1.The applicant in a notice of motion dated 20th October 2024 asked for orders that;
a)SPENT
b)SPENT
c)That a permanent injunction do issue to restrain and prevent the defendants /respondents by themselves and/or their agents,servants,employees assigns or otherwise however from proceeding with the intended public action scheduled for 6th November 2024 over KISII MUNICIPALITY BLOCK 111/328 or any other action pending the hearing and determination of the main suit.
d)That costs be provided for
2.THe applicant bases his application on the grounds stated hereunder and upon the annexed affidavit of MERCYLINE CHEPKOSGEI LANGAT and upon such other or further grounds .THAT;
a. The applicant is a renowned medical facility with services rendered to the members of the public in major parts of Kenya
b. The applicant acknowledges having taken a facility with the first defendant and have been servicing the same save that of late but due to the harsh business condition they delayed in having the loan paid on time
c. Recently one of the applicant’s employees saw an advert in one of the dailies by the 2nd defendant imitating that they intend to sell the applicant’s property vide public auction on 6th November 2024 despite the fact that no notices were issued prior to the advertisement
d. If they auction proceeds , then this entire suit and exercise shall be rendered nugatory as the applicants shall be unable to recover the suit property hence they should be given a chance to be heard in the first instance
No notice was ever issued and/or served upon the applicant to enable it correct the default if any. Further that the applicant believed that the account is not in default and if it is then the applicant calls the respondent to supply it with statements of accounts which they have failed to provide despite their several requests.
e. Unless the issues raised above are dealt with and the law followed, the applicant shall be rendered destitute by a process par incurium the law.
f. Currently there are subsisting preservative court orders issued in other matters of the same nature and parties and unless the intended sale is stayed, then there shall be contradictory orders which can leave the court in a dilemma.
g. It is therefore only fair that the sale process is halted until the legality of the same is determined.
h. The Applicant stands to suffer substantial loss and irreparable damage if the interim orders sought are not granted;
i. The Respondents will not suffer any prejudice if the orders sought are issued; and
Unless this Application is heard urgently and orders sought thereof granted, the Applicant is doomed to suffer irreparable loss and damage and the entire Application herein .
3. The application i supported by the annexed supporting affidavit of MARYLINE CHEPKOSGEI LANG’AT who is the vice president of the applicants company, She acknowledged that the applicant took a loan facility a facility from the 1st defendants and fell into arrears for a short while due to the harsh economic times. She said that they saw and advertisement in the Sunday Nation newspaper dated 19th October 2024 intimating that the 2nd respondent intended to sell the applicant’s properties vide public auction on 6th November 2024 . She deponed that no statutory notices were issued before the said advertisement .Also that if the auction is proceeds the suit would be rendered nugatory as they will be unable to recover the suit property. Also that they made several requests for statements of account from the 1st respondent .but the same were not supplied .
APPLICANT’S SUBMISSIONS
4. The applicant in his submissions suggested that the court should determine on 5 issues; whether
a)The applicant has met threshold for granting of an injunctive order
.b)the purported sale by public auction that was to be conducted on the 6th November 2024 was consistent with the provisions of section 90(2) and 96 of Lands Act 2012
c)good or valid title passed to the purported bidders during the auction and/or even to date
d)an independent valuer can be appointed to ascertain the current market value of the suit property
e)the court can grant the orders being sought
The applicant further submits relying on the conditions for grant of temporary injunction settled in the case of Giella v Cassman Brown [1973] EA 358 ;
i)that an applicant has to show a prima facie case with a probability of success
ii)An interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not be adequately compensated by an award of damages
iii)if the court is in doubt it will decide the application on a balance of convenience.
In their submissions they also relied on the Mrao ltd v first american bank of kenya and 2 others {2003}KLR 125 where the court of appeal held that a prima facie case in a civil application includes but not confined to a genuine and arguable case .it is a case which on the material presented to the court a tribunal properly directing itself will conclude there exist right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter’’.
.RESPONDENT’S SUBMISSIONS
5. In his submissions the 1st and 2nd Respondent submitted that the application seeks injunctive relief pending hearing and determination of the main suit and have established the principles inset down in the case of in GIELLA VS CASSMAN BROWN & COMPANY LIMITED [1973]EA 358 the locus classicus in respect of interlocutory injunctions the following issues constitute the issues for determination in this matter ;
i. Has the applicant presented a prima facie case with probability of success?
ii. Will the applicant suffer irreparable injury which would not adequately be compensated by an award of damages if the application is dismissed?
iii. Whether the Honourable court is still in doubt regarding the foregoing and on which side the balance of convenience tilts.
. iv. To whom costs should be awarded.
