ISSUE No. a). Whether the Plaintiffs/Applicants’ application dated 12th April 2022 meets the threshold for granting of orders of temporary injunction.
17.The main purpose for injunctions are primarily to preserve the suit property in the meantime awaiting an outcome of the hearing of either the application or the suit. The provision of Order 40 Rule 1 of the Civil Procedure Rules, 2010 provide for temporary injunctions: -1.Temporary injunction may be granted where in any suit it is proved by affidavit or otherwise—a.that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; orb.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.
18.Additionally, the principles of granting orders for temporary injunctions were set out in the well-known cases of: -a.The famous case of:- ‘Giella – Versus - Cassman Brown & Co Ltd (1973) EA 358, where it was stated: - “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 be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenienceAnd in the Court of Appeal case of:-b.Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others  eKLR, where the Court held:-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…………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”.
19.It is therefore very clear from the precedence above that all the three (3) pre - conditions must be met by the Plaintiff/Applicant for the Honorable Court to be persuaded to exercise its discretion in granting an order of temporary injunction.
20.On the 1st condition, I am guided by the case of “MRAO Limited – Versus - First American Bank of Kenya Ltd & 2 others (2003) KLR 125 in which the Court of Appeal defined “a Prima facie” case:-
21.In summary, the present application filed by the Plaintiff/Applicant is supported by and affidavit of Mohamed Ahmed Anwar sworn on 12th April 2022 where he deponed that he is one of the shareholders of the Plaintiff/Applicant herein and has the power of attorney to appear on behalf of the Plaintiff/Applicant. He deponed that the Defendant/Respondent is also a shareholder of the Plaintiff/Applicant, who, without the consent of the other shareholders, had connived and fraudulently transferred the suit property to one of the Plaintiff/Applicant’s directors Hadi Bahadurali Hasham, now deceased by reversionary interest for a value of a sum of Kenya Shillings One Thousand (Kshs. 1,000/-) only on 5th July 2016. He further averred that the deceased later on fraudulently transferred the entire suit property located in Miritini, Mombasa, to the Defendant/Respondent for a value of Kenya Shillings Fourty Thousand (Kshs. 4, 000, 000/-) on 29th June 2017 as a consideration of a past debt between them.
22.In response, the Defendant/Respondent, through his Replying Affidavit sworn on 21st June 2022 deponed that he was the majority shareholder of the Plaintiff/Applicant and that he was the registered owner of Land Registration Number L.R. NO. MN/V/2620, the suit property, having legally acquired the same from its previous owner free of all claims or defects on the title. He further averred that Mohamed Ahmed Anwar has no capacity to bring a suit or make averments on behalf of the Plaintiff/Applicant.
23.Although this Court reserves matters of evidence to the full trial, but for purposes of this application, there if need to establish whether the Plaintiff/Applicant has a “Prima Facie case” herein. To do so, I have had to quickly perused the pleadings and found a copy of the CR – 12 Form generated from Companies Registry, marked as “MAA – 1” of the annextures whose contents indicates that indeed the Plaintiff/Applicant’s assertions that the Defendant/Respondent is indeed a shareholder of the Bakamoyo Company Limited, the Plaintiff/Applicant’s company is true. Additionally, I have also confirmed that the Plaintiff/Applicant’s deponent’s capacity through the annexture marked as “MAA -1”, a duly executed and stamped Power of Attorney between the Plaintiff/Applicant and Mohamed Ahmed Anwar dated 15th May 2018. I however note with concern that the director/shareholder that executed the Power of Attorney on behalf of the Plaintiff/Applicant is Hadi Bahadurali Hasham(deceased), who, as per the Plaintiff/Applicant’s claims, fraudulently transferred the suit property to the Defendant/Respondent.
24.The Plaintiff/Applicant’s claim that the deceased, Hadi Bahadurali Hasham transferred the property to the Defendant/Respondent is also clear from the Transfer Instrument, dated 23rd June, 2017 annexed copy of title marked “MAA – 3”. Furthermore, the Plaintiff/Applicant has also provided a copy of a letter marked ‘MAA – 4” from the Law Society of Kenya on the advocate purported to conduct the transfer, showing hat the said advocate was deceased at the time of transfer and that he did not turnover his practice to another Counsel. The Defendant/Respondent has not provided any evidence to controvert the Plaintiff/Applicant’s assertions.
25.The court is not blind to the fact that this is an interlocutory application and the dispute between the parties is still outstanding. But it is quite evident that the evidence provided by the Plaintiff/Applicant raises serious questions of fraud and ownership of the suit property. Based on all these facts, the Honorable Court as guided by the “MRAO Case as quoted above is fully satisfied that the Plaintiff/Applicant herein has “a Prima facie case” with a high chance of succeeding and the evidence shows the infringement of its rights.
26.On the 2nd condition of irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, the Court of Appeal in the case of: “Nguruman Limited (supra), held that: -
27.The Deponent for the Plaintiff/Applicant averred that they had just recently learnt of the fraudulent transfers and was apprehensive that the Defendant/Respondent was in the process of disposing the suit property, which would not only be prejudicial to the other shareholders but also occasion irreparable loss if the court fails to preserve the suit property pending the hearing and determination of the main suit.
28.In response the Defendant/Applicant deponed that the application dated 12th April 2022 was frivolous, vexatious, an afterthought brought after an unreasonably long time and an abuse of court process. He stated that the Plaintiff/Applicant had filed a similar application for temporary injunction in the past and its sole intention was to delay the conclusion of this matter and cause him unnecessary expenses defending the applications.
29.The court is cognizant to the fact that the Plaintiff/Applicant has not presented any evidence that would suggest that damages could not have been an adequate remedy as per the case of “Nguruman Limited (supra) where the Court of Appeal emphasizes that there must be more than an unfounded fear or apprehension on the part of the applicant. In fact, the Plaintiff/Applicant’s exact phrase as per the content made out under Paragraph 8 of the Chamber Summons and the contents made out under Paragraph 9 of the Supporting Affidavit, both filed on 13th April 2022, were and I quote, “………that the Plaintiff/Applicant just recently learnt of the fraudulent transfers and is apprehensive that the Defendant/Respondent is in the process of disposing the suit property.”
30.However, it is the Court’s view that, the value of the suit property is easily quantifiable. For avoidance of speculator injury and fulfilment of the 2nd condition of irreparable injury by the Plaintiff/Applicant, it is demonstrated in the strength of the evidence in support of the present Application. The Plaintiff/Applicant produced a copy of a Certificate of title marked as “MAA – 3” to show that the Defendant/Respondent was registered owner of the suit property. Indeed, the Plaintiff/Applicant through the application was only seeking for preservation of the suit property until the determination of the main cause herein. Under this circumstances, the Court finds that the Plaintiff/Applicant has satisfied the 2nd condition on proving irreparable injury.
31.On the 3rd condition of balance of convenience. I am of the view that it tilts in favor of the Plaintiff/Applicant who has provided evidence to raise such weighty questions of fraud having occurred and the ownership of the suit property. Thus, It’s in the interest of justice and for both parties, to have the Honorable Court secure and preserve the suit land from any interference during the pendency of the case and also based on the “Doctrine of Lis Pendens” as provided for under the provision of Section 52 of the Transfer of Land Act, until the case is heard and determined on merit. I proceed to grant the orders as prayed.