1. On 05.09.2023 I dismissed the Plaintiff’s application dated 07.06.2023 seeking to restrain the 2nd Defendant from paying the 1st Defendant USD 243, 600,00 pursuant to a Performance Guaranteed issued by the 2nd Defendant.
2. The Plaintiff has not filed its application dated 08.09.2023 seeking injunction pending appeal as it seeks to appeal against the ruling and order. This court has jurisdiction to grant an injunction pending appeal (see Erinford Property Limited v Cheshire County Council [1974] EA 448). Assuming and indeed accepting that the Plaintiff has an arguable appeal, the question for the court is whether the appeal will be rendered by refusal to grant an injunction or whether the applicant will suffer loss as a result of the refusal to grant an injunction which may not be remedied by an award of damages.
3. I have considered the depositions in support of and in opposition to the application and the arguments by the parties.
4. I am not satisfied the Plaintiff will suffer irreparable loss and or damage which cannot be compensated. The issue herein is a performance guarantee whose recall was within the contemplation of the parties and whose value is finite. It has not been alleged or urged that Defendants will not be in a position to recompense the Appellant. I therefore reject and dismiss the application dated 08.09,2023 with costs to the Defendants.
DATED and DELIVERED at NAIROBI this 15th day of SEPTEMBER 2023
D. S. MAJANJA
JUDGE