(Being an Appeal from the rulings and orders of Hon. B. J. Ofisi (Mrs.) (RM) delivered on 30th October 2020 and Hon. E. Wanjala (Ms) delivered on 17th December 2021 in Milimani Commercial Magistrates Courts Misc. No. E2450 of 2020)
1. The appellant Grace Wangeci Gikunju has filed this appeal through a memorandum of appeal dated 14th January 2022. The record of appeal, which is only titled as Index of Documents was filed on the Case Tracking System on 1st March 2024. The ruling of the trial court was delivered on 30th October 2020.
2. The respondents did not participate in the appeal. The appellant filed affidavits of service to the effect that they had both been served electronically on their WhatsApp numbers. They did not participate in the lower court proceedings either.
3. The appellant filed a miscellaneous application by way of notice of motion dated 3rd September 2020 before the magistrate’s court seeking two substantive orders that:
a. Pending hearing and determination of the suit herein, the respondents be restrained by themselves, agents, servants or anybody acting on their behalf from selling, auctioning, disposing of, advertising for sale or in any way divesting motor vehicle registration number KBK 955L BMW from the applicant (emphasis supplied).
b. The respondents be ordered to release the said motor vehicle registration number KBK 955L BMW to the applicant forthwith upon such terms as may be ordered by the court pending the hearing and determination of the main suit (emphasis supplied).
4. The application was supported by grounds enumerated on the face thereof and expounded in the affidavit of the appellant Grace Wangeci sworn on 3rd September 2020 as follows. That the motor vehicle belonged to the appellant as the registered owner. She annexed to the supporting affidavit a copy of a motor vehicle certificate of registration commonly referred to as log book in her name Grace Wangeci Gikunju. She disposed that she had purchased the said motor vehicle from the 2nd respondent herein Benson Mbugua Maina in 2016 for a sum of KShs 700,000/=. She annexed to her supporting affidavit a copy of motor vehicle sale agreement dated 12th August 2016 between herself Grace Wangeci Gikunju as purchaser and Benson Mbugua Maina as vendor. It shows that she had paid the entire purchase price of KShs 700,000/= and the vendor acknowledged receipt thereof and that she had taken possession of the vehicle.
5. According to the appellant, the 2nd respondent had no claim whatsoever against her in respect of that vehicle. However, the 1st respondent, Edwin Mwangi Wairagu t/a Tradewide Auctioneers had proclaimed and carted away the said motor vehicle in what the appellant described in her affidavit as “in pursuit of an alleged rental arrears debt alleged accumulated on a property which is owned by the 2nd respondent in a premises which was in the past alleged occupied by the 2nd respondent.”
6. Although the details are not indicated in the supporting affidavit, the appellant annexed to the said affidavit a proclamation of attachment/repossession/distrain or moveable property dated 1st July 2020 which bears some information. The details in the proclamation are that the proclamation was for distress for rent arrears amounting to KShs 184,315/= owing by Benson Mbugua Maina of Unit No. 4. to Homeplus Realtors. The items listed as proclaimed were office chairs, reception desks, office tables, cabinets and computers. The subject motor vehicle is not shown in the proclamation as being one of the items proclaimed and neither is there annexed a second proclamation for the vehicle.
7. She deposed further that she only learnt that the motor vehicle had been carted away by the 1st respondent on 1st September 2020. According to her, the 2nd respondent should be liable for his debts singly and therefore the 1st respondent’s actions were malicious, unlawful and illegal and motivated by ill motive and aimed at dispossessing her of her rightful and legal ownership of her said vehicle and with the intention to force her to settle the 2nd respondent’s financial issues of which she was a stranger. That the actions were done by the 1st respondent without conducting due diligence as to the true ownership of the said vehicle as the 2nd respondent had no claim over the said vehicle.
