PRISCILLA NYAMBURA NJUE VS GEOCHEM MIDDLE EAST LIMITED

1. The plaintiff/applicant filed a Notice of Motion application dated 24th May, 2021 pursuant to the provisions of Order 39 Rule 5, Order 40 Rules 1, 4 & 11 of the Civil Procedure Rules, Section 3A, 63(e) & 31 of the Civil Procedure Act, Section 5(1) of the Judicature Act, Cap 8 of the Laws of Kenya, Article 159 of the Constitution of Kenya and all other enabling provisions of the Constitution and the law seeking the following orders -
i) Spent;
ii) Spent;
iii)  That pending the interpartes hearing of this application, this Honourable Court be pleased to grant an order of temporary injunction restraining the interested party from releasing or disbursing directly to the defendant/respondent any portion of money payable to the respondent out of any decree or order issued by this Court in High Court Misc. Civil Cause No. 455 of 2016 Kenya Bureau of Standards vs Geochem Middle East Limited;
iv)  Spent;
v) That this Honourable Court be pleased to order the defendant/respondent to deposit in this Court or a joint interest earning account the sum of United Dollars One Million Nine Hundred and Twenty Five Thousand, Nine Hundred and Twenty Five One Hundred and Eighty Eight and Nine Cents (US$ 1,925,188.09) plus applicable interest or such other sums or security as the Court shall deem appropriate and adequate to be held by this Court pending the determination of this suit;
vi)  Spent;
vii) That this Honourable Court be pleased to order the defendant/respondent to furnish security in the sum of United Dollars One Million Nine Hundred and Twenty Five Thousand, Nine Hundred and Twenty Five One Hundred and Eighty Eight and Nine Cents (US$ 1,925,188.09) plus applicable interest or such other sums or insecurity (sic) as the Court shall deem appropriate and adequate as may be sufficient to satisfy any consequential decree in term of the sums sought by the plaintiff or to appear and show cause why he should not furnish security;
viii) That the Honourable Court be pleased to make such other order for the purpose of staying the preventing the wasting (sic), misappropriation, alienation and/or expatriate funds derived from the decree issued in sale, removal or disposition of the High Court Misc. Civil Cause No. 455 of 2016 Kenya Bureau of Standards vs Geochem Middle East Limited;
ix) That the costs if this application be borne by the defendants; and
x) That this Honourable Court be pleased to make such other orders as it deems fit and just in the circumstances.
2. The application is anchored on the grounds on the face of the Motion and is supported by affidavits sworn by Priscilla Nyambura Njue, the plaintiff herein, on 24th May, 2021 and 20th January, 2022. In opposition thereto, the 1st defendant filed a replying affidavit sworn by Pradeep Gopal, the 1st defendant’s Executive Director on 28th October, 2021. The 2nd respondent filed a replying affidavit sworn by Rajiv Bahl on 28th October, 2021. The interested party filed a replying affidavit sworn on 25th February, 2022 by Miriam Kahiro, learned Counsel for the interested party.
3. The application was canvassed by way of written submissions. The plaintiff’s submissions were filed by the law firm of Gichamba & Company Advocates on 22nd March, 2022, whereas the defendants’ submissions were filed on 4th April, 2022 by the law firm of Issa & Company Advocates. The interested party did not file any written submissions.
4. Mr. Gichamba, learned Counsel for the plaintiff submitted that vide an agreement dated 5th June, 2009, the interested party entered into an agreement with the 1st defendant for the inspection of petroleum and petroleum products imports but the said contract was suspended by the Minister of Industrialization vide a Legal Notice Number 142 of 2009 owing to intervening factors within the petroleum industry. He stated that thereafter, the contract was terminated and the 1st defendant referred the dispute to arbitration as provided for in the contract. That subsequently, on 29th July, 2016, the Arbitral Tribunal issued an award in favour of the 1st defendant and the latter sought to enforce the same vide Misc. Application No. 455 of 2016, wherein the said award was confirmed as a judgment of the Court.
5. The plaintiff’s Counsel submitted that the interested party lodged an appeal against the said judgment being Civil Appeal No. 259 of 2018 and the Court of Appeal set aside the said judgment. That consequently, the 1st defendant lodged an appeal against it at the Supreme Court vide Petition No. 47 of 2019 and the Supreme Court held that the Court of Appeal lacked jurisdiction to entertain the appeal that was filed before it, thereby reinstating the High Court’s findings.
