Introduction and Background
1. The Plaintiff, through his application dated 31 st January 2025, seeks a temporary injunction to restrain the Defendant from interfering with or continuing work on the construction site for a proposed school at Grogan, Korogocho until the main suit is decided. He also seeks the court to order the Defendant to deposit Kshs 3,080,566.00 in court as a condition for being allowed to defend its case. The application is supported by the Plaintiff’s affidavit sworn on 31 st January 2025 and it is opposed by the Defendant through the replying affidavit of Mary Wachuka Kamau sworn on 10 th March 2025. The Defendant has also supplemented its arguments by filing written submissions which together with the pleadings on record I have considered and I will make relevant references to them in my analysis and determination below.
Analysis and Determination
2. The main issues for determination are whether the court ought to grant the injunctive order sought by the Plaintiff and whether the Defendant should deposit the sum of Kshs. 3,080,566.00 as a condition for defending this matter. As submitted by the Defendant, the principles for granting an interlocutory injunction are well settled. The Plaintiff must demonstrate that he has a prima facie case with a probability of success, demonstrate irreparable injury which cannot be compensated by an award of damages if a temporary injunction is not granted, and if the court is in doubt show that the balance of convenience is in his favour (See Giella v Cassman Brown & Co., Ltd. [1973] E.A. 358). In Nguruman Limited v Jan Bonde Nielsen& 2 others [2013] KECA 347 (KLR), the Court of Appeal reiterated these conditions and further clarified that they are to be applied as separate, distinct and logical hurdles which an applicant is expected to surmount sequentially. This means that if the applicant does not establish a prima facie case, then irreparable injury and balance of convenience do not require consideration. On the other hand, if a prima facie case is established, then the court will consider the other conditions.
3. As to what constitutes a prima facie case, the Defendant has also rightly submitted that the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) 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.” The Plaintiff’s case is that he was retained by the Defendant under an express contract to construct a school at Grogan Korogocho but that the Defendant allegedly frustrated the Plaintiff's work by failing to perform its own contractual obligations, locking the Plaintiff out of the construction site on 7 th December 2023 without a formal handover, ignoring a boundary dispute with a neighbour that affected the work and unlawfully terminating the contract and making only a partial payment for work done. The Plaintiff claims Kshs 3,080,566 as the outstanding balance for work already completed and additional damages for anticipated profit on the remaining work.
4. The Plaintiff avers that if the Defendant continues work, it will destroy evidence of the work the Plaintiff had completed, that the Defendant's projects are donor-funded and that there is a risk the funds will be diverted, leaving the Plaintiff unable to collect any judgment amount. Further, that the Plaintiff will suffer irreparable harm if the site is altered and payment is not secure and since the Plaintiff never formally handed over the site, the Defendant would not be prejudiced if the injunction is granted.
5. In response, the Defendant depones that the Plaintiff's application is baseless and an abuse of the court process as the Plaintiff has failed to provide any evidence to justify the grant of an injunction or satisfy the legal requirements for one. The Defendant states that by a letter from the Plaintiff himself, dated 18 th January 2024,he explicitly stated: "we do not have any interest in this site and neither do we intend to do so any other time." The Defendant argues it is patently unreasonable for the Plaintiff to now, over a year later, claim the site must be preserved as evidence when he previously disclaimed all interest and vacated it. The Defendant further states that the demand for a deposit of Kshs. 3,080,566.00 is manifestly unreasonable and another abuse of the court process due to a lack of supporting evidence. The Defendant claims the Plaintiff's true intention is to frustrate its donor-funded project, which operates under strict timelines and it accuses the Plaintiff of knowingly attempting to stall the project and waste the court's time. The Defendant concludes that the Plaintiff's application has no merit and deserves to be dismissed with costs.
6. Going through the application and the response, I am inclined to agree with the Defendant that the Plaintiff has not made out a prima facie case. Indeed, the Defendant has annexed the Plaintiff's own letter of 18 th January 2024 where he wants nothing to do with the construction site which directly contradicts his deposition and claim that the site was never formally handed over and that he maintains a legal interest in it. This contradiction undermines the Plaintiff's credibility and the strength of his prima facie case on the underlying breach of contract claim and suggests that his present application may be an afterthought or a tactical maneuver.