8. As stated above, neither of the respondents filed a reply to the application.
9. The appellant filed submissions urging the trial court to grant the orders sought.
10. In its ruling dated 30th October 2020, the trial court dismissed the application finding that the appellant had not satisfied the conditions for grant of a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules and as laid down in the case of Giella vs Cassman Brown & Co. Ltd. [1973] E.A. 358 and Nguruman Limited vs Jan Bonde Nielsen & 2 Others (2014) eKLR. The trial court found that the orders sought could not be issued in a miscellaneous application as filed by the appellant as she had not filed a substantive suit to enable the court to issue the orders sought. The trial court noted that even though the appellant was the registered owner of the motor vehicle registration number KBK 995L, she had failed to establish that she had a prima facie case with a probability of success.
11. The appellant was dissatisfied with the trial court’s ruling and therefore filed the present appeal based on the following grounds:
a. The learned magistrate erred in law and fact when she failed to note that applicant's application was unopposed.
b. That the learned magistrate erred in law and fact when she failed to appreciate that the applicant's unchallenged prima facie evidence as to the ownership of motor vehicle registration number KBK 955L BMW was not challenged when she failed to uphold the law which states that the logbook is prima facie evidence of proof of ownership of motor vehicle.
c. That the learned magistrate erred in law and fact when she failed to appreciate that both respondents had no legal or equitable claim on the applicant's motor vehicle KBK 955L BMW.
d. That the learned magistrate erred in law and fact when she failed to appreciate that the lack of appearance and participation of both respondents in the matter was evidence that they had no claim whatsoever on the applicant's motor vehicle.
e. That the learned magistrate erred in law and fact when she awarded costs to the respondents (parties) who have never ever even participated in the matter.
f. That the learned magistrate erred in law in failing to appreciate that there was no privity of contract between the appellant and respondent.
g. That the learned magistrate erred in law and fact in failing to appreciate that the appellant motor vehicle was attached erroneously.
h. The learned magistrate erred in law and fact by totally failing to appreciate, evaluate and scrutinize the evidence herein.
12. The appellant therefore prays that the appeal be allowed and that her ownership of the suit motor vehicle be upheld and an order do issue for the release of motor vehicle KBK 955L BMW to her and further that a declaration be made that the respondents’ attachment of the said motor vehicle is a nullity in law. The appellant prays further that trial court’s judgment be reversed and that the judgment be accordingly entered in favour of the appellant.
13. The appellant filed submissions urging her appeal. In her submissions, learned counsel for the appellant indicates that the appeal is from a ruling/judgment delivered by the Senior Principal Magistrate Hon. B. J. Ofisi (Mrs) Milimani Commercial courts dated the 30th day of October, 2020 & Principal Magistrate Hon. E. Wanjala (Ms) on 17th December 2021.
14. The alleged ruling dated 17th December 2021 delivered by Hon. E. Wanjala has not been provided in the record of appeal filed herein. There is no indication from which application such a ruling arose in the Memorandum of Appeal filed herein.
15. This being a first appeal, the duty of this court is to consider, re-evaluate, and re-analyze the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as was held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1958) E.A page 424.
16. I have considered the grounds of appeal and the submissions by the appellant on the same. Learned counsel has raised one issue for determination, that is, whether the appellant had a prima facie case with a probability of success.
17. I find from the grounds of appeal and the submissions by learned counsel that the appellant’s main challenge to the ruling of the trial court, which learned counsel many times refers to erroneously in the submissions as a judgment, is based on two issues. First that she is the owner of the subject motor vehicle as established through the copy of the log book and a fact which was not challenged by the respondents in the court below. Second, that the respondents having failed to respond to the application, it follows that she made out a prima facie case and this entitled her to an order of temporary injunction and release of her said motor vehicle as sought in her application.
18. The appellant relies on the case of Stek Cosmetics Limited v Family Bank Limited & another [2020] KEHC 1464 (KLR) to support her argument that learned magistrate erred in law and in fact in failing to recognize that the appellant's evidence on ownership of the suit motor vehicle was unchallenged as the application was unopposed. In the cited case, the High Court in considering the issue of prima facie case proceeded thus:
“43. The law requires the applicant to show that it has a prima facie case with a probability of success in order to persuade the court to grant an interlocutory injunction in its favour. In Mrao Ltd v First American Bank of Kenya Ltd & 2 others (supra), the Court of Appeal stated:
“The principles which guide the Court in deciding whether or not to grant an interlocutory injunction are well settled. In Giella v Cassman Brown to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner he was considering, which was in relation to the pleadings that had been put forward in that case….So what is a prima facie case? I would say that in civil cases it is a case in 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 an explanation or rebuttal from the latter.”