6. Mr. Gichamba stated that the plaintiff was engaged by the 1st defendant through the 2nd defendant when the contract between the defendants and the interested party was terminated, and that the plaintiff was required to advise and identify a suitable Legal Counsel to represent the defendants in the arbitration dispute, and act as the defendants’ agent during the entire period.
7. It was stated by Counsel that the plaintiff was also required amongst other roles and duties, to collect documentation from relevant Government offices such as KEBS and KRA that would prove to be very handy and useful in the defendants’ claim against the interested party. He further stated that the plaintiff sought to be compensated by an award of 9% commission which was thereafter enhanced to an agreed sum of 12.5% commission on the sums awardable upon the decision of the Arbitral Tribunal. He contended that a previous suit being HCCA No. 415 of 2016 had been filed between the parties herein, save for the 2nd defendant but it was withdrawn without the plaintiff’s consent before it was ventilated at a hearing thus the only remedy was to file a new suit.
8. It was submitted by Mr. Gichamba that Section 3(1) of the Law of Contract Act does not make all contracts void and unenforceable if they are not reduced into writing. He contended that there was a binding agreement between the defendants and the plaintiff, wherein her role was codified to that of an agent. He further submitted that the plaintiff’s role has not been denied by the defendants, who contended that the plaintiff undertook the stated tasks as a friend to the 2nd defendant, who was at the time acting as the Managing Director of the 1st defendant and not in his individual capacity. Counsel cited Section 35(1) of the Companies Act and contended that a contract may be made on behalf of a company by a person acting under its express or implied authority. He argued that pursuant to the provisions of Section 34 of the Companies Act, when a person is dealing with a company in good faith, the directors’ power to bind the company or authorize others to do so is free from any limitation contained in the company’s constitution.
9. Mr. Gichamba submitted that in considering whether there was a valid contract, it would be just for the Court to ascertain the intention of the parties from their conduct and where there is vagueness or ambiguity, the Court can interpret such intention that may give reasonable meaning to the agreement in dispute. He stated that in this case, there was no question of ambiguity that arose as to the plaintiff’s role. He relied on the Black’s Law Dictionary, 8th Edition, for the definition of the term “contract”, and the Court of Appeal’s decision in the case of Ali Abid Mohammed v Kenya Shell & Company Limited [2017] eKLR, where it was held that a contract between parties can exist where no words have been used but where it can be inferred from the conduct of the parties that a contract has been concluded. He also relied on the holding by the Supreme Court of the United Kingdom in the case of RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG (UK Production) [2010] UKSC14 [45].
10.  Mr. Gichamba submitted that the standards required for grant of an interlocutory or temporary injunction were set out in the case of Giella vs Cassman Brown & Co. Limited [1971] E.A. 358. He submitted that the Court of Appeal in the case of Mrao Limited -vs- First American Bank Limited & 2 others [2003] eKLR determined the test of what constitutes a prima facie case. He further submitted that the plaintiff has a prima facie and arguable case with a strong likelihood of success.  He stated that the very nature of the plaintiff’s prayers seeking to have the sums in question held by the interested party deposited in Court and/or held in a joint account by Counsel for the parties, is premised on the fact that the defendants have no known local ties and in the event that the plaintiff is successful in her claim, she will have no way of executing her judgment.
11.  The plaintiff’s Counsel referred to the case of International Air Transport Association & another v Akarim Agencies Company Limited & 2 others [2014] eKLR, where the Court stated the basis upon which a Mareva injunction would be granted and contended that owing to the defendants’ actions, there is a real danger that the defendants’ assets may be unavailable within the jurisdiction of the Court unless the Court preserves them, since the defendants are likely to interfere with their assets so as to frustrate the plaintiff’s efforts in recovering monies she is duly entitled to in the event her claim is successful.
12.  In submitting that the plaintiff’s claim is squarely on the fact that the proceeds from the Arbitral Award are the only known assets that the defendants hold within the Court’s jurisdiction, Mr. Gichamba relied on the decisions in Rafique Ebrahim v William Ochanda T/A Ochanda & Advocates [2013] eKLR and Central Bank of Kenya v Giro Commercial Bank Limited & another [2007] 2 EA 93. He stated that the interested party continues to pay the defendants their dues and it is the plaintiff’s fear that in the event that the instant application is not allowed, not only will she be prejudiced, but if successful, any attempts to recover any sums will be frustrated by the defendants, who have not demonstrated what prejudice they will suffer in the event the application is allowed.