They further relied on the Court of Appeal’s pronouncements in its determination in Nairobi COA CA NO.77 OF 2012 -Nguruman Limited v Jan Bonde Nielsen and 2 others [2014] eKLR and the Honourable courts pronouncements in Empeut Resort Limited and another v Tourisim Finance Corporation & another[2018] eKLR
the court should determine on four major issues :
a) Whether he intended sale of the subject property by public auction was in accordance with the land act 2012
b) Whether this suit and application is sub judice. They relied on the words on Justice Gikonyo in Albert Mario Corderio and another v Vishram Shamji [2015] eKLR where he stated that an injunction is an equitable remedy a court of equity would still deny the remedy sought if the conduct of the applicant is such that it does not receive any approval of equity….
c) Has the Applicant presented a prima facie case with a probability of success?
The respondents submit ted that the Applicant has not established a prima facie case with a probability of success or at all. The 1st Respondent is guided by the pronouncements of the Court of Appeal in Nairobi–COACA No. 77 of 2012–Nguruman Limited –vs– Jan Bonde Nielsen and 2 Others [2014] eKLR while making reference to Mrao Ltd. v First America Bank of Kenya Ltd & Others [2003] KLR 125. The three judge bench on appeal stated that. –
Prima facie is a Latin phrase for “at first sight,” whose legal meaning and application has been the subject of varying interpretation by courts in many jurisdictions. Phrases like “a serious question to be tried;” “a question which is not vexatious or frivolous;” “an arguable case” have been adopted to describe the burden imposed on the applicant to demonstrate the existence of prima facie case. The leading English House of Lords case of the American Cyanamid Co. Ethicon Ltd [1975] AC 396 is a case in point. The meaning of “prima facie case”, in our view, should not be too much stretched to land in the loss of real purpose. The standard of prima facie case has been applied in this jurisdiction for over 55 years, at least in criminal cases, since the decision in Ramanlal Trambaklal Hatt V. Republic [1957] E.A. 332.
Recently, this court in Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others [2003] KLR 125 fashioned a definition for “prima facie case” in civil cases in the following words.
“In civil cases, a prima facie case 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 to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial.”
That is clearly a standard, which is higher than an arguable case. The Applicant must go beyond merely having an arguable case. Merely raising issues does not suffice. The respondents state that it is incumbent upon this Honourable Court to examine the material evidence presented before it and ask itself if it is possible to discern a right accruing to the Applicant and an imminent infringement. This is the bedrock of a prima facie case which must cumulatively point towards a probability of success for the Applicant’s case upon trial.
The issues raised by the Applicant in the Application revolves around the alleged failure by the Respondents to issue notices and provide a valuation report contrary to prescribed law. The Respondents submit that the evidentiary material placed before this Honourable court does not suffice to either disclose a right accruing to the Applicant or an imminent illegal infringement of the same.
They further rely on Muga Developers limited v Equity Bank of Kenya Ltd &4 others (Civil Application E082 of 2021)[2022] KECA 453 (KLR) where it was stated that ‘’as regards the nugatory aspect whale it is true that the 1st respondent may exercise its statutory power of sale, The applicant’s appeal cannot said to be rendered nugatory. First, the applicant having offered the suit property as security it has become a commercial entity that can be compensated in monetary value .secondly if the applicant is successful in the appeal he would be entitled to damage and it is common knowledge that the 1st respondent is a reputable banking institution and would have n difficulties in paying damages.
d) The court is in doubt regarding the foregoing and on which side the balance of convenience tilts.They relilied on KAJIADO HCCC No.13 of 2018 Empuet Resort Limited & another v Tourisim Finance Corporation &Another [2018] eKLR and Nairobi COACA No.77 of 2012 Nguruman Limited v Jan Bonde Nielsen and 2 others [2014] eKLR if the application fails on either the first or second pillars required for grant of injunctive relief then the third limb should not be considered,It should only be considered if the court is still in doubt the first two
e) Which party should be awarded costs
6. The 1st respondent in his replying affidavit dated 15th November 2024 submits that
a)THAT the application is an abuse of this Honourable court’s process and the same should be dismissed with costs to the respondents that the applicant breached the terms of the facilities as granted by the 1st respondent being in persistent default in repaying the mentioned facilities with the arrears as at 30th October 2024
b)THAT despite there being several reminders to the applicant to make repayments and regularize its accounts the applicant continued to be in default to which the respondent issued the 1st applicant with 30 days notice.
c)that the 1st Respondent acting in good faith, graciously accepted the Applicant's request by granting an extension of time to redeem its arrears and instructed the 2nd Respondent to suspend the intended sale of the properties.
