'1. The plaintiff/applicant has filed the present notice of motion application dated 3rd June 2025 seeking an order of temporary injunction to issue against the 5th defendant from approving the 2025/2026 budget estimates for the County Government of Kwale until this matter is heard and determined, and that the costs of the application be provided for.
2. The application is brought under sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act (Cap. 21) Laws of Kenya, Order 40 Rules 1(1)(a) & 2(l) and Order 51 Rule 1 of the Civil Procedure Rules and all other relevant provisions of the law.
3. The grounds in support of the application are set out on the face thereof and supported by the affidavit of Vincent Endekwa Mahasi, who describes himself as an agent of the applicant and sworn on 3rd June 2025.
4. In summary, the grounds are that the 1st defendant/respondent, through its officers, the 2nd, 3rd, and 4th defendants/respondents, has, in breach of its contracts with the applicant, failed to settle a total sum of KShs 24,252,693.29 owed to the applicant on account of contractual works done and services rendered to the 1st respondent for the years 2021 to 2024, despite the applicant executing and completing the contracts on its part, completion certificates and delivery notes being issued and the applicant sending invoices for settlement. The applicant’s demand letters for payment have been acknowledged but not been replied to.
5. The applicant avers further that in the preceding years, the 1st to 5th respondents have been budgeting for the outstanding sums of money but end up not paying. The applicant deposes that it obtained a loan of KShs 10,000,000/= to perform the contracts, which loan has matured and is attracting interest and is now negatively affecting the business relationship of the applicant and the banks.
6. The applicant deposes that the 1st respondent has made partial disbursements of the amounts owing, which is proof of the existence of the subject contracts.
7. The applicant has annexed to its supporting affidavit copies of the various documents in support of its application. The documents are; a resolution of Renah (K) Ltd board of directors to appoint Mr. Vincent Endekwa Mahasi to act as its agent in legal matters related to the company, a list of pending bills dated 1st April 2023 from the applicant to the 3rd respondent showing the total sum owing as KShs 24,252,693.29, demand letter by the applicant to the 2nd respondent dated 25th April 2025 and a subsequent reminder dated 14th May 2025.
8. The respondents opposed the application on the grounds of opposition filed on 24th June 2024 by the County Attorney as follows:
a. The application is a non-starter; bad in law, and the orders sought having been overtaken by events.
b. The application is incurably defective.
c. The application lacks merit and an abuse of the court process and should therefore be dismissed with costs.
9. The applicant filed a response dated 21st July 2025 to the grounds of opposition in terms that:
a. The plaintiff is raising a genuine claim of breach of contract for non-payment of the contract sum amounting to Kenya shillings 24,252,693.29, which is long overdue.
b. The defendants are not justified to term the application as a non-starter, bad in law and that the orders sought have been overtaken by events.
c. There is no affidavit on record to justify the claims in the respondents’ grounds of opposition as required of the government in responding to a claim or petition against it.
d. Terming the application as incurably defective is a contradiction of Article 159 of the Constitution on administration of justice, which is being sought by the plaintiff.
e. That every person has a right io institute court proceedings against anyone in view of seeking justice as envisaged in article 159 of the Constitution.
f. The defendants are being evasive and running away from their constitutional mandate.
10. The court directed that the application be heard by way of written submissions. Only the applicant filed the submissions.
11. I have carefully considered the applicants’ application as well as the opposition thereto by the respondent. The parties were directed to file written submissions in respect of this application but only the applicant filed its submissions. The respondents were given more time within which to file their submissions but as at the time of writing this ruling, no submissions had been filed and if any were filed, they are not in the court file or on the CTS.
12. The issue for determination is whether or not the applicant has satisfied the conditions for the grant of an interlocutory injunction.
13. The applicant’s submissions are a reiteration of the response made to the respondents’ grounds of opposition. The submissions do not address the requirements to be met for a temporary injunction to issue.
14. The conditions to be satisfied by an applicant before the court can grant a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules are as stated in the words of Spry V.P in the celebrated case of Giella –vs- Cassman Brown Ltd (1973) EA 358 as follows: -
“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.”
15. The test for granting of an interlocutory injunction is further expounded in the English case of American Cyanamid Co. v Ethicon Limited (1975) 1 All ER 504 where the House of Lords set out the following guidelines namely:
i. Whether there was a sufficiently serious (substantial) matter to be tried.
ii. Whether damages were an adequate remedy for the claimant if an injunction was not granted.
iii. If damages would not be an adequate remedy, whether the claimant would be able to give an undertaking in damages to the defendant.
iv. If it was considered that there was any difficulty regarding the availability of damages on either side, the court should consider the balance of convenience between the parties.
v. If these factors were evenly balanced, the court should consider maintaining the status quo.