13.  Mr. Lipwop, learned Counsel for the defendants submitted that after the interested party terminated its contract with the 1st defendant, the latter declared a dispute for arbitration and appointed Mr. Pradeep Gopal as its authorized representative in the dispute, whose role was to identify suitable Legal Counsel in Kenya to represent the 1st defendant in the arbitration, collating evidence to be adduced during the arbitration proceedings, testifying on behalf of the 1st defendant and generally acting as the 1st defendant’s liaison regarding the dispute. He further submitted that the 1st defendant was successful in the arbitration proceedings and an award dated 29th July, 2016 was issued in its favour, which was subsequently confirmed by the High Court then set aside by the Court of Appeal on application by the interested party and finally reinstated by the Supreme Court on application by the 1st defendant.
14.  Counsel for the defendants contended that on adoption of the Arbitral Award as a judgment by the High Court, the plaintiff filed a suit being HCCC No. 415 of 2016 - Priscilla Nyambura Njue v Geo Chem Middle East seeking 12.5% commission of the total sum awarded to the 1st defendant in the arbitration but on 9th December, 2019, she opted to withdraw the said suit on her own volition. It was stated by Counsel that after the Supreme Court delivered its decision, the plaintiff filed an application on 20th January, 2021 to revive the withdrawn suit and that the application was opposed through the 1st defendant’s Preliminary Objection dated 12th February, 2021. Counsel stated that subsequently, vide a ruling dated 4th May, 2021 the High Court upheld the said Preliminary Objection with costs.
15.  Mr. Lipwop referred to the case of Garvey v Richards [2011] JMCA Civ 16 and submitted that a contract is not binding unless it satisfies all the essential elements of a contract. He stated that there was no contract between the plaintiff and the 1st defendant for payment of any commission as alleged and that Mr. Pradeep Gopal in undertaking his role as the 1st defendant’s authorized representative, travelled to Kenya together with Mr. Shantilal Govindan the 1st defendant’s in-house Counsel, held several meetings with a number of local Counsel, and prepared a report of their findings, which they presented to the 1st defendant’s board of management sometime in September, 2014. He stated that the Board unanimously resolved to appoint Mr. Ngatia SC to act for the 1st defendant.
16.  Counsel for the defendants contended that the plaintiff did not provide any evidence from the defendants authorizing her to undertake the identification of Legal Counsel as alleged, and/or an agreement for payment of the commission claimed in this suit. Further, neither the 2nd defendant nor the plaintiff played any part in the arbitration proceedings, as Mr. Gopal occasionally authorized Mr. Ngatia SC to communicate to him through the 2nd defendant and/or other senior managers when he was out of office for ease of internal coordination. In submitting that there was clearly no intention by the 1st defendant to enter into any contractual relationship with the plaintiff, Mr. Lipwop relied on the case of Rose & Frank Co. v J.R Crompton & Bros Ltd [1923] 2KB 293 quoted in the case of Rhoda Kibunja t/a Docuquest Enterprises v Next Technologies Limited [2020] eKLR.
17.  He asserted that there was no dispute between the 1st defendant and the interested party in May 2013 as alleged by the plaintiff since the dispute between the 1st defendant and the interested party commenced in July 2013 following termination of the contract between the 1st defendant and the interested party vide a letter dated 15th July, 2013. He contended that the communication between the 2nd defendant and the plaintiff regarding the arbitration proceedings was in a personal/friendship capacity and there was no discussion regarding any commission due to the plaintiff as is evident from the emails between them.
18.  Mr. Lipwop cited the Court of Appeal decision in the case of William Muthee Muthami v Bank of Baroda [2014] eKLR and stated that the plaintiff had neither adduced any evidence to the effect that she rendered any service to the 1st defendant in respect of which a commission would be payable nor had she demonstrated any expertise in legal matters and/or qualification to advise the 1st defendant on such matters. He argued that for the said reason, the plaintiff has no claim against the defendants.
19.  He also relied on the case of Kay Kay Mkulima Stores Ltd v World Vision & 10 others [2014] eKLR and stated that the plaintiff was not privy to the contract between the 1st defendant and the 1st interested party thus she has no interest in the sum awarded in the Arbitral Award. He explained that under the doctrine of privity of contract, a contract cannot confer any rights or impose obligations on persons who are not a party to it, and as such, the plaintiff has no interest to protect and is undeserving of any of the orders sought in the instant application.
20.  Mr. Lipwop cited the provisions of Order 40 Rule 1 of the Civil Procedure Rules, 2010 and the case of Giella v Cassman Brown & Co. Ltd (supra), where the Court set down the principles for granting an injunction. He also cited the case of Mrao Limited v First American Bank (supra) where the Court of Appeal determined what constitutes a prima facie case. He stated that the plaintiff does not have a prima facie case to warrant being granted an injunctive order. He referred to the Court of Appeal decision in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR where it was held that if a prima facie case is not established, then irreparable injury and balance of convenience need not be considered.