d)THAT despite the extension of time granted to the Applicant and issuance of the redemption notices as described hereinabove, they failed to regularize its accounts with the 1st Respondent and the default of the banking facilities continued and subsisted to the Bank’s detriment.
e)THAT the 1st Respondent instructed the 2nd Respondent to proceed to issue the 15-day notification of sale upon the Applicant and thereafter advertise and sell the suit property through public auction. The 2nd Respondent issued the notification of sale that were received by representatives of the Applicant on 2nd July 2024 and which stated that the advertisement for public auction of the properties would appear in the Daily Nation Newspaper on 4th July 2024.
e)THAT the notification of sale further stated that the public auction was scheduled to take place on 24th July 2024.
f)THAT the Applicant under the name, Mediheal Group Limited, filed a suit in the High Court of Kenya at Eldoret, Eldoret HCCC No. E016 of 2024 Mediheal Group Limited & Swarup Ranjan Mishra –Vs– Eshikhoni Auctioneers with a view to unjustifiably impede the Bank from exercising its remedies as rightfully accrued by law and frustrate the 2nd Respondent from duly discharging its instructions.
g)THAT the court in the said suit granted the Plaintiff/Applicants a temporary injunction stopping the intended sale of properties by public auction scheduled on 22nd July 2024, 23rd July 2024 and 24th July 2024 pending the hearing and determination of the Application inter partes.
h)THAT the 1st Respondent instructed the 2nd Respondent to halt the public auction of the property title No. Kisii Municipality/Block III/328 considering that the orders issued by the High court in Eldoret in Eldoret HCCC No. E016 of 2024 were with respect to the same banking facilities secured by the charges registered over property title No. Kisii Municipality/Block III/328 among other properties.
i)THAT on 15th October 2024, the Court in Eldoret HCCC No. E016 of 2024 vacated the temporary injunction staying the sale by public auction of the Properties as advertised in the Daily Newspaper on 4th July 2024 and the sale as was scheduled to take place on 22nd July 2024, 23rd July 2024 and 24th July 2024.
j)THAT it is on that note the 1st Respondent issued further instructions to the 2nd Respondent to proceed to advertise and sell the suit property through public auction. (Annexed hereto and marked as RB 10 is the letter of instructions addressed to Eshikhoni Auctioneers dated 17th October 2024)
k)THAT indeed, the 1st Respondent's remedies now stand fully crystallized and the Applicant has no other remedy available to them outside regularizing his accounts with the Bank.
l)THAT the Applicant has brought the instant application with a view to unjustifiably impede the Bank from exercising its remedies as rightfully accrued by law.
m)THAT the Applicant has not annexed records of any substantial payment of the banking facilities and therefore continues to be in arrears.
n)THAT the instant application therefore is a response from the Applicant to the maturity and failure to comply with the notices and has therefore been brought in bad faith to frustrate the Respondent from duly discharging its instructions.
o)THAT in addition to the foregoing, the Respondent presents that the Applicants' allegation that the Respondent did not issue them with the redemption notices and notifications of sale is false, lacks foundation and does not warrant any consideration by this Honourable Court.
p)THAT the Respondent invites this Honourable Court to as well examine the conduct of the Applicants who now seeks equitable relief while coming to this Honourable Court with unclean hands, stained with continued and persistent breach and default of express terms of financial facilities and obligations and a further concealment of material facts in its pleadings vis-à-vis the Respondent’s which have at all material times complied with legal obligations and established lawful procedure.
q)THAT the Respondent presents that the balance of convenience in the instant matter should shift to the Respondent and prays that this Honourable Court affirms this position by dismissing the instant Application.
r)THAT consequently, I am advised by the Respondent’s advocates on record, which advise I verily believe to be true that, the application does not meet the mandatory standards and requirements for grant of injunctive relief as sought by the Applicants and humbly pray that this Honourable Court dismisses the instant application in its totality.
s)THAT I am also well advised by the Respondent’s advocates on record, which advise I verily believe to be true that since costs follow the event, the Applicant’s failure in establishing the standards required of an application for injunctive relief and subsequent dismissal has the knock-on effect of warranting this Honourable Court to as well issue costs of the Application to the Respondent, which grant of costs the Respondents hereby pray.
ISSUES AND DETERMINATION
6. It has emerged from the application, the responses and submissions that the applicant seeks a mandatory injunction against the respondents pending hearing and determination of the suit herein . It is trite law that that for a temporary Injunction to be granted in Kenya the applicant has to satisfy the conditions in the celebrated case of Giella versus Casman Brown where conditions were laid down for granting temporary injunctions were laid down as follows ;
a. A prima face case with high chances of success .
b. irreparable loss
b. Balance of convenience
Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others [2014] eKLR,
“
These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially.