7. Further, whereas the Plaintiff argues that interference with the site will "destroy evidence”, the Defendant correctly points out that the Plaintiff, as a professional contractor, would be expected to have maintained his own records of the work done. The destruction of the physical site does not, therefore, equate to the destruction of all evidence. In any event, the Plaintiff's primary claim is for a specific monetary sum of Kshs. 3,080,566.00 in unpaid fees and damages equivalent to the contract sum. This is the classic definition of a claim that can be compensated by damages. If successful at trial, the court can always order the Defendant to pay this money and there is nothing in the Plaintiff’s application suggesting a unique, irreplaceable value to the site itself that money cannot fix.
8. I also find that the balance of convenience tilts heavily against the Plaintiff. The Defendant deponed that its project is donor-funded and time-bound. An injunction stalling the project indefinitely could lead to loss of funding, breach of donor agreements, and failure to complete the project, which is a significant, tangible hardship. In sum, the Plaintiff has failed to satisfy the conditions for the grant of an injunction to restrain the Defendant from the construction site. The Plaintiff's remedy lies in pursuing his monetary claim at the main trial, not in stopping the entire project.
9. On the Defendant depositing the sum of Kshs. 3,080,566.00, the burden rests on the Plaintiff to establish that the Defendant will be unable to satisfy the decretal sum for any judgment that is passed against it and the court has discretion to determine whether or not to issue such an order (see Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others [2023] KESC 11 (KLR)]. In this case, all I can tell is that the Plaintiff is just apprehensive, with no evidence to back up the apprehension that the Defendant will be unable to settle the decretal sum if judgment is entered against it. Fear or apprehension without a factual or evidential basis is insufficient to support such an application (see Patrick Sagwa Kisia t/a Steg Consultants v Kay Construction Company Limited [2020] KEHC 1279 (KLR )] and ordering the Defendant to immediately deposit the sum prayed for by the Plaintiff without valid reasons and as a condition to defend the suit is an extreme measure not justified here.
Conclusion and Disposition
10. The Plaintiff’s application dated 31 st January 2025 is hereby dismissed with costs.
DATED SIGNED AND DELIVERED virtually this 11 TH DAY OF DECEMBER 2025
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. N/A for the Plaintiff
2. Ms. Muthee for the Defendant
3. Ivan- Court Assistant
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1. The Plaintiff, through his application dated 31 st January 2025, seeks a temporary injunction to restrain the Defendant from interfering with or continuing work on the construction site for a proposed school at Grogan, Korogocho until the main suit is decided. He also seeks the court to order the Defendant to deposit Kshs 3,080,566.00 in court as a condition for being allowed to defend its case. The application is supported by the Plaintiff’s affidavit sworn on 31 st January 2025 and it is opposed by the Defendant through the replying affidavit of Mary Wachuka Kamau sworn on 10 th March 2025. The Defendant has also supplemented its arguments by filing written submissions which together with the pleadings on record I have considered and I will make relevant references to them in my analysis and determination below.
Analysis and Determination
2. The main issues for determination are whether the court ought to grant the injunctive order sought by the Plaintiff and whether the Defendant should deposit the sum of Kshs. 3,080,566.00 as a condition for defending this matter. As submitted by the Defendant, the principles for granting an interlocutory injunction are well settled. The Plaintiff must demonstrate that he has a prima facie case with a probability of success, demonstrate irreparable injury which cannot be compensated by an award of damages if a temporary injunction is not granted, and if the court is in doubt show that the balance of convenience is in his favour (See Giella v Cassman Brown & Co., Ltd. [1973] E.A. 358). In Nguruman Limited v Jan Bonde Nielsen& 2 others [2013] KECA 347 (KLR), the Court of Appeal reiterated these conditions and further clarified that they are to be applied as separate, distinct and logical hurdles which an applicant is expected to surmount sequentially. This means that if the applicant does not establish a prima facie case, then irreparable injury and balance of convenience do not require consideration. On the other hand, if a prima facie case is established, then the court will consider the other conditions.
3. As to what constitutes a prima facie case, the Defendant has also rightly submitted that the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) 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.” The Plaintiff’s case is that he was retained by the Defendant under an express contract to construct a school at Grogan Korogocho but that the Defendant allegedly frustrated the Plaintiff's work by failing to perform its own contractual obligations, locking the Plaintiff out of the construction site on 7 th December 2023 without a formal handover, ignoring a boundary dispute with a neighbour that affected the work and unlawfully terminating the contract and making only a partial payment for work done. The Plaintiff claims Kshs 3,080,566 as the outstanding balance for work already completed and additional damages for anticipated profit on the remaining work.