21.  On the issue of irreparable loss, Counsel for the defendants relied on the Court of Appeal holding in the case of Nguruman Limited v Jan Bonde Nielsen & 2 others (supra) and the case of Amos Kabogo Kuria v Stephen K. Kangethe t/a Dalali Auctioneers & another [2020] eKLR and stated that the plaintiff does not stand to suffer irreparable loss in the event that the Court declines to issue injunctive orders, since the arbitration dispute was between the 1st defendant and the interested party. He also stated that the decree in the High Court is in favour of the 1st defendant and there was no contract between the 1st defendant and the plaintiff in relation to the Arbitral Award.
22.  Mr. Lipwop referred to the case of Pius Kipchirchir Kogo v Frank Kimeli Tena [2018] eKLR and contended that if an injunction was to be granted, the defendants stand to suffer a greater inconvenience than the plaintiff since the 1st defendant shall be kept away from enjoying the fruits of his judgment, thus the balance of convenience tilts in favour of the defendants.
23.  He relied on the provisions of Order 39 Rule 5 of the Civil Procedure Rules, 2010 and stated that in the case of Kanduyi Holdings v Balm Kenya Foundation & another [2013] eKLR, the Court defined the scope of Order 39 Rule 5. He also relied on the case of International Air Transport Association & another v Akarim Agencies Company Limited & 2 others (supra) where the Court set out the threshold for granting an order of attachment before judgment and submitted that the plaintiff has not laid a proper basis as to why the sum of US$ 1,925,188.09 due to the defendants should be attached before judgment. He contended that there is also no mischief on the part of the defendants that they will remove the sum of money from this Court’s jurisdiction since the said money is not in their possession.
24.  Mr. Lipwop cited the case of Fred Black Insurance Brokers Limited v Jetways Airlines Limited [2021] eKLR and asserted that the plaintiff has not provided cogent proof that there is risk that the defendants shall remove the property from the jurisdiction if this Court. He expressed the view that the plaintiff is only apprehensive that the sum owed to the defendants by the interested party is the only available asset belonging to the defendants but apprehension is not enough reason to grant an order for attachment before judgment. In submitting that attachment before judgment is a remedy in personam, hence it cannot be issued against the defendants because the sum of US$ 1,925,188.09 is not in their possession but that of the 1st interested party.  Mr. Lipwop relied on the decision of the Court of Appeal in the case of Kanyoko t/a Amigos Bar & Restaurant v Ndera & 2 others [1988] eKLR.
25.  He cited the provisions of Order 26 Rule 1 of the Civil Procedure Rules, 2010 and the case of Raw Bank PLC v Yusuf Shaa Mohamed Omar & another [2020] eKLR and submitted that an order for security for costs is discretionary in nature, and it is only the defendants who are entitled to seek security for costs under this rule. Mr. Lipwop further referred to the Court of Appeal’s holding in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR and submitted that an order for security for costs is only granted in instances where the applicant has satisfied the Court that the respondent will be unable to pay costs in the event the applicant obtains a favourable decree. He further submitted that the plaintiff has not established any grounds for the application for security for costs. He stated that the 1st defendant is not a foreign entity with unknown assets.


ANALYSIS AND DETERMINATION.
26.  I have considered the instant application, the grounds on the face of it and the affidavits filed in support thereof. I have also gone through the replying affidavits by the defendants and the interested party as well as the written submissions by Counsel for the parties. The following issues arise for determination –
(i) Whether an order for temporary injunction should issue against the interested party; and
(ii)  Whether the defendants fit into the threshold of Order 39 Rule 5 of the Civil Procedure Rules, 2010.
27.  In the affidavit filed by the plaintiff she deposed that on or about May 2013, she was engaged and appointed by the defendants as their local agent to facilitate a contract dispute between the defendants and the interested party. That her role included seeking and recommending the defendants’ Legal Counsel, collecting evidence on their behalf, and advising the defendants on the impending arbitration claim against the interested party. She averred that in the exercise of her contractual responsibilities, she identified and recommended the appointment of M/S Ngatia & Associates Advocates to conduct the arbitration proceedings on behalf of the 1st defendant.