7. From the foregoing it is clear that the issues for determination are as follows :
i. Whether the instant suit is sub judice Eldoret HCCC No. E016 of 2024 .
ii. .Whether the applicant has a prima facie case with high chances of success against respondent .
iii. Whether the applicant will suffer irreparable loss unless the orders are granted .
iv. Whether the balance of convenience tilts in favour of the applicant .
v. Whether the applicant has established special circumstances to warrant grant of mandatory interlocutory injunction to issue restraining orders of injunction against the 1st, 2nd and 3rd respondents stopping them from advertising, auctioning, offering for sale, leasing, mortgaging, charging, transferring, assigning, entering upon, trespassing on, taking possession of and/or otherwise dealing with the suit property pending the determination of the suit herein .
8. On whether the suit is subjudice Eldoret HCC no. E016 of 2024, the 1st respondent alleged so and the applicant has denied this Section 6 of the Civil procedure Act provides that –
No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
In the case of Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR it was held : ‘’23. The Supreme Court of Kenya in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)[10] had occasion to pronounce itself on the subject of sub judice. It aptly stated: -
[67] The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.Section 6 of the Civil procedure Act bars courts from dealing with a matter which is pending before another court between the same parties or parties claiming under them over the same subject matter .The applicant deponed that there are preservatory orders in different matters of the same nature and so it would be in fair that the orders be issued for uniformity No evidence has been annexed to the affidavit to establish the same at this stage . I find that it has not been established that the suit herein is subjudice .
9. . On whether the applicant has established a prima facie case with high chances of success , In the case of MRAO LTD VS FIRST AMERICAN BANK OF KENYA LTD AND 2 OTHERS fashioned a definition of a prima facie case as follows
In civil cases a prima facie case is a case in which the material presented to the court , a tribunal properly directing itself will conclude that there exists a right has apparently been by the opposite party to call for an explanation or rebuttal from the latter . a prima facie case is more than an arguable case .it is not sufficient to raise issues but the evidence must show an infringement of a right, the probability of success of the applicants case upon trial. That is clearly a standard ,which is higher than an arguable case.
9. The applicant said that it was not served with Statutory notices under Section 90 and 96 of the Land Act, The respondent say that the same were served (RB 6 and RB7 ) . Also that 45 days notice of redemption (RB 8 ). Further that they had also served applicant with notice of non performing loan (RB 5) and that on vide a letter 16.4.24 Swarup Mishra a director of the applicant acknowledged receipt of the redemption notice and indebt Ness and sought to be allowed 6 weeks to reedeem(RB 9) . The 1st respondent in its supporting affidavit stated that the applicant has fallen into arrears with the loan and owed it Ksh. 701,791,890.30/= as at 30.10.24 as reflected the statements RB 4(a-f) This is not denied. It has not been established at this stage that the notices were not issued to the applicant.
10. On irreparable loss the applicant says that it will suffer I loss unless the orders are granted . The respondent says that the applicant is in arrears and that it will also suffer irreparable loss if the orders are granted . Kenya Commercial Finance Co. Limited - Versus - Afraha Education Society [2001] Vol. 1 EA 86.
If the Applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between”.I find that the value of the subject matter of the charge which is land can be quantified in monetary terms and incase the applicants wins the case it can be compensated in form of damages . The applicant will thus not suffer irreparable loss if the orders are not granted.
11. Whether the applicant has established special circumstances to warrant grant of mandatory interlocutory injunction to issue restraining orders of injunction against the 1st, 2nd and 3rd respondents stopping them from advertising, auctioning, offering for sale, leasing, mortgaging, charging, transferring, assigning, The test whether to grant a mandatory injunction or not is correctly stated in Vol. 24 Halsbury’s Laws of England 4th Edn. Para 948 :“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff …….. a mandatory injunction will be granted on an interlocutory application”
12. In the case of Locabail International Finance Ltd. V. Agroexport and others [1986] 1 ALL ER 901 at pg. 901 it was stated:- “A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.” I find that no such special circumstances have been established . In any event mandatory injunction is the main the prayer in the plaint and if it is granted at this stage then the substratum of the suit will be determined .
13. On whether the applicant is entitled to the orders sought, this is a court of equity and it is trite law that ‘’he who comes to equity must come with clean hands ‘’.The applicant said it does not owe the respondent but the respondent has established at this stage that the applicant is indebted to it . The applicant is not entitled to the orders sought as he has not come to court with clean hands.
