RAMADHAN ALI AND RAMADHAN MULAMA AND 1 Others VS SHEIKH MUSA A. SHEBELLA AND SHEIKH YAHYA JUMA AND 3 Others

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL SUIT NO 3 OF 2022

RAMADHAN ALI (suing on behalf of Bungoma Muslim Association)…………..1^ST PLAINTIFF

RAMADHAN MULAMA (suing on behalf of Bungoma Muslim Association)…..2^ND PLAINTIFF

MACHARIA MBULE JUMA(suing on behalf of Bungoma Muslim Association).3^RD PLAINTIFF

VERSUS

SHEIKH MUSA A. SHEBELA………….…………….……………..…….1^ST DEFENDANT

SHEIKH YAHYA JUMA…………………………………………………...2^ND DEFENDANT

SHEIKH OMAR RAMADHAN……………………………………….…..3^RD DEFENDANT

SHEIKH SHUAYB HASSAN…………………………………..…………..4^TH DEFENDANT

SHEIKH KASIM RATORI……………………………………………….5^TH RESPONDENT

RULING

1. In the Notice of Motion dated 27^th January 2023, the applicants seek the following reliefs:
2. SPENT
3. That this Honourable Court be pleased to issue temporary orders of injunction pending the hearing and determination of the main suit.
4. That costs of this application be provided for.
5. The grounds on the face of the application and the supporting affidavit of Machiri Juma Mbule are that the defendants hold a position within the Bungoma Muslim Association as the Maljis Committee. They had on 7^th January 2023 called for an illegal election in violation of article 4.3 (ii) of the Bungoma Muslim Association Constitution which requires a national electoral body to oversee the elections. The 1^st defendant endorsed candidates in the vetting report while he was aware that a suit had been filed against them. On 21^st January 2023 there was a handing-over meeting in an attempt to force out the current members of the management committee and have the endorsed candidates take up various leadership positions. On 23^rd January 2023, they locked out part of the management committee inside the Bungoma Muslim Association Offices threatening to kill them. The members of the management committee had to call the police to help them to safety.
6. The defendants filed a replying affidavit which was sworn by Sheikh Musa Abdalla Shebela. He deposed that the application by the plaintiffs was frivolous, vexatious, unmerited and an abuse of legal process. They contend that the application and the entire suit are improperly before the court as it has been filed by strangers as the Bungoma Muslim Association requires all legal proceedings to be taken by the secretary. The applicants lack locus standi. The association currently have officials in place. They argue that they are mandated to advise the association on matters of Islamic religion and they did so during the meeting of 24/12/2024 by giving directions to the members. The defendants also filed a further affidavit dated 15^th December 2023.
7. The applicants filed submissions dated 15^th December 2023 and identified two the issues to be determined by the court: whether the applicants have locus standi to institute the present suit; and whether the applicant has satisfied the threshold to warrant the grant of the injunctive order. The respondents filed their rival submissions on 24^th November 2023.

DETERMINATION

1. At the onset, I note that the prayer sought in the applicant’s notice of motion is worded as follows:

2. That this Honourable Court be pleased to issue temporary orders of injunction pending the hearing and determination of the main suit.

1. In essence the application does not seek a substantive prayer. I also note that the applicants in their amended plaint, prayer (a) read as follows:

“That pending the hearing and determination of this suit the Defendants herein and their agents be stopped and or restrained from interfering with the dealing with the business of the association”

1. If the applicants had worded their prayer as in the amended plaint, I would have considered their application as it would have had a substantive prayer. I therefore find no reason to consider the merits of the application given that no substantive prayer was sought.
2. Consequently, the Notice of Motion dated 27^th January 2023 is struck out. No orders as to costs. 

Dated, Signed and Delivered at BUNGOMA this 3^rd day of April 2024.

R.E. OUGO

JUDGE

In the presence of:

Miss Masengeli    -For the Applicants

Mr. Paul Juma    - For the Respondents

Wilkister   -C/A