RULING:
1. I have considered the Notice of Motion application dated 4.12.23 together with the affidavit in support sworn on even date and the replying affidavit in opposition to the same sworn on 15.12.23.
2. I have also considered the Preliminary Objection dated 14.12.23, which I have directed shall form part of the grounds taken in objection to said application, and the submissions of counsel, and the relevant law.
3. Order 40 rule 1 provides that the grant of an injunction must be grounded in a suit. It states clearly: “Where in any suit it is proved by affidavit or otherwise”, it then goes on to lay out the relevant grounds for the grant of an injunction, which need not be repeated in full here.
4. To my mind, the above rule is a prerequisite and may not be wished away. I find the applicant has not complied with Order 40.
5. Additionally, the applicant seeks a mandatory injunction. I note the relevant law is found in the case of Kenya Breweries Limited v Washington Okeyo [2002] eKLR cited in the case of Paul Mwaniki Gachoka & another v Nation Media Group Limited & another [2019] eKLR, where the court reasoned that:
“A Mandatory Injunction can be granted on an interlocutory application as well as at the hearing but, in the absence of special circumstances it will not normally be granted. However, if the case is clear, and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied or if the defendant attempted to steal a match on the plaintiff. A mandatory injunction will be granted on an interlocutory application.” …
6. Based on the above, a grant of a mandatory injunction requires an applicant to meet, not only the criteria set out in Giella vs. Cassman Brown & Co. Ltd [1973] EA 358, namely, 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.
But, in addition to the above, demonstrate that there are special circumstances, over and above the said requirements.
7. From my analysis of the respective positions presented above, I have not come across any compelling factors that would warrant the grant of a mandatory injunction at this stage.
8. I also find that the applicant has not brought any credible evidence to show that the debt is due, transfer of the vehicles having already taken place, and change of ownership having been registered.
9. Moreover, the applicant has not shown that the injury it will suffer is so grave and so immediate as to result in grave hardship unless and until a mandatory injunction is granted at this interlocutory stage.
10. Accordingly based on the reasons set out above, I find the preliminary objection succeeds, additionally, I find that Notice of Motion application dated 4.12.2023 is without merit and the same is dismissed with costs.