16. The first condition is whether the applicant has made out a prima facie case with a probability of success. In the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR, a prima facie case was described as follows:
“A prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case 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.”
17. The applicant herein has presented a case of breach of contract by the respondent. I have seen in his list of documents supporting the suit, copies of contracts entered between the applicant and the 1st defendant. I have seen a copies of documents supporting the following contracts:
a. contract agreement dated 16th July 2023 for proposed construction of Kwale Slaughtershouse Phase II Tsimba/Golini, together, Local Purchase Order, a certificate of practical completion, a final payment certificate and payment vouchers.
b. Award notification for supply and delivery of tractor batteries dated 15th November 2023 for KShs 598,500/=, acceptance of the same by the applicant, an LPO dated 22nd November 2023, delivery note and invoice.
c. Agreement for proposed cabro paving and street lighting from Waa-Mbweka road in Waa/Ng’ombeni ward” dated 7th November 2023, for KShs 18,014,698.85, acceptance of the sme by the applicant dated same date, requests for payment and interim payment certificate dated 15th May 2024.
d. Contract for extension of piped water from Kizingo Dam-Mwangaza-Ryakalui village in Mackinnon road ward for the sum of KShs 10,848,993.96; Notification of award dated 21st November 2023; LPO dated 23rd November 2023, certificate of practical completion dated 7th February 2024 and a payment voucher for KShs 10,332,375.20 dated 14th February 2024.
e. Agreement for proposed construction and completion of Longido ECDE in Ramisi ward dated 20thApril 2022 for a sum of KShs 5,856,306.40 and a payment voucher for KShs 5,631,266.40 dated 4th May 2023.
f. The bulk of the documents comprising of travel work sheet vocuhers, invoices and demands for payment are for taxi services.
18. I have also seen some documents for contracts but which are not for the applicant with the 1st respondent. For instance, the agreement dated 8th December 2020 for “hiring machinery and specialized equipment for sports leveling which is between the County Government of Kwale and Le Star Limited.”
19. These contracts between the applicant and the respondent have not been disputed and the applicant’s contention that some of them have not been settled has not been denied by the 1st to 4th respondents since none of them filed a replying affidavit.
20. I am aware that at this stage, the court is not required to make definitve findings of fact or law on the assertions made by the parties. See the case of Airland Tours and Travel Ltd v National Industrial Credit Bank Ltd Nairobi (Milimani) HCCC No. 1234 of 2002 where the Court held that:-
“In an interlocutory application, the Court is not required to make any conclusive or definitive findings of facts or law, most certainly not on the basis of contradictory affidavit evidence or disputed proposition of law.”
21. In addition to the case of Mrao above, in the case of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR and Mulla (The Code of Civil Procedure, 18th edn. Lexis Nexis (2011) p. 3320) there is further exposition on what entails a prima facie case. In the Nguruman case, it is further expounded that in determining whether a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely, except to see that the applicant has a right which has been or is threatened with violation.
22. In the circumstances, I am satisfied that on a balance of probability, the applicant has established a prima facie case, one that is genuine and arguable at the main hearing. The first condition for grant of a temporary injunction is therefore satisfied.
23. The second condition is whether the plaintiffs/applicant have demonstrated that they stand to suffer irreparable injury which would not be adequately compensated by an award of damages.
24. Irreparable injury has been defined in equity as, “the type of harm which no monetary compensation can cure or put conditions back the way they were”. In Alternative Media Limited vs. Safaricom Limited (2004) eKLR, the court held as follows:
“The second principle established by the Giella case for the grant of an interlocutory injunction is that the Plaintiff will suffer irreparable harm which would not be compensated in damages. Considering this very point in the case of Mureithi vs City Council of Nairobi (1979) LLR 12 Madan JA (as he then was) cited with approval the speech of Lord Diplock in the case of American Cynamid Co. vs Ethicon (1975) 1 ALL E.R. 504 at page 506 where he said:- the object of the interlocutory injunction is to protect the Plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial… if damages in the measure recoverable at common law would be adequate remedy and the Defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted however strong the Plaintiff’s claim appeared to be at that stage.”
25. In the present casethe suit is for breach of contract for failure to make payments for works done and services rendered running all the way from 2021 to 2024. The temporary injunction herein is sought in order to restrain the 5th respondent from approving the 2025/2026 Budget Estimates for the County Government of Kwale. It is the applicant’s contention that the proposed budget does not contain estimates for settlement of its claims against the 1st respondent.