28.  It was stated by the plaintiff that on determination of the arbitration cause between the 1st defendant and the interested party, she sought payment of her duly earned commission from the 1st defendant on account of services rendered and additional tasks and duties that were demanded of her outside the initial engagements. She further stated that she raised a fee note that stated that her commission of 12.5% would be payable from the arbitral award and no objection was raised by the defendants, but they indicated inter alia that their finances were hard hit and there were stringent restrictions on transactions placed by the Dubai Government, thus they were unable to transact.
29.  The plaintiff contended that in September 2016, the defendants denied any knowledge of her claims which prompted her to file a suit against the 1st defendant herein, being HCCC No. 415 of 2016, vide a plaint dated 11th October, 2016 seeking inter alia payment of US$ 1,925,188.09 plus applicable interest of 14.5% but the said suit was later withdrawn by her former Counsel without her authority and/or knowledge. She deposed that the defendants have since closed their East African Offices that were situate in Nairobi, Kenya and have relocated to their country of origin being the United Arab Emirates, Dubai.
30.  The plaintiff’s case is that her claim is anchored on the arbitral award hence in the event her claim against the defendants is successful, she will be frustrated on account of their relocation to the United Arab Emirates. She asserted that the stated fee percentage has never been opposed or countered, and it was agreed that the stated sum would be paid from the total award owed by the interested party.
31.  The plaintiff averred that the defendants have garnisheed the interested party’s accounts with the sole intent of securing the arbitral award, and that the same shall be transmitted directly to the defendants account and thereafter expatriated to their mother country away from the reach of the plaintiff and this Court’s jurisdiction, thereby depriving the plaintiff of the opportunity to satisfy any consequential decree that this Court may issue. She further averred that there has been a clear and deliberate scheme by the defendants through their conduct to disenfranchise the plaintiff by removing the subject funds from this Court’s jurisdiction with the sole aim to frustrate the plaintiff.
32.  She emphasized that the sum owed to the defendants by the interested party is the only readily available disposable asset in this Court’s jurisdiction capable of sufficiently discharging any eventual decree that may be issued against the defendants in this suit.
33.  The 1st defendant in its replying affidavit deposed that he is a stranger to the entity known as Geo Chem Middle East Ltd, as the company which entered into a contract with the interested party is known as Geo Chem Middle East. He averred that he has never met the plaintiff and neither had he ever appointed her as Geo Chem’s local agent nor authorized her appointment. He indicated that he was shocked when the plaintiff filed HCCC No. 415 of 2016 Priscilla Nyambura Njue v Geo Chem Middle East claiming 12.5% commission of the total sum awarded to Geo Chem in the arbitration which suit was subsequently withdrawn by the plaintiff on her own volition.
34.  The 2nd defendant in his replying affidavit deposed that the plaintiff was a personal friend whom he had known for a period of time and they would accord each other personal favours when and if need arose. He stated that their friendship and the benefits accrued therefrom cannot be unilaterally metamorphosed into a professional agency and/or employer-employee relationship as claimed by the plaintiff. The 2nd defendant averred that he is also a stranger to an entity known as Geo Chem Middle East Ltd thus he could not be an agent of an entity which is unknown to him. He further averred that the company in respect of which the arbitration proceedings relate is Geo Chem Middle East. In addition, he averred that Mr. Pradeep Gopal, the Executive Director of Geo Chem Middle East has never met with the plaintiff.
35.  It was stated by the 2nd defendant that he never participated in the exercise of identifying a suitable Legal Counsel in Kenya to act for the 1st defendant and it was only towards the end of September 2014 that he was asked by Mr. Gopal to brief Mr. Fredrick Ngatia SC on the dispute between the 1st defendant and the interested party. The 2nd defendant further stated that in his summary email dated 1st October, 2014, he recognized what an invaluable personal contact and friend the plaintiff had been to him.
36.  The 2nd defendant asserted that the plaintiff after gathering from his conversations with her that Geo Chem Middle East was pursuing a huge financial claim against the interested party, vide an email dated 10th October, 2015, she begun to insinuate that they ought to discuss a commission payable to her. He contended that it was inconceivable that the plaintiff had been engaged and appointed without any discussion or agreement on payment, as the 1st defendant’s local agent as alleged in paragraph 3 of her affidavit in support of the instant application.
37.  He averred that he ignored the plaintiff’s emails on the ground that his relationship with her was of a personal nature in respect to which no commission, agency fees and/or salary could be claimed and in any event, he had no authority to enter into and/or negotiate such arrangements on behalf of Geo Chem Middle East.