44. In Nguruman Limited v Jan Bonde Nielsen & 2 others (supra), the Court of Appeal agreed with the definition of a prima facie case in the Mrao case and stated:
“We adopt that definition save to add the following conditions by way of explaining it. The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.”
45. In the present application, the applicant was required to show that its right is being violated or is likely to be violated by the respondents which would shift the burden onto the respondents to explain or rebut the applicant’s claim. It is not enough for the applicant to merely state that it has a prima facie case. That alone will not bring it within the meaning of a prima facie case as required by law.”
19. The issue which was decided by the trial court but which the appellant does not seem to address in this appeal is that a prima facie case is determined from a suit filed and not from a miscellaneous application. The appellant has not addressed the fact that her application was not grounded on a suit or any other originating process. It was hanging in the air without support and therefore was bound to and did fail on that basis.
20. As highlighted above, in her own prayers she sought for orders to issue pending hearing and determination of the main suit. Indeed, this was an interlocutory application. However, there was no main suit that would be heard and determined after the orders sought were granted in the miscellaneous application.
21. The application was based on inter alia Order 40 Rule 1 of the CPR. The said Order provides as follows:
Where in any suit it is proved by affidavit or otherwise—
(a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or
(b) that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,
the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.
22. The rule commences with the provision, “where in any suit ...” and then proceeds to outline the circumstances under which a temporary injunction may be granted. Section 2 of the Civil Procedure Act (Cap. 21) Laws of Kenya (CPA) defines "suit" to mean all civil proceedings commenced in any manner prescribed. Section 19 of the CPA provides that every suit shall be instituted in such manner as may be prescribed by rules. Order 3 Rule 1(1) further provides that every suit shall be instituted by presenting a plaint to the Court, or in such other manner as may be prescribed.
23. The process that commences civil proceedings or a suit, for that matter, in Kenya is by way of a plaint, originating summons, originating notice of motion or petition as alluded to in some provisions of the CPR such as Order 5 Rule 22(1)(a) and Order 8 Rule 4.
24. A notice of motion as was the case filed before the trial court, as such, is not an originating process but an interlocutory process and so does not commence a suit. It is an application which comes within a suit as provided for under Order 51 Rule 1 CPR. Order 40 is titled ‘Temporary Injunctions and Interlocutory Orders’ and goes on to provide for cases in which a temporary injunction may be granted “where in any suit it is proved by affidavit or otherwise.” It follows from the definition of a notice of motion as an interlocutory process that it has to be anchored on an originating process, a suit. That is why the appellant herself stated in her prayers that the same be granted pending hearing and determination of the suit. But it is common knowledge that there was no suit but a miscellaneous application filed by the appellant before the trial court.
25. It is in the suit that prima facie case is made out. Therefore, when there is no suit, no prima facie case can be made out through the notice of motion. That is what the learned magistrate meant when she said in her ruling that the orders sought could not be issued under a miscellaneous application as the appellant had not filed a substantive suit.
26. The following two cases demonstrate further what I am saying herein and what the learned trial magistrate held that the orders sought by the appellant could not have been granted on the basis of the miscellaneous application.
27. In Tuwei v Barsoy [2024] KEELC 7552 (KLR) the Environment and Land Court while considering an issue where the appellant challenged the orders made by the lower court on the ground that the same were premised on a Miscellaneous Application without a pending substantive suit, had this to say:
“From Order 40 Rule 1&2, interlocutory injunctions are meant to preserve the substratum of a suit pending the hearing and determination thereof. It is thereof accepted that substantive orders cannot be issued in miscellaneous applications. This is the position that was adopted by Limo J. in Witmore Investment Limited vs County Government of Kirinyaga & 3 Others (2016) eKLR, where he held as follows:
“So where a party such as an applicant herein seeks an order that in effect appears to resolve with finality an issue in controversy or a contested issue, the application ceases to be interlocutory and it is a misconception to describe it as such. If the applicant wanted to move this court fora final resolution of the issues in controversy raised in the application, it should have moved this court properly in the manner provided by law.”
