1. I have considered the Notice of Motion Application dated 19th June, 2023 together with the affidavit in support sworn on even date and the replying affidavit in opposition to the same sworn on 24th July, 2023 and the Grounds of Opposition sworn on even date, and the submissions of counsel, and the applicable law.
2. The principles upon which the court is required to apply in determining the application for injunction are not disputed. In Nguruman Limited v Jane Bonde Nielsen and 2 Others NRB CA Civil Appeal No. 77 of 2012 [2014] eKLR, the Court of Appeal reiterated the settled principles in Giella v Cassman Brown [1973] EA 358 as follows:
3. In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;
a. establish his case only at a prima facie level,
b. demonstrate irreparable injury that cannot be compensated by way of damages if a temporary injunction is not granted, and
c. ally any doubts as to (b) by showing that the balance of convenience is in his favour.
4. 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.
5. As to what constitutes a prima facie case, the Court of Appeal in Mrao Ltd v First American Bank of Kenya Limited and 2 Others [2003] eKLR explained that 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 to call for an explanation or rebuttal from the latter.”
6. In relation to the application under consideration, the applicant seeks to establish that the Bank is not entitled to exercise its statutory power of sale.
7. Having considered the facts as set out in the various affidavits, I note that the applicant, at paragraph 21 of his affidavit sworn on 19th June, 2023 admitted that he is not the registered owner of the property in question.
8. Based on the record, I see that an intended sale was within contemplation of the parties but did not bear fruition owing to failure of the applicant to provide the bank with relevant documents. As such, the sale aborted.
9. Therefore, in the present matter no charge exists between the applicant and the Bank. In Insignia Limited v Zadock & 3 others 2012 eKLR the Court of Appeal reiterated that where the party does not own the property, and the and the owner is not a party to the suit, the applicant will not lose a proprietary right to the property.
10. Guided by the above, I am satisfied that the applicant does not possess a right that is at risk of being infringed to warrant the grant of an injunction. The appropriate relief, if any is merited, would arise in damages.
11. I am satisfied in light of the above that the applicant has not met the threshold for a grant of injunction as set out in Giella as set out above.
12. In particular, I am satisfied that the applicant has failed to make out a prima facie case under the first limb, in accordance with Mrao namely, and I reiterate, “that there exists a right which has apparently been infringed by the opposite party”. (emphasis mine)
13. As stated above, 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. Having failed to pass the first hurdle, the applicant may not leap frog to the next and that brings the matter to an end.
14. Based on the reasons as set out above, I find that the application is without merit. The same is accordingly dismissed with costs.