26. Clearly, there is no dispute between the applicant and the 5th respondent save that the 5th respondent in approving the budget will be carrying out its constitutional and legislative mandate.
27. The sums claimed by the applicant are not very clear from the documents provided. All the same, the sums are computable and a final figure can be found.
28. Consequently, I find that the applicant has not shown that damages will not be an adequate compsation even if, as it states that, there have been past breaches of payment even when the sums claimed had been provided for in the county government’s budgets.
29. The final condition to determine is in whose favour the balance of convenience tilts. A temporary injunction serves the purpose of preserving and protecting the subject property in dispute as was held in the case of Exclusive Estates Ltd v Kenya Posts and Telecommunications Corporation and another, Civil Application No. Nairobi 62 of 2004 [2004] LLR 5917 (CAK) that:
“A temporary injunction is issued in a suit to preserve the property in dispute in the suit of the rights of parties under determination in a suit pending the disposal of the suit, to preserve the subject matter’’
30. In the present case, I find that the balance of convenience tilts in favour of not granting the temporary injunction given that the failure to approve the budget will lead to dire ramifications for the entire county. I do not think that it should concern the applicant that its claim must be provided for as such in the Budget Estimates. Secondly, if it were to succeed at the hearing, where the County Government gets the money to pay it should be the least of its concerns. Its work will be to execute against the County government against the sums found due.
31. Finally, I am inclined to find that stopping approval of the Budget Estimates will lead to greater hardship to the people of Kwale as compared to the applicant’s private right to enforce the contract. Failure to discuss and approve the budget will have the effect of paralyzing the operations of the County including getting the very funds that the applicant is seeking from the County government. It would not be in the public interest to issue orders whose effect would be to paralyze operations of the county government pending the hearing and determination of the main suit (see the cases of Masomo v County Government, Taita-Taveta & 2 others [2016] KECA 631 (KLR) and County Executive of Kisumu & 2 others v Kisumu County Assembly Service Board & 5 others [2015] KECA 667 (KLR).
32. Consequently, I find that the application does not meet the standard for grant of a temporary injunction. The same is not allowed.
33. The costs shall be in the cause.
34. Orders accordingly.
ANDAYI W. F.
JUDGE
Written, dated, signed, and delivered on the virtual platform, Teams this 2nd day of October 2025.
In the presence of:
In person for the Plaintiff/Applicant.
N/A for the Defendants/Respondents.
Court Assistant: Ummu
'
2. The application is brought under sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act (Cap. 21) Laws of Kenya, Order 40 Rules 1(1)(a) & 2(l) and Order 51 Rule 1 of the Civil Procedure Rules and all other relevant provisions of the law.
3. The grounds in support of the application are set out on the face thereof and supported by the affidavit of Vincent Endekwa Mahasi, who describes himself as an agent of the applicant and sworn on 3rd June 2025.
4. In summary, the grounds are that the 1st defendant/respondent, through its officers, the 2nd, 3rd, and 4th defendants/respondents, has, in breach of its contracts with the applicant, failed to settle a total sum of KShs 24,252,693.29 owed to the applicant on account of contractual works done and services rendered to the 1st respondent for the years 2021 to 2024, despite the applicant executing and completing the contracts on its part, completion certificates and delivery notes being issued and the applicant sending invoices for settlement. The applicant’s demand letters for payment have been acknowledged but not been replied to.
5. The applicant avers further that in the preceding years, the 1st to 5th respondents have been budgeting for the outstanding sums of money but end up not paying. The applicant deposes that it obtained a loan of KShs 10,000,000/= to perform the contracts, which loan has matured and is attracting interest and is now negatively affecting the business relationship of the applicant and the banks.
6. The applicant deposes that the 1st respondent has made partial disbursements of the amounts owing, which is proof of the existence of the subject contracts.
7. The applicant has annexed to its supporting affidavit copies of the various documents in support of its application. The documents are; a resolution of Renah (K) Ltd board of directors to appoint Mr. Vincent Endekwa Mahasi to act as its agent in legal matters related to the company, a list of pending bills dated 1st April 2023 from the applicant to the 3rd respondent showing the total sum owing as KShs 24,252,693.29, demand letter by the applicant to the 2nd respondent dated 25th April 2025 and a subsequent reminder dated 14th May 2025.
8. The respondents opposed the application on the grounds of opposition filed on 24th June 2024 by the County Attorney as follows:
a. The application is a non-starter; bad in law, and the orders sought having been overtaken by events.
b. The application is incurably defective.
c. The application lacks merit and an abuse of the court process and should therefore be dismissed with costs.