28. In Chacha & another v Orbit Chemicals Industries Limited & another [2024] KEELC 3278 (KLR) the court again dealing with a similar issue held that:
“In this matter the Applicants did not anchor their Notice of Motion in a suit. They do not have a competent suit before the court.”
29. It is clear from these decisions that a notice of motion, unless expressly provided for under the law, cannot be the basis for a prima facie case which is the first requirement to be satisfied for grant of a temporary injunction.
30. I highlighted in paragraph 12 above part of the submission made by the appellant by underlining in bold the prayer that the trial court’s judgment be reversed and that the judgment be accordingly entered in favour of the appellant because there was no judgment made by the trial court. There was no suit upon which a judgment could have been made. The trial court thus delivered a ruling on the application.
31. The appellant has faulted the learned magistrate’s reference to “rival affidavits and submissions filed” when in fact the respondents never responded to the application. I find that indeed there was such a reference in the ruling but there is no indication that the learned magistrate relied on any extraneous material outside that provided by the appellant. I think it was an error due to inadvertence, failing to cross-check the ruling before delivering it.
32. On the ground of appeal that the learned magistrate erred in law and fact when she awarded costs to the respondents, the order was that the application was dismissed with costs and not that costs were awarded to the respondent. The order may appear to be ambiguous but in view of the fact that the respondents did not participate in the application it follows that they could not be the beneficiary of such an order for costs. The order for costs was therefore unnecessary and ought not to have been made.
33. I wish to wind up by mentioning in passing that as noted above, the notice of proclamation did not indicate the subject motor vehicle as one of the items proclaimed. Therefore, even if the appellant had filed a suit to anchor the application I do not see how she would have obtained the orders sought without showing that it had been proclaimed.
34. In the final analysis, I find that the appeal herein is without merit and the same is dismissed. The order of the trial court dismissing the application for temporary injunction and release of the motor vehicle is affirmed. with no order for costs.
35. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Microsoft Teams this 23rd day of March 2026 in the presence of:
… for the appellant.
… for the respondent.
Ummu h/b for Amina: Court assistant.
1. The appellant Grace Wangeci Gikunju has filed this appeal through a memorandum of appeal dated 14th January 2022. The record of appeal, which is only titled as Index of Documents was filed on the Case Tracking System on 1st March 2024. The ruling of the trial court was delivered on 30th October 2020.
2. The respondents did not participate in the appeal. The appellant filed affidavits of service to the effect that they had both been served electronically on their WhatsApp numbers. They did not participate in the lower court proceedings either.
3. The appellant filed a miscellaneous application by way of notice of motion dated 3rd September 2020 before the magistrate’s court seeking two substantive orders that:
a. Pending hearing and determination of the suit herein, the respondents be restrained by themselves, agents, servants or anybody acting on their behalf from selling, auctioning, disposing of, advertising for sale or in any way divesting motor vehicle registration number KBK 955L BMW from the applicant (emphasis supplied).
b. The respondents be ordered to release the said motor vehicle registration number KBK 955L BMW to the applicant forthwith upon such terms as may be ordered by the court pending the hearing and determination of the main suit (emphasis supplied).
4. The application was supported by grounds enumerated on the face thereof and expounded in the affidavit of the appellant Grace Wangeci sworn on 3rd September 2020 as follows. That the motor vehicle belonged to the appellant as the registered owner. She annexed to the supporting affidavit a copy of a motor vehicle certificate of registration commonly referred to as log book in her name Grace Wangeci Gikunju. She disposed that she had purchased the said motor vehicle from the 2nd respondent herein Benson Mbugua Maina in 2016 for a sum of KShs 700,000/=. She annexed to her supporting affidavit a copy of motor vehicle sale agreement dated 12th August 2016 between herself Grace Wangeci Gikunju as purchaser and Benson Mbugua Maina as vendor. It shows that she had paid the entire purchase price of KShs 700,000/= and the vendor acknowledged receipt thereof and that she had taken possession of the vehicle.