38.  The 2nd defendant contended that the plaintiff offered to discuss the case between the 1st defendant and the interested party with Senior Counsel due to her knowledge of a few facts and status of the dispute from their private correspondence but the said attempts were strongly rebuffed by Mr. Fredrick Ngatia SC in an email dated 23rd November, 2015. The 2nd defendant contended that vide an email dated 12th February, 2016, the plaintiff expressed her distress in her inability to pay her daughter’s school fees and requested for his assistance. That through an email dated 15th February, 2016, he explained of his inability to assist her at the time in relation to his personal circumstances given that his income is derived from salary, allowances and bonuses drawn from his employer, Geo Chem Middle East, thus its cash flow problems had a direct deleterious effect on him.
39.  The interested party in its replying affidavit deposed that it is trite that the doctrine of privity of contract postulates that a contract cannot confer rights or impose obligations on any person other than the parties to the contract. It stated that a contract cannot be enforced either by or against a third party such as the plaintiff herein. It deposed that there are some exceptions to the doctrine of privity of contract such as where a contract between two parties is accompanied by a collateral contract between one of them and a third party relating to the same subject matter.
40.  It averred that the instant application is anchored on an alleged commission/agency agreement which was allegedly entered into by the applicant and the 1st respondent. The interested party denied being a party to the impugned commission/agency agreement between the plaintiff and the defendants and stated that it has never been privy to such a contract. It stated that it had been roped in the instant application to confuse issues.
41.  It further averred that no Court can re-write a contract for parties where the intention is clear and since the interested party had nothing to yield to the plaintiff, any consequential adverse orders would expose and unfairly prejudice it. The interested party deposed that it is entitled to costs of the application herein.
42.  In a rejoinder, the plaintiff deposed that the defendants had not denied or refuted that she had been contracted by them to undertake their affairs in Kenya on account of their dealings with the interested party. She averred that the decision to withdraw HCCC No. 415 of 2016 was informed by the Court of Appeal’s decision in Civil Appeal No. 259 of 2018 to set aside the decision of Ochieng J in HCCC No. 455 of 2016 in favour of the interested party, as the plaintiff’s claim was hinged upon the successful claim by the 1st defendant to recover sums owed to it by the interested party.
43.  She deposed that long after she had withdrawn her suit, the 1st defendant appealed against the decision of the Court of Appeal at the Supreme Court and the latter ruled in its favour. It was stated by the plaintiff that upon learning of the Supreme Court’s decision, she sought to have her suit reinstated but her application for reinstating the said suit was dismissed leaving her with only one option, which was to file a fresh suit, since her initial suit had not been heard on merit.
44.  The plaintiff averred that it would be impossible for her to have been acquainted with the details of the defendants claim as the same was not in the public domain and it was not one that an ordinary Joe would stumble upon in their day to day activities. She stated that her involvement was occasioned directly by the defendants and she was only edged out when it became apparent that she was seeking to be compensated for the services rendered.
45.  She further averred that the defendants did not make a commitment to pay an exaggerated 12.5% commission from the initial sum of 9% but they are silent on whether there was indeed a commitment to pay any amount.
Whether an order for temporary injunction should issue against the interested party.
46.  The orders being sought in the instant application are in the nature of a mareva injunction and/or a freezing or asset protection order. For this reason, I am guided by the decision in the case of Mareva Compania Naviera SA vs International Bulk Carriers SA [1975] 2 Lloyd dis Rep 509, where Lord Denning MR made the following observation-
“In my opinion that principle applies to a creditor who has a right to be paid the debt owing to him, even before he has established his right by getting judgment for it. If it appears that the debt is due and owing and there is a danger that the debtor may dispose of his assets so as to defeat it before judgment, the court has jurisdiction in a proper case to grant an interlocutory judgment so as to prevent him from disposing of those assets.”
47.  Injunctions such as the one being sought herein are provided for under Order 40 Rule 1(b) of the Civil Procedure Rules, 2010 which states as hereunder: -
“Where in any suit it is proved by affidavit or otherwise—
a) …; or
b) that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,
the court may by order grant a temporary injunction to restrain such       act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.”
48.  It is trite that an injunction is a discretionary remedy hence it is granted on the basis of evidence and sound legal principles. The Court in the case of Giella vs Cassman Brown and Co. Ltd (supra) laid down the principles to be considered when dealing with an application for temporary injunction as hereunder -
“The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”
49.  On the issue of whether the plaintiff has established a prima facie case with a probability of success, I am bound by the Court of Appeal finding in the case of Mrao Ltd v. First American Bank of Kenya Ltd & 2 Others (supra), where what constitutes a prima facie case was defined in the following words–
“So, what is a prima facie case" I would say that in civil cases 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 as 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.”