14. In the upshot I find that the applicant has not met the threshold for granting mandatory injunction . The same is dismissed with costs . The suit be mentioned on 21.10.25. for pre-trial directions .
a)SPENT
b)SPENT
c)That a permanent injunction do issue to restrain and prevent the defendants /respondents by themselves and/or their agents,servants,employees assigns or otherwise however from proceeding with the intended public action scheduled for 6th November 2024 over KISII MUNICIPALITY BLOCK 111/328 or any other action pending the hearing and determination of the main suit.
d)That costs be provided for
2.THe applicant bases his application on the grounds stated hereunder and upon the annexed affidavit of MERCYLINE CHEPKOSGEI LANGAT and upon such other or further grounds .THAT;
a. The applicant is a renowned medical facility with services rendered to the members of the public in major parts of Kenya
b. The applicant acknowledges having taken a facility with the first defendant and have been servicing the same save that of late but due to the harsh business condition they delayed in having the loan paid on time
c. Recently one of the applicant’s employees saw an advert in one of the dailies by the 2nd defendant imitating that they intend to sell the applicant’s property vide public auction on 6th November 2024 despite the fact that no notices were issued prior to the advertisement
d. If they auction proceeds , then this entire suit and exercise shall be rendered nugatory as the applicants shall be unable to recover the suit property hence they should be given a chance to be heard in the first instance
No notice was ever issued and/or served upon the applicant to enable it correct the default if any. Further that the applicant believed that the account is not in default and if it is then the applicant calls the respondent to supply it with statements of accounts which they have failed to provide despite their several requests.
e. Unless the issues raised above are dealt with and the law followed, the applicant shall be rendered destitute by a process par incurium the law.
f. Currently there are subsisting preservative court orders issued in other matters of the same nature and parties and unless the intended sale is stayed, then there shall be contradictory orders which can leave the court in a dilemma.
g. It is therefore only fair that the sale process is halted until the legality of the same is determined.
h. The Applicant stands to suffer substantial loss and irreparable damage if the interim orders sought are not granted;
i. The Respondents will not suffer any prejudice if the orders sought are issued; and
Unless this Application is heard urgently and orders sought thereof granted, the Applicant is doomed to suffer irreparable loss and damage and the entire Application herein .
3. The application i supported by the annexed supporting affidavit of MARYLINE CHEPKOSGEI LANG’AT who is the vice president of the applicants company, She acknowledged that the applicant took a loan facility a facility from the 1st defendants and fell into arrears for a short while due to the harsh economic times. She said that they saw and advertisement in the Sunday Nation newspaper dated 19th October 2024 intimating that the 2nd respondent intended to sell the applicant’s properties vide public auction on 6th November 2024 . She deponed that no statutory notices were issued before the said advertisement .Also that if the auction is proceeds the suit would be rendered nugatory as they will be unable to recover the suit property. Also that they made several requests for statements of account from the 1st respondent .but the same were not supplied .
APPLICANT’S SUBMISSIONS
4. The applicant in his submissions suggested that the court should determine on 5 issues; whether
a)The applicant has met threshold for granting of an injunctive order
.b)the purported sale by public auction that was to be conducted on the 6th November 2024 was consistent with the provisions of section 90(2) and 96 of Lands Act 2012
c)good or valid title passed to the purported bidders during the auction and/or even to date
d)an independent valuer can be appointed to ascertain the current market value of the suit property
e)the court can grant the orders being sought
The applicant further submits relying on the conditions for grant of temporary injunction settled in the case of Giella v Cassman Brown [1973] EA 358 ;
i)that an applicant has to show a prima facie case with a probability of success
ii)An interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not be adequately compensated by an award of damages
iii)if the court is in doubt it will decide the application on a balance of convenience.
In their submissions they also relied on the Mrao ltd v first american bank of kenya and 2 others {2003}KLR 125 where the court of appeal held that a prima facie case in a civil application includes but not confined to a genuine and arguable case .it is a case which on the material presented to the court a tribunal properly directing itself will conclude there exist right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter’’.
.RESPONDENT’S SUBMISSIONS
5. In his submissions the 1st and 2nd Respondent submitted that the application seeks injunctive relief pending hearing and determination of the main suit and have established the principles inset down in the case of in GIELLA VS CASSMAN BROWN & COMPANY LIMITED [1973]EA 358 the locus classicus in respect of interlocutory injunctions the following issues constitute the issues for determination in this matter ;
i. Has the applicant presented a prima facie case with probability of success?
ii. Will the applicant suffer irreparable injury which would not adequately be compensated by an award of damages if the application is dismissed?
iii. Whether the Honourable court is still in doubt regarding the foregoing and on which side the balance of convenience tilts.
. iv. To whom costs should be awarded.
