Court is not necessarily bound by the three principles set out in the Giella -v- Cassman Brown case. The Court may look at the circumstances of the case generally and the overriding objective of the law. In the case of Suleiman -v- Amboseli Resort Ltd (2004) KLR 589, Ojwang, Ag. J (as he then was) stated, inter alia: -
“Counsel for the defendant urged that the shape of the law governing the grant of injunctive relief was long ago, in Giella -v- Cassman Brown, in 1973 cast in stone and no new element may be added to that position. I am not, with respect, in agreement with counsel in that point, for the law has always kept growing to greater levels of refinement, as it expands to cover new situations not exactly foreseen before. Justice Hoffman in the English case of Films Rover International made this point regarding the grant of injunctive relief (1986) 3 AA EL 772 at page 780-781: “A fundamental principle of…... that the court should take whichever course appears to carry the lower risk of injunction if it should turn out to have been ‘wrong’…
Traditionally, on the basis of the well accepted principles set out by the Court of Appeal in Giella -v- Cassman Brown, the Court has had to consider the following questions before granting injunctive relief: Is there a prima facie case; Does the applicant stand to suffer irreparable harm; and on which side does the balance of convenience lie.
Even as those must remain the basic tests, it is worth adopting a further, albeit rather special and more intrinsic test which is now in the nature of general principle. The Court in responding to prayers for interlocutory injunctive relief should always opt the lower rather than the higher risk of injustice…if granting the Applicant’s prayers will support the motion towards full hearing, then should grant those prayers.
I am unable to say at this point in time that the Applicant has a prima facie case with a probability of success, and this matter will depend on the progress of the main suit. Lastly, there would be a larger risk of injustice if I found in favour of the defendant than if I determined this Application in favour of the Applicant.”
45. The guiding principle of the overriding objective is that the court should do justice to the parties before it and their interest must be put on scales. In my view, the applicant has demonstrated sufficient reason for pursuing injunctions as sought. He contended that if the interested Parties are confirmed as office bearers of the Agricultural Society of Kenya, that action would render the suit nugatory.
46. In my view, the Respondents would also be barred from carrying out the functions and mandate of the offices, if the substantive suit succeeds. I must also consider that currently the parties herein are able to act as the office bearers of the Agricultural Society of Kenya while this application and suit pends hearing and substantive determination.
47. From the foregoing, and keeping in mind that there is a subsisting status quo order in place by this court which is not period restricted, and in the balance of convenience, and interest of justice; I make the following orders:
(1). An order of an injunction be and is hereby issued against the Respondents, barring them from confirming, at the Annual General Meeting or any other time, the Interested Parties as office bearers of the Agricultural Society of Kenya including barring the Interested Parties from holding themselves out as the successful candidates of the elections conducted on the 17th August, 2023 pending the hearing and determination of this suit.
(2). Status quo obtaining as of 19th March, 2024 be maintained pending the hearing and determination of this suit.
It is so ordered.