Sarah v Multiple Hauliers (EA) Limited & another (Environment & Land Case 12 of 2021)  KEELC 15667 (KLR) (21 February 2023) (Ruling)
Neutral citation:  KEELC 15667 (KLR)
Republic of Kenya
Environment & Land Case 12 of 2021
EK Wabwoto, J
February 21, 2023
Halima Haji Sarah
Multiple Hauliers (EA) Limited
Ajmal Company Limited
1.This ruling is in respect to the 2nd Defendant’s application dated 23rd November 2022 seeking for the following orders: -
2.The said application was premised on the following rounds in support:
3.The application was further supported by the affidavit of Bashir Abdi Mohamed a Director of 2nd Defendant sworn on the 23rd November 2022.
4.On 23rd November 2022, when the application was placed before this Court, it was directed that the said application be canvassed by way of written submissions upon which the court would render its ruling. Save for the 1st Defendant, the other parties complied. The 1st Defendant filed written submissions dated 25th November 2022 and further submissions dated 7th December 2022. The Plaintiff filed written submissions dated 2nd December 2022.
5.In its submissions, the 2nd Defendant outlined five issues for determination. These were as follows;
6.It was submitted that the Plaintiff did not have a prima case with a probability of success to warrant the grant of the interlocutory injunction. Reliance was made to the cases of Mrao Limited v First American Bank of Kenya & 2 others  eKLR and Peter Kaime Gitu v KCB Bank Kenya Limited & Another  eKLR.
7.The 2nd Defendant contended that the Applicant is the registered owner of the suit property known as L.R. No. 209/4194/38 and that there is no dispute as to ownership of the suit property and that the Plaintiff doesn’t claim ownership of the said suit property or any beneficial interest.
8.On irreparable harm, the 2nd Defendant contended that the Plaintiff was only a tenant on the suit property and that the 2nd Defendant had purchased it from the 1st Defendant for valuable consideration and that in the likely event that the Plaintiff’s claim is upheld, the compensation by payment of damages would be an adequate remedy. It was also submitted that the interlocutory injunction issued by this court has resulted in the applicant to suffer irreparable injury amounting to daily costs of Kshs 500,000/- arising from losses and penalties due to its contractors who are already on site to carry out the construction project which the Plaintiff has no capacity to pay to the 2nd Defendant herein.
9.It was also stated that the suit property had already been excavated which poses a serious danger of death to the public and destruction of other adjacent properties neighbouring the suit property thereby exposing the 2nd Defendant to enormous legal liability.
10.On whether the balance of convenience was in favour of granting the interlocutory injunction in favour of the Plaintiff, the 2nd Defendant contended that the balance of convenience lies against granting the interlocutory injunction as the 2nd Defendant stood to suffer the greater harm than the Plaintiff since the 2nd Defendant is the bonafide, legal and registered owner of the suit property.
11.On the issue of the application being res judicata, the 2nd Defendant contended that an interlocutory temporary injunction granted by the court as provided by Order 40 of the Civil Procedure Rules 2010 is not a final and conclusive decision of the court and hence therefore the same cannot be res judicata.
12.It was contended that the application was in no way an abuse of the court process since it seeks to set aside the orders of this court issued on 28th July 2022 that has resulted in the defendant continues incurring of daily costs of about Kshs 500,000/-
13.The Plaintiff in her submissions dated 2nd December 2022 reiterated that the application was res judicata and also an abuse of the court process for the reasons that various applications have been filed seeking similar orders. The court was urged to dismiss the application with costs.
14.The jurisdiction of the court to set aside an or vary an order of injunction is outlined under Order 40 Rule 7 Civil Procedure Rules, 2010 which provides as follows:
15.A court may set aside and or vary its orders on the discovery of new and important issue or evidence which it did not have at the time of issuance of the said orders
16.In the instant application, the 2nd Defendant has raised issues to the effect that they are incurring losses of about Kshs 500,000/- and that the Plaintiff has no financial capability to pay the said damages in the likely event the suit is dismissed. The 2nd Defendant also raised issue to the effect that the suit property had already been excavated which poses a serious structural and environmental danger to the public and other adjacent properties. These are weighty issues which unfortunately have not been controverted by the Plaintiff. In view of the above and having considered the facts in support of the application and in opposition thereto, I am satisfied that the 2nd Defendant has met the threshold to warrant review and or variation of the orders issued on 28th July 2022 in respect to Land Reference number 200/4194/38.
17.In view of the foregoing and also considering the need to avoid wasting away of the suit property and while doing substantive justice to all the parties, this court is inclined to vary and review its orders issued on 28th July 2022 in line with certain conditions.
18.In view of the foregoing, the application dated 23rd November 2022 is partially granted albeit in the following terms: -i)That pending the hearing and determination of the suit, the 2nd Defendant shall proceed with the proposed development on the suit property in accordance with the existing development approvals on condition that it avails and deposits with this court a bank guarantee in the sum of Kshs 5,000,000/- within 30 days from the date hereof.ii)That in default to deposit the bank guarantee stated in order (i) within the stated timelines, the orders issued hereof shall automatically lapse.iii)Parties be at liberty to apply where appropriate.iv)Costs of the application to abide outcome of the suit.It is so ordered.
Dated, Signed and Delivered at Nairobi this 21st day of February 2023.E.K. WABWOTOJUDGEIn the presence of:Mr. Munyabu holding brief for Dr. Khaminwa for the Plaintiff and also appearing with Mr. Mr. Nyakundi for the Plaintiff.Mr. Mwihuri for the 1st Defendant.Mr. Mura for the 2nd Defendant.Court Assistant – Caroline Nafuna.E.K. WABWOTOJUDGE