They further relied on the Court of Appeal’s pronouncements in its determination in Nairobi COA CA NO.77 OF 2012 -Nguruman Limited v Jan Bonde Nielsen and 2 others [2014] eKLR and the Honourable courts pronouncements in Empeut Resort Limited and another v Tourisim Finance Corporation & another[2018] eKLR
the court should determine on four major issues :
a) Whether he intended sale of the subject property by public auction was in accordance with the land act 2012
b) Whether this suit and application is sub judice. They relied on the words on Justice Gikonyo in Albert Mario Corderio and another v Vishram Shamji [2015] eKLR where he stated that an injunction is an equitable remedy a court of equity would still deny the remedy sought if the conduct of the applicant is such that it does not receive any approval of equity….
c) Has the Applicant presented a prima facie case with a probability of success?
The respondents submit ted that the Applicant has not established a prima facie case with a probability of success or at all. The 1st Respondent is guided by the pronouncements of the Court of Appeal in Nairobi–COACA No. 77 of 2012–Nguruman Limited –vs– Jan Bonde Nielsen and 2 Others [2014] eKLR while making reference to Mrao Ltd. v First America Bank of Kenya Ltd & Others [2003] KLR 125. The three judge bench on appeal stated that. –
Prima facie is a Latin phrase for “at first sight,” whose legal meaning and application has been the subject of varying interpretation by courts in many jurisdictions. Phrases like “a serious question to be tried;” “a question which is not vexatious or frivolous;” “an arguable case” have been adopted to describe the burden imposed on the applicant to demonstrate the existence of prima facie case. The leading English House of Lords case of the American Cyanamid Co. Ethicon Ltd [1975] AC 396 is a case in point. The meaning of “prima facie case”, in our view, should not be too much stretched to land in the loss of real purpose. The standard of prima facie case has been applied in this jurisdiction for over 55 years, at least in criminal cases, since the decision in Ramanlal Trambaklal Hatt V. Republic [1957] E.A. 332.
Recently, this court in Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others [2003] KLR 125 fashioned a definition for “prima facie case” in civil cases in the following words.
“In civil cases, a prima facie case 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 to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial.”
That is clearly a standard, which is higher than an arguable case. The Applicant must go beyond merely having an arguable case. Merely raising issues does not suffice. The respondents state that it is incumbent upon this Honourable Court to examine the material evidence presented before it and ask itself if it is possible to discern a right accruing to the Applicant and an imminent infringement. This is the bedrock of a prima facie case which must cumulatively point towards a probability of success for the Applicant’s case upon trial.
The issues raised by the Applicant in the Application revolves around the alleged failure by the Respondents to issue notices and provide a valuation report contrary to prescribed law. The Respondents submit that the evidentiary material placed before this Honourable court does not suffice to either disclose a right accruing to the Applicant or an imminent illegal infringement of the same.
They further rely on Muga Developers limited v Equity Bank of Kenya Ltd &4 others (Civil Application E082 of 2021)[2022] KECA 453 (KLR) where it was stated that ‘’as regards the nugatory aspect whale it is true that the 1st respondent may exercise its statutory power of sale, The applicant’s appeal cannot said to be rendered nugatory. First, the applicant having offered the suit property as security it has become a commercial entity that can be compensated in monetary value .secondly if the applicant is successful in the appeal he would be entitled to damage and it is common knowledge that the 1st respondent is a reputable banking institution and would have n difficulties in paying damages.
d) The court is in doubt regarding the foregoing and on which side the balance of convenience tilts.They relilied on KAJIADO HCCC No.13 of 2018 Empuet Resort Limited & another v Tourisim Finance Corporation &Another [2018] eKLR and Nairobi COACA No.77 of 2012 Nguruman Limited v Jan Bonde Nielsen and 2 others [2014] eKLR if the application fails on either the first or second pillars required for grant of injunctive relief then the third limb should not be considered,It should only be considered if the court is still in doubt the first two
e) Which party should be awarded costs
6. The 1st respondent in his replying affidavit dated 15th November 2024 submits that
a)THAT the application is an abuse of this Honourable court’s process and the same should be dismissed with costs to the respondents that the applicant breached the terms of the facilities as granted by the 1st respondent being in persistent default in repaying the mentioned facilities with the arrears as at 30th October 2024
b)THAT despite there being several reminders to the applicant to make repayments and regularize its accounts the applicant continued to be in default to which the respondent issued the 1st applicant with 30 days notice.
c)that the 1st Respondent acting in good faith, graciously accepted the Applicant's request by granting an extension of time to redeem its arrears and instructed the 2nd Respondent to suspend the intended sale of the properties.