4. The Plaintiff avers that if the Defendant continues work, it will destroy evidence of the work the Plaintiff had completed, that the Defendant's projects are donor-funded and that there is a risk the funds will be diverted, leaving the Plaintiff unable to collect any judgment amount. Further, that the Plaintiff will suffer irreparable harm if the site is altered and payment is not secure and since the Plaintiff never formally handed over the site, the Defendant would not be prejudiced if the injunction is granted.
5. In response, the Defendant depones that the Plaintiff's application is baseless and an abuse of the court process as the Plaintiff has failed to provide any evidence to justify the grant of an injunction or satisfy the legal requirements for one. The Defendant states that by a letter from the Plaintiff himself, dated 18 th January 2024,he explicitly stated: "we do not have any interest in this site and neither do we intend to do so any other time." The Defendant argues it is patently unreasonable for the Plaintiff to now, over a year later, claim the site must be preserved as evidence when he previously disclaimed all interest and vacated it. The Defendant further states that the demand for a deposit of Kshs. 3,080,566.00 is manifestly unreasonable and another abuse of the court process due to a lack of supporting evidence. The Defendant claims the Plaintiff's true intention is to frustrate its donor-funded project, which operates under strict timelines and it accuses the Plaintiff of knowingly attempting to stall the project and waste the court's time. The Defendant concludes that the Plaintiff's application has no merit and deserves to be dismissed with costs.
6. Going through the application and the response, I am inclined to agree with the Defendant that the Plaintiff has not made out a prima facie case. Indeed, the Defendant has annexed the Plaintiff's own letter of 18 th January 2024 where he wants nothing to do with the construction site which directly contradicts his deposition and claim that the site was never formally handed over and that he maintains a legal interest in it. This contradiction undermines the Plaintiff's credibility and the strength of his prima facie case on the underlying breach of contract claim and suggests that his present application may be an afterthought or a tactical maneuver.
7. Further, whereas the Plaintiff argues that interference with the site will "destroy evidence”, the Defendant correctly points out that the Plaintiff, as a professional contractor, would be expected to have maintained his own records of the work done. The destruction of the physical site does not, therefore, equate to the destruction of all evidence. In any event, the Plaintiff's primary claim is for a specific monetary sum of Kshs. 3,080,566.00 in unpaid fees and damages equivalent to the contract sum. This is the classic definition of a claim that can be compensated by damages. If successful at trial, the court can always order the Defendant to pay this money and there is nothing in the Plaintiff’s application suggesting a unique, irreplaceable value to the site itself that money cannot fix.
8. I also find that the balance of convenience tilts heavily against the Plaintiff. The Defendant deponed that its project is donor-funded and time-bound. An injunction stalling the project indefinitely could lead to loss of funding, breach of donor agreements, and failure to complete the project, which is a significant, tangible hardship. In sum, the Plaintiff has failed to satisfy the conditions for the grant of an injunction to restrain the Defendant from the construction site. The Plaintiff's remedy lies in pursuing his monetary claim at the main trial, not in stopping the entire project.
9. On the Defendant depositing the sum of Kshs. 3,080,566.00, the burden rests on the Plaintiff to establish that the Defendant will be unable to satisfy the decretal sum for any judgment that is passed against it and the court has discretion to determine whether or not to issue such an order (see Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others [2023] KESC 11 (KLR)]. In this case, all I can tell is that the Plaintiff is just apprehensive, with no evidence to back up the apprehension that the Defendant will be unable to settle the decretal sum if judgment is entered against it. Fear or apprehension without a factual or evidential basis is insufficient to support such an application (see Patrick Sagwa Kisia t/a Steg Consultants v Kay Construction Company Limited [2020] KEHC 1279 (KLR )] and ordering the Defendant to immediately deposit the sum prayed for by the Plaintiff without valid reasons and as a condition to defend the suit is an extreme measure not justified here.
Conclusion and Disposition
10. The Plaintiff’s application dated 31 st January 2025 is hereby dismissed with costs.
DATED SIGNED AND DELIVERED virtually this 11 TH DAY OF DECEMBER 2025
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. N/A for the Plaintiff
2. Ms. Muthee for the Defendant
3. Ivan- Court Assistant
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