5. According to the appellant, the 2nd respondent had no claim whatsoever against her in respect of that vehicle. However, the 1st respondent, Edwin Mwangi Wairagu t/a Tradewide Auctioneers had proclaimed and carted away the said motor vehicle in what the appellant described in her affidavit as “in pursuit of an alleged rental arrears debt alleged accumulated on a property which is owned by the 2nd respondent in a premises which was in the past alleged occupied by the 2nd respondent.”
6. Although the details are not indicated in the supporting affidavit, the appellant annexed to the said affidavit a proclamation of attachment/repossession/distrain or moveable property dated 1st July 2020 which bears some information. The details in the proclamation are that the proclamation was for distress for rent arrears amounting to KShs 184,315/= owing by Benson Mbugua Maina of Unit No. 4. to Homeplus Realtors. The items listed as proclaimed were office chairs, reception desks, office tables, cabinets and computers. The subject motor vehicle is not shown in the proclamation as being one of the items proclaimed and neither is there annexed a second proclamation for the vehicle.
7. She deposed further that she only learnt that the motor vehicle had been carted away by the 1st respondent on 1st September 2020. According to her, the 2nd respondent should be liable for his debts singly and therefore the 1st respondent’s actions were malicious, unlawful and illegal and motivated by ill motive and aimed at dispossessing her of her rightful and legal ownership of her said vehicle and with the intention to force her to settle the 2nd respondent’s financial issues of which she was a stranger. That the actions were done by the 1st respondent without conducting due diligence as to the true ownership of the said vehicle as the 2nd respondent had no claim over the said vehicle.
8. As stated above, neither of the respondents filed a reply to the application.
9. The appellant filed submissions urging the trial court to grant the orders sought.
10. In its ruling dated 30th October 2020, the trial court dismissed the application finding that the appellant had not satisfied the conditions for grant of a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules and as laid down in the case of Giella vs Cassman Brown & Co. Ltd. [1973] E.A. 358 and Nguruman Limited vs Jan Bonde Nielsen & 2 Others (2014) eKLR. The trial court found that the orders sought could not be issued in a miscellaneous application as filed by the appellant as she had not filed a substantive suit to enable the court to issue the orders sought. The trial court noted that even though the appellant was the registered owner of the motor vehicle registration number KBK 995L, she had failed to establish that she had a prima facie case with a probability of success.
11. The appellant was dissatisfied with the trial court’s ruling and therefore filed the present appeal based on the following grounds:
a. The learned magistrate erred in law and fact when she failed to note that applicant's application was unopposed.
b. That the learned magistrate erred in law and fact when she failed to appreciate that the applicant's unchallenged prima facie evidence as to the ownership of motor vehicle registration number KBK 955L BMW was not challenged when she failed to uphold the law which states that the logbook is prima facie evidence of proof of ownership of motor vehicle.
c. That the learned magistrate erred in law and fact when she failed to appreciate that both respondents had no legal or equitable claim on the applicant's motor vehicle KBK 955L BMW.
d. That the learned magistrate erred in law and fact when she failed to appreciate that the lack of appearance and participation of both respondents in the matter was evidence that they had no claim whatsoever on the applicant's motor vehicle.
e. That the learned magistrate erred in law and fact when she awarded costs to the respondents (parties) who have never ever even participated in the matter.
f. That the learned magistrate erred in law in failing to appreciate that there was no privity of contract between the appellant and respondent.
g. That the learned magistrate erred in law and fact in failing to appreciate that the appellant motor vehicle was attached erroneously.
h. The learned magistrate erred in law and fact by totally failing to appreciate, evaluate and scrutinize the evidence herein.
12. The appellant therefore prays that the appeal be allowed and that her ownership of the suit motor vehicle be upheld and an order do issue for the release of motor vehicle KBK 955L BMW to her and further that a declaration be made that the respondents’ attachment of the said motor vehicle is a nullity in law. The appellant prays further that trial court’s judgment be reversed and that the judgment be accordingly entered in favour of the appellant.