d)THAT despite the extension of time granted to the Applicant and issuance of the redemption notices as described hereinabove, they failed to regularize its accounts with the 1st Respondent and the default of the banking facilities continued and subsisted to the Bank’s detriment.
e)THAT the 1st Respondent instructed the 2nd Respondent to proceed to issue the 15-day notification of sale upon the Applicant and thereafter advertise and sell the suit property through public auction. The 2nd Respondent issued the notification of sale that were received by representatives of the Applicant on 2nd July 2024 and which stated that the advertisement for public auction of the properties would appear in the Daily Nation Newspaper on 4th July 2024.
e)THAT the notification of sale further stated that the public auction was scheduled to take place on 24th July 2024.
f)THAT the Applicant under the name, Mediheal Group Limited, filed a suit in the High Court of Kenya at Eldoret, Eldoret HCCC No. E016 of 2024 Mediheal Group Limited & Swarup Ranjan Mishra –Vs– Eshikhoni Auctioneers with a view to unjustifiably impede the Bank from exercising its remedies as rightfully accrued by law and frustrate the 2nd Respondent from duly discharging its instructions.
g)THAT the court in the said suit granted the Plaintiff/Applicants a temporary injunction stopping the intended sale of properties by public auction scheduled on 22nd July 2024, 23rd July 2024 and 24th July 2024 pending the hearing and determination of the Application inter partes.
h)THAT the 1st Respondent instructed the 2nd Respondent to halt the public auction of the property title No. Kisii Municipality/Block III/328 considering that the orders issued by the High court in Eldoret in Eldoret HCCC No. E016 of 2024 were with respect to the same banking facilities secured by the charges registered over property title No. Kisii Municipality/Block III/328 among other properties.
i)THAT on 15th October 2024, the Court in Eldoret HCCC No. E016 of 2024 vacated the temporary injunction staying the sale by public auction of the Properties as advertised in the Daily Newspaper on 4th July 2024 and the sale as was scheduled to take place on 22nd July 2024, 23rd July 2024 and 24th July 2024.
j)THAT it is on that note the 1st Respondent issued further instructions to the 2nd Respondent to proceed to advertise and sell the suit property through public auction. (Annexed hereto and marked as RB 10 is the letter of instructions addressed to Eshikhoni Auctioneers dated 17th October 2024)
k)THAT indeed, the 1st Respondent's remedies now stand fully crystallized and the Applicant has no other remedy available to them outside regularizing his accounts with the Bank.
l)THAT the Applicant has brought the instant application with a view to unjustifiably impede the Bank from exercising its remedies as rightfully accrued by law.
m)THAT the Applicant has not annexed records of any substantial payment of the banking facilities and therefore continues to be in arrears.
n)THAT the instant application therefore is a response from the Applicant to the maturity and failure to comply with the notices and has therefore been brought in bad faith to frustrate the Respondent from duly discharging its instructions.
o)THAT in addition to the foregoing, the Respondent presents that the Applicants' allegation that the Respondent did not issue them with the redemption notices and notifications of sale is false, lacks foundation and does not warrant any consideration by this Honourable Court.
p)THAT the Respondent invites this Honourable Court to as well examine the conduct of the Applicants who now seeks equitable relief while coming to this Honourable Court with unclean hands, stained with continued and persistent breach and default of express terms of financial facilities and obligations and a further concealment of material facts in its pleadings vis-à-vis the Respondent’s which have at all material times complied with legal obligations and established lawful procedure.
q)THAT the Respondent presents that the balance of convenience in the instant matter should shift to the Respondent and prays that this Honourable Court affirms this position by dismissing the instant Application.
r)THAT consequently, I am advised by the Respondent’s advocates on record, which advise I verily believe to be true that, the application does not meet the mandatory standards and requirements for grant of injunctive relief as sought by the Applicants and humbly pray that this Honourable Court dismisses the instant application in its totality.
s)THAT I am also well advised by the Respondent’s advocates on record, which advise I verily believe to be true that since costs follow the event, the Applicant’s failure in establishing the standards required of an application for injunctive relief and subsequent dismissal has the knock-on effect of warranting this Honourable Court to as well issue costs of the Application to the Respondent, which grant of costs the Respondents hereby pray.
ISSUES AND DETERMINATION
6. It has emerged from the application, the responses and submissions that the applicant seeks a mandatory injunction against the respondents pending hearing and determination of the suit herein . It is trite law that that for a temporary Injunction to be granted in Kenya the applicant has to satisfy the conditions in the celebrated case of Giella versus Casman Brown where conditions were laid down for granting temporary injunctions were laid down as follows ;
a. A prima face case with high chances of success .
b. irreparable loss
b. Balance of convenience
Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others [2014] eKLR,
“
These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially.
