RULING
1. This matter has been originated to seek orders of inunction under order 40 Rule 1. this only deals with interlocutory application. it presupposes existence of a suit. The idea of having only the notice of motion without a suit, is an innovation without meaning. the test for grant of injunction is given in Giella = vs = Cassman Brown & Co. Ltd (1973) EA, 358, 360 the court must be satisfied in the words or of Spry VP as follows: -“The conditions for the grant of an interlocutory injunction are now, I think, well settled in east Africa.
a. First, an applicant must show a prima facie case with a probability of success.
b. 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.
c. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”
2. In the case of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR the Court of Appeal was of the view that these tests are sequential. The Court stated: -
“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 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.
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. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable.
In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.”
3. I cannot find a prima facie case without a Plaintiff.
4. The procedure for commencing a suit is a plaint. The exceptions are where the la gives a different and specific procedure. A claim for injunction cannot be originated though a miscellaneous application.
5. Order 3, rule 1 provides as doth: -
“Commencement of suit and case track allocation
Every suit shall be instituted by presenting a plaint to the Court, or in such other manner as may be prescribed.
(2) The claim shall indicate at the heading the choice of track; namely “small claims”, “fast track” or “multi-track”. Order 3, rule 1.] (1)
6. The consequences and ramification for filing a miscellaneous application without a plaint is that there is not suit. It is a nullity.
7. In the case of Omega Enterprises (Kenya) Limited v Kenya Tourist Development Corporation Limited & 2 others [1998] eKLR, the coutrt of appeal, GICHERU, TUNOI & PALL, JJ.A had this to say, in a scenario where we have a nullity
Mr. Gautama again averred that no one, especially third parties, can be guilty of disobeying an order which is null and void. With this submission I agree. There cannot be as far as third parties are concerned interference with due administration of justice when the ex-parte order made is without any legal basis and is of no legal effect, and; as regards the parties to this suit, it cannot be said that there was disobedience of an order which was in the first place null and void.
In Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169 Lord Denning delivering the opinion of the Privy Council at page 1172 (1) said;
“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
In Civil Application No. Nai. 56 of 1994 – Campbell v. Canadian Hunger Foundation, which application concerned granting a stay of execution pending the hearing of an appeal, this court said:
“Mr. Rebelo further drew our attention of the lack of endorsement of the notice of penal consequence on the order and submitted that it will be contended on behalf of the applicants that the orders granted by the Shields, J. were made on an application that was a nullity in Law. Indeed, if there was non-compliance with this elementary but, mandatory procedural rule the entire contempt proceedings would be a nullity.”
It follows, therefore, in my judgment that all the proceedings before the learned Judge which were based upon the null and void order having been allegedly disobeyed are a complete nullity since with such a faulty foundation the entire house of cards must collapse without much ado.
8. Consequent upon the foregoing, the proceedings commenced by miscellaneous application, seeking for injunction and have no plaint or other originating process are null.
9. I therefore save the application from the ignominy of its own incompetence.
10. I strike out the entire application and order the file closed.
DELIVERED, DATED and SIGNED at MOMBASA on this 24th day of June 2023 via the efiling portal.