A. Whether the Defendants have established a case for review of the ex parte mandatory injunction orders issued on 24th November 2020.
12.Section 80 of the Civil Procedure Act allows any person aggrieved by a decree or an order from which no appeal has been preferred or from which no appeal is allowed under the Act to apply for a review of the judgment or the order to the court which passed the decree or made the order.
13.Ideally, and in accordance with the said section 80 of the Civil Procedure Act, an application for review should be made before and considered by the Judge or court that made the order or issued the decree sought to be reviewed.
14.The order in issue and that is sought to be reviewed in this case was made by my sister Judge Lady Justice Komingoi who constructively recused herself from handling this matter. This matter was referred to me by the Presiding Judge of the Court thereafter. In any event, Lady Justice Komingoi, is no longer in the station. It is therefore my unenviable responsibility to consider the decision by my sister Judge in view of the application by the Defendants.
15.Order 45, rule 1 of the Civil Procedure Rules enumerates the grounds upon which an application for review under Section 80 of the Civil Procedure Act should be grounded on. As the court in the case of Republic v Public Procurement Administration Review Board & 2 others (2018) eKLR observed, Section 80 (of the Civil Procedure Act) gives the power of review while Order 45 sets out the rules. The rule provides that: -
16.The court in the case of Slyvester Nthenge v Johnstone Kiamba Kiswili (2021) eKLR rightly observed that there are three limbs discernible from part (b) of rule 1 (above), namely: -
17.The orders that the Defendants/Applicants seek to review in this case are ex parte mandatory injunction orders. These are not an ‘every day kind of orders’. They are granted only in ‘special circumstances’ at the interlocutory stage.
18.In the case of Stephen Kipkebut t/a Riverside Lodge & Rooms v Naftali Ogola (2009) eKLR, the Court of Appeal cited its earlier decision in E.A. Fine Spinners Ltd (in receivership) & 3 others v Bedi Investments Ltd, where Gicheru J.A. (as he then was) cited Megarry J (as he then was) in Shephered Homes Ltd –Vs- Sandahm (1971) 1 Ch.34 where he had stated that: -
19.In an earlier case, the Court of Appeal had pronounced the test for a mandatory injunction. This was in the case of Kenya Breweries Ltd and 2 others v Washington Okeyo  EKLR. The court expressed it in the following terms: -
20.The Defendants/Applicants have invited this court to look into the circumstances under which such drastic orders were granted ex parte and at the interlocutory stage.
21.The Plaintiff’s/Respondents, as pointed earlier filed further submissions dated 20th February 2023. In the said submissions, the Plaintiffs made reference to this court’s ruling of 16th February 2022 where the court noted that, “the law firm of Ogado & Co. Advocates is not properly on record for the Defendants”. The Plaintiffs submit that the import of that finding is that the application under consideration having been filed by an advocate who was not properly on record for the Defendants is defective and a nullity.
22.The Defendants in their further submissions vehemently opposed the further submissions by the Plaintiffs urging this court to uphold substantive justice over procedural technicalities as enjoined by article 159 (2) (d) of the Constitution of Kenya, 2010.
23.The circumstances leading to the issuance of the impugned orders are to say the least intriguing. The chronology of events is as here below:-Chronology of events.
- 12th May 2020 - suit filed by way of plaint dated 11th May 2020 together with Notice of Motion dated 11th May 2020 under certificate of urgency.
- 12th May 2020 - Lady Justice Komingoi made an order that application dated 11th May 2020 “is not certified urgent”. The same be served upon the Respondents for directions on 27th May 2020.
- 26th May 2020 - Affidavit of service filed confirms service of application upon Defendants.
- 27.5.2020 - Notice of Motion dated 11th May 2020 fixed for mention 28th May 2020
- 28th May 2020 – Leave is granted to the Defendants/Respondents to file their responses within seven days.
- 12th June 2020 -Justice Okong’o directs that the Plaintiffs Notice of Motion dated on 11th June 2020 be served upon the Defendants for hearing before Lady Justice Komingoi on 22nd July 2020
- 22nd July 2020 – The Plaintiffs do regularize the filing online with the new directions that all documents be filed through e-filing platform. The Defendants do file their documents within seven days thereafter.
- 27th October 2020 – Matter mentioned before the Deputy Registrar who directs that the matter will be mentioned on 23/3/2021 before Justice Komingoi for directions.
- 10.11.2020 - Justice Okong’o directs service of application dated 2nd November 2020 upon the Respondents for inter partes directions on 19.11.2020 before Lady Judge Komingoi.
- 24.11.2020 - Notice of motion dated 2.11.2020 allowed in terms of prayer 4 and 5.
- 2.12.2020 - Defendants file current application.
- 2.12.2020 - Justice Komingoi certifies the application dated 2.12.2020 urgent and grants interim orders in terms of prayer 2 of the application. Respondents to be served.
24.My observation is that on the date that the orders of mandatory injunction were granted, the matter was listed for mention. Further the application upon which the orders were granted had been amended by the Plaintiffs/Applicants without leave of the court. Additionally, the affidavit of service deponed on 23rd November 2020 confirms that the Notice of Motion application was served on the Defendants’ Advocates, Ogado & Co. Advocates, whom the Plaintiffs insisted were not properly appointed as Advocates for the Defendants. Finally, the Honourable Judge did not give any reasons explaining the ‘special circumstances’ behind her decision to grant the orders of mandatory injunction at the interlocutory stage.
25.While the Plaintiffs insisted that the Defendants’ Advocate was not properly appointed as an Advocate for the Defendants it is surprising that they went ahead to serve him with a mention notice on behalf of the defendants. Going by their argument then, the mention notice was therefore served on an unauthorized ‘agent’ of the Defendants.
26.Further, I must point out that while this court’s ruling of 16th February 2022 pointed out that the ‘law firm of Ogado & Company Advocates is not properly on record for the Defendants’, the court went further and stated that, ‘they should regularize that forthwith’. The court was deliberate in its use of the word, ‘regularize’. The clear and obvious meaning of the word in the context in which it was used was that the situation would be remedied by the Advocate filing a notice of appointment of Advocates, which they did as directed by the court.
27.In the court proceedings of 24th November, 2020, the court noted that the Defendants/Respondents had been served and went ahead to allow the application ‘in terms of prayer 4 & 5’ despite the fact that the mention notice had been served upon the Defendants’ Advocate’s law firm.
28.To, add ‘salt to an injury’, the mandatory injunction orders were granted on a mention date. Issuing substantive orders on a mention date is an issue that the Court of Appeal has addressed severally. In the case of Barclays Bank of Kenya Ltd & Another v Gladys Muthoni & 20 others  EKLR, the court made reference to the case of Republic v Anti-Counterfeit Agency and 2 others ex-parte Surgippharm Ltd  eKLR where Odunga J (as he then was) had examined several decisions of the Court of Appeal on the issuance of orders on mention dates as follows: -
29.From the foregoing, it is my finding that the impugned orders were made in error(s) which are glaring and apparent on the face of record. The errors are self-evident and do not require an elaborate argument to be established.
30.I therefore find that the Defendants have established a case for review of orders issued on 24th November 2020.
31.In regard to this issue, the Defendants have not provided this court with sufficient material or facts to enable the court make a decision. The prayer is disallowed.
32.I hereby set aside the ex parte mandatory injunction orders issued on 24th November 2020 in their entirety and direct that the Plaintiffs’ applications dated 11th May 2020 and 2nd November 2020 be set down for hearing inter partes forthwith. The costs of this application shall be in the cause.