7. From the foregoing it is clear that the issues for determination are as follows :
i. Whether the instant suit is sub judice Eldoret HCCC No. E016 of 2024 .
ii. .Whether the applicant has a prima facie case with high chances of success against respondent .
iii. Whether the applicant will suffer irreparable loss unless the orders are granted .
iv. Whether the balance of convenience tilts in favour of the applicant .
v. Whether the applicant has established special circumstances to warrant grant of mandatory interlocutory injunction to issue restraining orders of injunction against the 1st, 2nd and 3rd respondents stopping them from advertising, auctioning, offering for sale, leasing, mortgaging, charging, transferring, assigning, entering upon, trespassing on, taking possession of and/or otherwise dealing with the suit property pending the determination of the suit herein .
8. On whether the suit is subjudice Eldoret HCC no. E016 of 2024, the 1st respondent alleged so and the applicant has denied this Section 6 of the Civil procedure Act provides that –
No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
In the case of Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR it was held : ‘’23. The Supreme Court of Kenya in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)[10] had occasion to pronounce itself on the subject of sub judice. It aptly stated: -
[67] The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.Section 6 of the Civil procedure Act bars courts from dealing with a matter which is pending before another court between the same parties or parties claiming under them over the same subject matter .The applicant deponed that there are preservatory orders in different matters of the same nature and so it would be in fair that the orders be issued for uniformity No evidence has been annexed to the affidavit to establish the same at this stage . I find that it has not been established that the suit herein is subjudice .
9. . On whether the applicant has established a prima facie case with high chances of success , In the case of MRAO LTD VS FIRST AMERICAN BANK OF KENYA LTD AND 2 OTHERS fashioned a definition of a prima facie case as follows
In civil cases a prima facie case is a case in which the material presented to the court , a tribunal properly directing itself will conclude that there exists a right has apparently been by the opposite party to call for an explanation or rebuttal from the latter . a prima facie case is more than an arguable case .it is not sufficient to raise issues but the evidence must show an infringement of a right, the probability of success of the applicants case upon trial. That is clearly a standard ,which is higher than an arguable case.
9. The applicant said that it was not served with Statutory notices under Section 90 and 96 of the Land Act, The respondent say that the same were served (RB 6 and RB7 ) . Also that 45 days notice of redemption (RB 8 ). Further that they had also served applicant with notice of non performing loan (RB 5) and that on vide a letter 16.4.24 Swarup Mishra a director of the applicant acknowledged receipt of the redemption notice and indebt Ness and sought to be allowed 6 weeks to reedeem(RB 9) . The 1st respondent in its supporting affidavit stated that the applicant has fallen into arrears with the loan and owed it Ksh. 701,791,890.30/= as at 30.10.24 as reflected the statements RB 4(a-f) This is not denied. It has not been established at this stage that the notices were not issued to the applicant.
10. On irreparable loss the applicant says that it will suffer I loss unless the orders are granted . The respondent says that the applicant is in arrears and that it will also suffer irreparable loss if the orders are granted . Kenya Commercial Finance Co. Limited - Versus - Afraha Education Society [2001] Vol. 1 EA 86.
If the Applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between”.I find that the value of the subject matter of the charge which is land can be quantified in monetary terms and incase the applicants wins the case it can be compensated in form of damages . The applicant will thus not suffer irreparable loss if the orders are not granted.
11. Whether the applicant has established special circumstances to warrant grant of mandatory interlocutory injunction to issue restraining orders of injunction against the 1st, 2nd and 3rd respondents stopping them from advertising, auctioning, offering for sale, leasing, mortgaging, charging, transferring, assigning, The test whether to grant a mandatory injunction or not is correctly stated in Vol. 24 Halsbury’s Laws of England 4th Edn. Para 948 :“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff …….. a mandatory injunction will be granted on an interlocutory application”
12. In the case of Locabail International Finance Ltd. V. Agroexport and others [1986] 1 ALL ER 901 at pg. 901 it was stated:- “A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.” I find that no such special circumstances have been established . In any event mandatory injunction is the main the prayer in the plaint and if it is granted at this stage then the substratum of the suit will be determined .
13. On whether the applicant is entitled to the orders sought, this is a court of equity and it is trite law that ‘’he who comes to equity must come with clean hands ‘’.The applicant said it does not owe the respondent but the respondent has established at this stage that the applicant is indebted to it . The applicant is not entitled to the orders sought as he has not come to court with clean hands.
14. In the upshot I find that the applicant has not met the threshold for granting mandatory injunction . The same is dismissed with costs . The suit be mentioned on 21.10.25. for pre-trial directions .