50.  In the instant application, the plaintiff’s contention is that on or about May 2013, she was engaged and appointed by the defendants as their local agent to facilitate a contract dispute between the defendants and the interested party. Her role included seeking and recommending the defendants’ Legal Counsel, collecting evidence on their behalf and advising the defendants on the impending arbitration claim against the interested party. She averred that in the exercise of her contractual responsibilities, she identified and recommended the appointment of M/S Ngatia & Associates Advocates to conduct the arbitration proceedings on behalf of the 1st defendant.
51.  The plaintiff’s contention is that after determination of the arbitration cause between the 1st defendant and the interested party, she sought to be compensated by an award of 9% commission. She thereafter raised a fee note enhancing her commission to 12.5% to be paid from the arbitral award. She claims that the defendants did not raise any objection to the said fee note but they indicated inter alia that their finances were hard hit and there were stringent restrictions on transactions placed by the Dubai Government hence they were unable to transact. Based on the foregoing, the plaintiff asserted that there was a binding agreement between her and the defendants wherein her role was codified to that of an agent.
52.  The defendants on the other hand maintained that the plaintiff was never engaged and/or appointed by the 1st defendant as their local agent to facilitate a contract dispute between the defendants and the interested party. They contended that the contract between the 1st defendant and the interested party was terminated vide a letter dated 15th July, 2013, therefore there was no dispute between the 1st defendant and the interested party before 15th July, 2013. The defendants averred that the functions that were purportedly carried out by the plaintiff were carried out by Mr. Pradeep Gopal, the Executive Director of the 1st defendant company together with Mr. Shantilal Govindan, the 1st defendant’s in-house Counsel. The 1st defendant asserted that neither the 2nd defendant nor the plaintiff played a part in the arbitration proceedings save for the occasional communication by their Counsel to the 2nd defendant and/or other senior managers when he was out of office.
53.  According to the 2nd defendant, in his summary email dated 1st October, 2014, he recognized what an invaluable personal contact and friend the plaintiff had been to him. He expressed the position that it was inconceivable that the plaintiff had been engaged and appointed as the 1st defendant’s local agent without any discussion or agreement on payment. He indicated that he ignored the plaintiff’s emails on the ground that his relationship with her was of a personal nature in respect to which no commission, agency fees and/or salary could be claimed.
54.  From the evidence presented before this Court, it is evident that there was communication between the 2nd defendant and the plaintiff, where the plaintiff was involved in negotiations between the defendants and their Counsel Mr. Fred Ngatia SC and instructions to the plaintiff from the 2nd defendant to collect correspondence between KRA and the interested party. In addition, the 2nd defendant in his email dated 1st October, 2014 to Mr. Fred Ngatia SC acknowledged the plaintiff’s efforts in guiding them through the right way forward. Based on the foregoing, it is apparent that there exists a dispute on whether or not the plaintiff entered into a contractual relationship with the 1st defendant to facilitate a contract dispute between the 1st defendant and the interested party as the 1st defendant’s local agent, and whether as a result of the alleged contractual relationship, it was agreed that the plaintiff was entitled to 12.5% of the arbitral award on account of services rendered to the defendants.
55.  It is not disputed that the defendants have since closed their East African offices that were situate in Nairobi, Kenya and have relocated to their country of origin, the United Arab Emirates, Dubai. The plaintiff stated that she is apprehensive that the sum owed to the defendants by the interested party is the only readily available disposable asset in this Court’s jurisdiction that is capable of sufficiently discharging any eventual decree made in the plaintiff’s favour. In addition, she does not know of any other readily disposable assets owned by the defendants. She further stated that the defendants have garnisheed the interested parties accounts with the sole intent of securing the arbitral award thus the monies owed to them by the interested party would be transmitted directly to their account and thereafter expatriated to their mother country away from the reach of this Court’s jurisdiction. In light of the above, this Court finds that the plaintiff has established a prima facie case against the defendants.
56.  It is my finding that the plaintiff stands to suffer irreparable loss and damage that cannot be adequately compensated by an award of damages if the orders sought herein are not granted. This is because, it is not disputed that the defendants have since closed their East African Offices that were situate in Nairobi, Kenya and have relocated to the United Arab Emirates, Dubai. The plaintiff averred that the sum owed to the defendants by the interested party is the only readily available disposable asset in this Court’s jurisdiction that is capable of sufficiently discharging any eventual decree made in her favour and if the instant application is not allowed, there is a real risk that by the time the suit herein is concluded and judgment entered is in her favour, she shall not be able to execute it.