13. The appellant filed submissions urging her appeal. In her submissions, learned counsel for the appellant indicates that the appeal is from a ruling/judgment delivered by the Senior Principal Magistrate Hon. B. J. Ofisi (Mrs) Milimani Commercial courts dated the 30th day of October, 2020 & Principal Magistrate Hon. E. Wanjala (Ms) on 17th December 2021.
14. The alleged ruling dated 17th December 2021 delivered by Hon. E. Wanjala has not been provided in the record of appeal filed herein. There is no indication from which application such a ruling arose in the Memorandum of Appeal filed herein.
15. This being a first appeal, the duty of this court is to consider, re-evaluate, and re-analyze the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as was held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1958) E.A page 424.
16. I have considered the grounds of appeal and the submissions by the appellant on the same. Learned counsel has raised one issue for determination, that is, whether the appellant had a prima facie case with a probability of success.
17. I find from the grounds of appeal and the submissions by learned counsel that the appellant’s main challenge to the ruling of the trial court, which learned counsel many times refers to erroneously in the submissions as a judgment, is based on two issues. First that she is the owner of the subject motor vehicle as established through the copy of the log book and a fact which was not challenged by the respondents in the court below. Second, that the respondents having failed to respond to the application, it follows that she made out a prima facie case and this entitled her to an order of temporary injunction and release of her said motor vehicle as sought in her application.
18. The appellant relies on the case of Stek Cosmetics Limited v Family Bank Limited & another [2020] KEHC 1464 (KLR) to support her argument that learned magistrate erred in law and in fact in failing to recognize that the appellant's evidence on ownership of the suit motor vehicle was unchallenged as the application was unopposed. In the cited case, the High Court in considering the issue of prima facie case proceeded thus:
“43. The law requires the applicant to show that it has a prima facie case with a probability of success in order to persuade the court to grant an interlocutory injunction in its favour. In Mrao Ltd v First American Bank of Kenya Ltd & 2 others (supra), the Court of Appeal stated:
“The principles which guide the Court in deciding whether or not to grant an interlocutory injunction are well settled. In Giella v Cassman Brown to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner he was considering, which was in relation to the pleadings that had been put forward in that case….So what is a prima facie case? I would say that in civil cases it is a case in 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 an explanation or rebuttal from the latter.”
44. In Nguruman Limited v Jan Bonde Nielsen & 2 others (supra), the Court of Appeal agreed with the definition of a prima facie case in the Mrao case and stated:
“We adopt that definition save to add the following conditions by way of explaining it. The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.”
45. In the present application, the applicant was required to show that its right is being violated or is likely to be violated by the respondents which would shift the burden onto the respondents to explain or rebut the applicant’s claim. It is not enough for the applicant to merely state that it has a prima facie case. That alone will not bring it within the meaning of a prima facie case as required by law.”
19. The issue which was decided by the trial court but which the appellant does not seem to address in this appeal is that a prima facie case is determined from a suit filed and not from a miscellaneous application. The appellant has not addressed the fact that her application was not grounded on a suit or any other originating process. It was hanging in the air without support and therefore was bound to and did fail on that basis.
20. As highlighted above, in her own prayers she sought for orders to issue pending hearing and determination of the main suit. Indeed, this was an interlocutory application. However, there was no main suit that would be heard and determined after the orders sought were granted in the miscellaneous application.
21. The application was based on inter alia Order 40 Rule 1 of the CPR. The said Order provides as follows:
Where in any suit it is proved by affidavit or otherwise—
(a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or
(b) that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,
the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.
22. The rule commences with the provision, “where in any suit ...” and then proceeds to outline the circumstances under which a temporary injunction may be granted. Section 2 of the Civil Procedure Act (Cap. 21) Laws of Kenya (CPA) defines "suit" to mean all civil proceedings commenced in any manner prescribed. Section 19 of the CPA provides that every suit shall be instituted in such manner as may be prescribed by rules. Order 3 Rule 1(1) further provides that every suit shall be instituted by presenting a plaint to the Court, or in such other manner as may be prescribed.
23. The process that commences civil proceedings or a suit, for that matter, in Kenya is by way of a plaint, originating summons, originating notice of motion or petition as alluded to in some provisions of the CPR such as Order 5 Rule 22(1)(a) and Order 8 Rule 4.