9. The applicant filed a response dated 21st July 2025 to the grounds of opposition in terms that:
a. The plaintiff is raising a genuine claim of breach of contract for non-payment of the contract sum amounting to Kenya shillings 24,252,693.29, which is long overdue.
b. The defendants are not justified to term the application as a non-starter, bad in law and that the orders sought have been overtaken by events.
c. There is no affidavit on record to justify the claims in the respondents’ grounds of opposition as required of the government in responding to a claim or petition against it.
d. Terming the application as incurably defective is a contradiction of Article 159 of the Constitution on administration of justice, which is being sought by the plaintiff.
e. That every person has a right io institute court proceedings against anyone in view of seeking justice as envisaged in article 159 of the Constitution.
f. The defendants are being evasive and running away from their constitutional mandate.
10. The court directed that the application be heard by way of written submissions. Only the applicant filed the submissions.
11. I have carefully considered the applicants’ application as well as the opposition thereto by the respondent. The parties were directed to file written submissions in respect of this application but only the applicant filed its submissions. The respondents were given more time within which to file their submissions but as at the time of writing this ruling, no submissions had been filed and if any were filed, they are not in the court file or on the CTS.
12. The issue for determination is whether or not the applicant has satisfied the conditions for the grant of an interlocutory injunction.
13. The applicant’s submissions are a reiteration of the response made to the respondents’ grounds of opposition. The submissions do not address the requirements to be met for a temporary injunction to issue.
14. The conditions to be satisfied by an applicant before the court can grant a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules are as stated in the words of Spry V.P in the celebrated case of Giella –vs- Cassman Brown Ltd (1973) EA 358 as follows: -
“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.”
15. The test for granting of an interlocutory injunction is further expounded in the English case of American Cyanamid Co. v Ethicon Limited (1975) 1 All ER 504 where the House of Lords set out the following guidelines namely:
i. Whether there was a sufficiently serious (substantial) matter to be tried.
ii. Whether damages were an adequate remedy for the claimant if an injunction was not granted.
iii. If damages would not be an adequate remedy, whether the claimant would be able to give an undertaking in damages to the defendant.
iv. If it was considered that there was any difficulty regarding the availability of damages on either side, the court should consider the balance of convenience between the parties.
v. If these factors were evenly balanced, the court should consider maintaining the status quo.
16. The first condition is whether the applicant has made out a prima facie case with a probability of success. In the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR, a prima facie case was described as follows:
“A prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case 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.”
17. The applicant herein has presented a case of breach of contract by the respondent. I have seen in his list of documents supporting the suit, copies of contracts entered between the applicant and the 1st defendant. I have seen a copies of documents supporting the following contracts:
a. contract agreement dated 16th July 2023 for proposed construction of Kwale Slaughtershouse Phase II Tsimba/Golini, together, Local Purchase Order, a certificate of practical completion, a final payment certificate and payment vouchers.
b. Award notification for supply and delivery of tractor batteries dated 15th November 2023 for KShs 598,500/=, acceptance of the same by the applicant, an LPO dated 22nd November 2023, delivery note and invoice.
c. Agreement for proposed cabro paving and street lighting from Waa-Mbweka road in Waa/Ng’ombeni ward” dated 7th November 2023, for KShs 18,014,698.85, acceptance of the sme by the applicant dated same date, requests for payment and interim payment certificate dated 15th May 2024.
d. Contract for extension of piped water from Kizingo Dam-Mwangaza-Ryakalui village in Mackinnon road ward for the sum of KShs 10,848,993.96; Notification of award dated 21st November 2023; LPO dated 23rd November 2023, certificate of practical completion dated 7th February 2024 and a payment voucher for KShs 10,332,375.20 dated 14th February 2024.
e. Agreement for proposed construction and completion of Longido ECDE in Ramisi ward dated 20thApril 2022 for a sum of KShs 5,856,306.40 and a payment voucher for KShs 5,631,266.40 dated 4th May 2023.
f. The bulk of the documents comprising of travel work sheet vocuhers, invoices and demands for payment are for taxi services.
18. I have also seen some documents for contracts but which are not for the applicant with the 1st respondent. For instance, the agreement dated 8th December 2020 for “hiring machinery and specialized equipment for sports leveling which is between the County Government of Kwale and Le Star Limited.”
19. These contracts between the applicant and the respondent have not been disputed and the applicant’s contention that some of them have not been settled has not been denied by the 1st to 4th respondents since none of them filed a replying affidavit.