57.  On the issue of balance of convenience, I find that it tilts in favour of the plaintiff as she is likely to suffer immense financial loss if the defendants’ assets are not frozen and/or safeguarded by this Court.
Whether the defendants fit into the threshold of Order 39 Rule 5 of the Civil Procedure Rules, 2010.
58.  Order 39 Rule 5 of the Civil Procedure Rules, 2010 states that -
“(1) Where at any stage of a suit the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him—
a) is about to dispose of the whole or any part of his property;
b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court,
the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
(2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof.
(3) The court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.”
59.  In the case of Kanduyi Holdings Limited v Balm Kenya Foundation & another [2013] eKLR, the Court had an opportunity to consider the scope of Order 39 of the Civil Procedure Rules, 2010 and held as hereunder: -
“Accordingly, Order 39 Rules 5 and 6 of the CPR should operate within known dimensions of law drawing from the above case [Mareva Compania Navierra SA v International Bulkcarriers SA [1975] 2 Lloyd dis Rep 509] and other judicial precedents on the subject. Order 39 rule 5 and 6 of the CPR is not to be used to: 1) pressure a defendant; or 2) as a type of asset stripping (forfeiture); or 3) as a conferment of some proprietary rights on the plaintiff upon the assets of the Defendant. The purposes of any order that should be issued under Order 39 Rules 5 and 6 of the CPR is to prevent the Defendants or would be judgment-debtor from dissipating his assets as to have the effect of obstructing or delaying the execution of any decree that may be passed against him’’ (emphasis added).
60.  The principles to be satisfied before a Court can grant a mareva injunction were laid down by the Court in the case of Beta Healthcare International Limited v Grace Mumbi Githaiga & 2 others [2016] eKLR, as hereunder: -
a) “The claimant has ‘a good arguable case’ based on a pre-existing cause of action;
b) The claim is one over which the court has jurisdiction;
c) The defendant appears to have assets within the jurisdiction;
d) There is a real risk that those assets will be removed from the jurisdiction or otherwise dissipated if the injunction is not granted; and
e) There is a balance of convenience in favour of granting the injunction;
f) The Court can also order disclosure of documents or the administration of requests for further information to assist the claimant in ascertaining the location of the defendant’s assets” (emphasis added).
61.  This Court has already found that the plaintiff has a prima facie case with probability of success, the jurisdiction of this Court is not disputed as the cause of action arose in Nairobi. It is not in dispute that the defendants have since closed their East African offices that were situate in Nairobi, Kenya and have relocated to the United Arab Emirates, Dubai and they have garnisheed the interested party’s accounts with the sole intent of securing the arbitral award, thus the monies owed to them by the interested party which is their only known asset, would be transmitted directly to their account and thereafter expatriated to their mother country away from the reach of this Court’s jurisdiction.
62.  Additionally, the defendants have no other known business in Kenya and no other known investments or attachable assets within the Court’s jurisdiction that could be used to settle the decree the Court may issue in the event judgment in the suit in issue is entered in favour of the plaintiff. If the application herein is not allowed, there is a very high possibility that on conclusion of the dispute between the parties herein, if judgment is entered in favour of the plaintiff, it shall be reduced to a paper judgment since the plaintiff shall not be able to realize her fruits.
63.  Order 40 Rule 11 provides as follows-
“Where the subject-matter of a suit is money or some other thing capable of delivery, and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the court may order the same to be deposited in court or delivered to such last named party, with or without security, subject to the further direction of the court.”
64.  It is not disputed that the interested party is indebted to the defendants pursuant to an arbitral award which has since been confirmed as a judgment of the Court and the plaintiff’s suit is also anchored on the arbitral award which was issued in favour of the 1st defendant. Therefore, pursuant to the provisions of Order 40 Rule 11 reproduced herein above, this Court has the power to make such orders as it deems necessary in respect of the monies held by the interested party.
65.  The upshot is that the application dated 24th May, 2021 is merited and it is allowed in the following terms -
i) That this Court hereby issues an order directing the interested party to deposit in a joint interest earning account in the names of Advocates for the parties herein, the sum of United States Dollars One Million Nine Hundred and Twenty-Five Thousand, One Hundred and Eighty-Eight and Nine Cents (USD 1,925,188.09) pending the hearing and determination of this suit within sixty (60) days from the date of this ruling;
ii) Costs shall abide the outcome of the suit.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 7th day of July, 2023. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Ms Obure h/b for Mr. Kanjama SC for the plaintiff/applicant
  Ms Agwata h/b for Mrs. Maina for the 1st and 2nd defendants
  No appearance for the interested party
  Ms B. Wokabi – Court Assistant.