24. A notice of motion as was the case filed before the trial court, as such, is not an originating process but an interlocutory process and so does not commence a suit. It is an application which comes within a suit as provided for under Order 51 Rule 1 CPR. Order 40 is titled ‘Temporary Injunctions and Interlocutory Orders’ and goes on to provide for cases in which a temporary injunction may be granted “where in any suit it is proved by affidavit or otherwise.” It follows from the definition of a notice of motion as an interlocutory process that it has to be anchored on an originating process, a suit. That is why the appellant herself stated in her prayers that the same be granted pending hearing and determination of the suit. But it is common knowledge that there was no suit but a miscellaneous application filed by the appellant before the trial court.
25. It is in the suit that prima facie case is made out. Therefore, when there is no suit, no prima facie case can be made out through the notice of motion. That is what the learned magistrate meant when she said in her ruling that the orders sought could not be issued under a miscellaneous application as the appellant had not filed a substantive suit.
26. The following two cases demonstrate further what I am saying herein and what the learned trial magistrate held that the orders sought by the appellant could not have been granted on the basis of the miscellaneous application.
27. In Tuwei v Barsoy [2024] KEELC 7552 (KLR) the Environment and Land Court while considering an issue where the appellant challenged the orders made by the lower court on the ground that the same were premised on a Miscellaneous Application without a pending substantive suit, had this to say:
“From Order 40 Rule 1&2, interlocutory injunctions are meant to preserve the substratum of a suit pending the hearing and determination thereof. It is thereof accepted that substantive orders cannot be issued in miscellaneous applications. This is the position that was adopted by Limo J. in Witmore Investment Limited vs County Government of Kirinyaga & 3 Others (2016) eKLR, where he held as follows:
“So where a party such as an applicant herein seeks an order that in effect appears to resolve with finality an issue in controversy or a contested issue, the application ceases to be interlocutory and it is a misconception to describe it as such. If the applicant wanted to move this court fora final resolution of the issues in controversy raised in the application, it should have moved this court properly in the manner provided by law.”
28. In Chacha & another v Orbit Chemicals Industries Limited & another [2024] KEELC 3278 (KLR) the court again dealing with a similar issue held that:
“In this matter the Applicants did not anchor their Notice of Motion in a suit. They do not have a competent suit before the court.”
29. It is clear from these decisions that a notice of motion, unless expressly provided for under the law, cannot be the basis for a prima facie case which is the first requirement to be satisfied for grant of a temporary injunction.
30. I highlighted in paragraph 12 above part of the submission made by the appellant by underlining in bold the prayer that the trial court’s judgment be reversed and that the judgment be accordingly entered in favour of the appellant because there was no judgment made by the trial court. There was no suit upon which a judgment could have been made. The trial court thus delivered a ruling on the application.
31. The appellant has faulted the learned magistrate’s reference to “rival affidavits and submissions filed” when in fact the respondents never responded to the application. I find that indeed there was such a reference in the ruling but there is no indication that the learned magistrate relied on any extraneous material outside that provided by the appellant. I think it was an error due to inadvertence, failing to cross-check the ruling before delivering it.
32. On the ground of appeal that the learned magistrate erred in law and fact when she awarded costs to the respondents, the order was that the application was dismissed with costs and not that costs were awarded to the respondent. The order may appear to be ambiguous but in view of the fact that the respondents did not participate in the application it follows that they could not be the beneficiary of such an order for costs. The order for costs was therefore unnecessary and ought not to have been made.
33. I wish to wind up by mentioning in passing that as noted above, the notice of proclamation did not indicate the subject motor vehicle as one of the items proclaimed. Therefore, even if the appellant had filed a suit to anchor the application I do not see how she would have obtained the orders sought without showing that it had been proclaimed.
34. In the final analysis, I find that the appeal herein is without merit and the same is dismissed. The order of the trial court dismissing the application for temporary injunction and release of the motor vehicle is affirmed. with no order for costs.
35. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Microsoft Teams this 23rd day of March 2026 in the presence of:
… for the appellant.
… for the respondent.
Ummu h/b for Amina: Court assistant.