20. I am aware that at this stage, the court is not required to make definitve findings of fact or law on the assertions made by the parties. See the case of Airland Tours and Travel Ltd v National Industrial Credit Bank Ltd Nairobi (Milimani) HCCC No. 1234 of 2002 where the Court held that:-
“In an interlocutory application, the Court is not required to make any conclusive or definitive findings of facts or law, most certainly not on the basis of contradictory affidavit evidence or disputed proposition of law.”
21. In addition to the case of Mrao above, in the case of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR and Mulla (The Code of Civil Procedure, 18th edn. Lexis Nexis (2011) p. 3320) there is further exposition on what entails a prima facie case. In the Nguruman case, it is further expounded that in determining whether a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely, except to see that the applicant has a right which has been or is threatened with violation.
22. In the circumstances, I am satisfied that on a balance of probability, the applicant has established a prima facie case, one that is genuine and arguable at the main hearing. The first condition for grant of a temporary injunction is therefore satisfied.
23. The second condition is whether the plaintiffs/applicant have demonstrated that they stand to suffer irreparable injury which would not be adequately compensated by an award of damages.
24. Irreparable injury has been defined in equity as, “the type of harm which no monetary compensation can cure or put conditions back the way they were”. In Alternative Media Limited vs. Safaricom Limited (2004) eKLR, the court held as follows:
“The second principle established by the Giella case for the grant of an interlocutory injunction is that the Plaintiff will suffer irreparable harm which would not be compensated in damages. Considering this very point in the case of Mureithi vs City Council of Nairobi (1979) LLR 12 Madan JA (as he then was) cited with approval the speech of Lord Diplock in the case of American Cynamid Co. vs Ethicon (1975) 1 ALL E.R. 504 at page 506 where he said:- the object of the interlocutory injunction is to protect the Plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial… if damages in the measure recoverable at common law would be adequate remedy and the Defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted however strong the Plaintiff’s claim appeared to be at that stage.”
25. In the present casethe suit is for breach of contract for failure to make payments for works done and services rendered running all the way from 2021 to 2024. The temporary injunction herein is sought in order to restrain the 5th respondent from approving the 2025/2026 Budget Estimates for the County Government of Kwale. It is the applicant’s contention that the proposed budget does not contain estimates for settlement of its claims against the 1st respondent.
26. Clearly, there is no dispute between the applicant and the 5th respondent save that the 5th respondent in approving the budget will be carrying out its constitutional and legislative mandate.
27. The sums claimed by the applicant are not very clear from the documents provided. All the same, the sums are computable and a final figure can be found.
28. Consequently, I find that the applicant has not shown that damages will not be an adequate compsation even if, as it states that, there have been past breaches of payment even when the sums claimed had been provided for in the county government’s budgets.
29. The final condition to determine is in whose favour the balance of convenience tilts. A temporary injunction serves the purpose of preserving and protecting the subject property in dispute as was held in the case of Exclusive Estates Ltd v Kenya Posts and Telecommunications Corporation and another, Civil Application No. Nairobi 62 of 2004 [2004] LLR 5917 (CAK) that:
“A temporary injunction is issued in a suit to preserve the property in dispute in the suit of the rights of parties under determination in a suit pending the disposal of the suit, to preserve the subject matter’’
30. In the present case, I find that the balance of convenience tilts in favour of not granting the temporary injunction given that the failure to approve the budget will lead to dire ramifications for the entire county. I do not think that it should concern the applicant that its claim must be provided for as such in the Budget Estimates. Secondly, if it were to succeed at the hearing, where the County Government gets the money to pay it should be the least of its concerns. Its work will be to execute against the County government against the sums found due.
31. Finally, I am inclined to find that stopping approval of the Budget Estimates will lead to greater hardship to the people of Kwale as compared to the applicant’s private right to enforce the contract. Failure to discuss and approve the budget will have the effect of paralyzing the operations of the County including getting the very funds that the applicant is seeking from the County government. It would not be in the public interest to issue orders whose effect would be to paralyze operations of the county government pending the hearing and determination of the main suit (see the cases of Masomo v County Government, Taita-Taveta & 2 others [2016] KECA 631 (KLR) and County Executive of Kisumu & 2 others v Kisumu County Assembly Service Board & 5 others [2015] KECA 667 (KLR).
32. Consequently, I find that the application does not meet the standard for grant of a temporary injunction. The same is not allowed.
33. The costs shall be in the cause.
34. Orders accordingly.
ANDAYI W. F.
JUDGE
Written, dated, signed, and delivered on the virtual platform, Teams this 2nd day of October 2025.
In the presence of:
In person for the Plaintiff/Applicant.
N/A for the Defendants/Respondents.
Court Assistant: Ummu
'