1. The 1st plaintiff filed an application dated 19th November, 2024 seeking an order for the Court to reinstate exparte, the interim orders issued on 19th August, 2024 restraining the respondent, its employees, servants, agents or any other person claiming through it from disposing, transferring or dealing with the properties listed in the said application pending the inter parties hearing.
2. A similar order was sought pending the hearing and determination of the earlier application dated 16th August, 2024. The applicant also seeks an order to vary/or review this Court’s orders issued on 30th August, 2024 extending the interim orders issued on 19th August, 2024. It must however be noted that on 19th August, 2024, I gave an interim injunction at exparte stage.
3. The application dated 19th August, 2024 came up for further directions on 30th August, 2024. On that day, Mr. Kenneth Wilson Advocate, learned Counsel for the defendant informed this Court that the loan amount owed by the 1st plaintiff is Kshs.6 Billion.
4. He stated that a conditional order could be made for the 1st plaintiff to pay Kshs.50 Million. Mr. Maritim who appeared for the 1st plaintiff on that day indicated that his client had paid Kshs.19 Million in July, 2024. He wished not to bind himself to conditional orders being granted. On 30th August, 2024, I gave directions for filing of responses to the application dated 19th August, 2024 and extended the interim orders that I had earlier granted.
5. Extension of interim orders was granted subject to the 1st plaintiff/applicant or any other plaintiff in this case depositing an amount of Kshs. 30 Million in the loan account with the defendant within 45 days from 30th August, 2024.
6. Instead of complying with the said order, the 1st plaintiff filed the present application dated 19th November, 2024 explaining that it had been unable to comply with the said order and prayed for extension of the interim orders on the basis that it has since entered into a contract with Dogo Complex Tanzania Limited for construction of 520 residential units for the contract sum of Kshs.3,693,988,580.05 for a period of 24 months. According to Ms Muyoka Advocate, the 1st plaintiff will be liquid from January 2025, and it will be in a position to deposit the amount ordered by the Court.
7. Mr. Kenneth Wilson opposed the application dated 19th November, 2024 and pointed out that the 1st plaintiff is non-committal that it will be able to raise the sum of Kshs.30 Million.
DETERMINATION
8. When this Court granted a conditional injunction, it exercised its direction judiciously. Noting that the 1st plaintiff is said to owe Kshs.6 Billion to the defendant, the amount of Kshs.30 Million that I ordered the 1st plaintiff to deposit with the defendant within 45 days was a drop in the Ocean.
9. Now that the 1st plaintiff has not complied, exercising my discretion in its favour by extending the interim orders would be whimsical, and at the same time capricious as against the defendant. Making promises of payment to the defendant based on a contract that will be performed in the future does not sell. Anything could go wrong, including revocation of the said contract.
10. I have not been given sufficient reason to extend the conditional interim orders that I granted on 30th August, 2024. That prayer of the application dated 19th November, 2024 is hereby declined.
It is so ordered
DATED, SIGNED and DELIVERED at NAIROBI on this day of 21st November, 2024. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Kenneth Wilson h/b for Mr. Kongere for the defendant
Ms Muyoka h/b for Dr. Mutubwa for the plaintiff.
Ms B. Wokabi – Court Assistant.
2. A similar order was sought pending the hearing and determination of the earlier application dated 16th August, 2024. The applicant also seeks an order to vary/or review this Court’s orders issued on 30th August, 2024 extending the interim orders issued on 19th August, 2024. It must however be noted that on 19th August, 2024, I gave an interim injunction at exparte stage.
3. The application dated 19th August, 2024 came up for further directions on 30th August, 2024. On that day, Mr. Kenneth Wilson Advocate, learned Counsel for the defendant informed this Court that the loan amount owed by the 1st plaintiff is Kshs.6 Billion.
4. He stated that a conditional order could be made for the 1st plaintiff to pay Kshs.50 Million. Mr. Maritim who appeared for the 1st plaintiff on that day indicated that his client had paid Kshs.19 Million in July, 2024. He wished not to bind himself to conditional orders being granted. On 30th August, 2024, I gave directions for filing of responses to the application dated 19th August, 2024 and extended the interim orders that I had earlier granted.
5. Extension of interim orders was granted subject to the 1st plaintiff/applicant or any other plaintiff in this case depositing an amount of Kshs. 30 Million in the loan account with the defendant within 45 days from 30th August, 2024.
6. Instead of complying with the said order, the 1st plaintiff filed the present application dated 19th November, 2024 explaining that it had been unable to comply with the said order and prayed for extension of the interim orders on the basis that it has since entered into a contract with Dogo Complex Tanzania Limited for construction of 520 residential units for the contract sum of Kshs.3,693,988,580.05 for a period of 24 months. According to Ms Muyoka Advocate, the 1st plaintiff will be liquid from January 2025, and it will be in a position to deposit the amount ordered by the Court.
7. Mr. Kenneth Wilson opposed the application dated 19th November, 2024 and pointed out that the 1st plaintiff is non-committal that it will be able to raise the sum of Kshs.30 Million.
DETERMINATION
8. When this Court granted a conditional injunction, it exercised its direction judiciously. Noting that the 1st plaintiff is said to owe Kshs.6 Billion to the defendant, the amount of Kshs.30 Million that I ordered the 1st plaintiff to deposit with the defendant within 45 days was a drop in the Ocean.
9. Now that the 1st plaintiff has not complied, exercising my discretion in its favour by extending the interim orders would be whimsical, and at the same time capricious as against the defendant. Making promises of payment to the defendant based on a contract that will be performed in the future does not sell. Anything could go wrong, including revocation of the said contract.
10. I have not been given sufficient reason to extend the conditional interim orders that I granted on 30th August, 2024. That prayer of the application dated 19th November, 2024 is hereby declined.
It is so ordered
DATED, SIGNED and DELIVERED at NAIROBI on this day of 21st November, 2024. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Kenneth Wilson h/b for Mr. Kongere for the defendant
Ms Muyoka h/b for Dr. Mutubwa for the plaintiff.
Ms B. Wokabi – Court Assistant.