Whether the supporting affidavit of Danson Siba sworn on 10th May 2022 is defective
8.The Defendants/Respondents have challenged the Notice of Motion Application dated 10th May 2022 as being fatally defective for failure to attach and rely on any annexures in the supporting affidavit. They contend that since the annexures were not properly and procedurally produced for consideration by the court, it offends Rule 9 of the Oaths and Statutory and Statutory Declaration Rules. They cited Inamol Jesus Berakoetxea & 2 Others v Edward Buria & 2 Others  eKLR in support.
9.The Plaintiff’s rejoinder is that the affidavit complies with the said Rule 9, as the deponent at paragraph 4 averred that that they relied on the affidavit filed in support of the Originating Summons.
10.Rule 9 of the Oaths and Statutory and Statutory Declaration Rules provides:
11.I have considered the impugned supporting affidavit by Danson Siba dated 10th May 2022. Indeed, he does not directly produce any exhibits, but refers the court to the supporting affidavit annexed to the Originating Summons filed alongside the Application. He avers at paragraph 4 of the supporting affidavit:
12.It is my understanding that by the above reference, the Plaintiff/Applicant relied on both the supporting affidavits on record, sworn by Danson Siba on 10th May 2022. There is no law that prohibits the Applicant from making a cross-reference to a document they have already filed in court. Indeed, the affidavit in support of the originating summons is voluminous and a duplication of the same would result in wastage of resources. Accordingly, it is my view that the supporting affidavit is properly on record as it meets the formal and procedural requirements of Rule 9 of the Oaths and Statutory and Statutory Declaration Rules. The Objection by the Defendants/Respondents is unmerited and therefore overruled.
Whether the Plaintiff/Applicant has met the threshold for the grant of an interlocutory injunction in respect of the suit properties.
13.The test for the grant of an interlocutory injunction was well settled in Giella v Cassman Brown  eKLR form the issues for determination. That the Applicant must establish a prima facie case with a probability of success; demonstrate irreparable injury if a temporary injunction is not granted and if the court is in doubt as to the first two conditions, the application ought to be determined on a balance of convenience. The court of appeal in Joseph Ntombura v Godfrey Simiyu & 4 others  eKLR reiterated these principles as follows:
14.The plaintiff's case is that the 1st defendant, being a public officer employed by the Kenya Revenue Authority (KRA), received huge successive cash deposits disproportionate to his legitimate sources of income, which he invested in landed properties and motor vehicles through the 2nd and 3rd Respondents. They contend that the 1st Respondent while working as a public officer at the Kenya Revenue Authority (KRA), had amassed wealth that was not commensurate with his known sources of income. That the Plaintiff conducted investigations into the said allegations and upon conclusion of its investigations established that in the period between January 2012 and January 2021, (the period of interest) the 1st Respondent, who at the time of his resignation from the Kenya Revenue Authority had amassed wealth that was not commensurate with his known sources of income. That their investigations revealed that the 1st Respondent received huge and successive cash deposits in his various bank accounts which he could not satisfactorily demonstrate the source and therefore the Plaintiff reasonably suspects that the same were monies received by the 1st Respondent by virtue of his office and reasonably suspected to be bribes. The total unexplained assets stood at Kshs. 359,537,690.51, but upon issuance of notices the respondents were able to explain only Kshs. 83,140,717.80 leaving assets valued at Kshs. 278,472,624.36 as unexplained assets, subject of the recovery proceedings.
15.The Defendants/Respondents have not filed any affidavits contending the allegations. They have also not challenged the allegations raised in the Notice of Motion and Supporting affidavits by the Plaintiff/Applicant. From a cursory review of the Originating Summons, the affidavits and annexures filed, it is my considered view that the Plaintiff has established a prima facie case with a likelihood of success. It does not help the Defendants have failed, as at the date of this Ruling, to file any response to the Originating Summons.
16.On the second principle of whether the Applicants shall suffer irreparable harm, the Applicant contends that there is a threat of irreparable injury. Indeed, the Plaintiff seeks an injunction prohibiting the transfer, alienation or wastage of the assets subject of the recovery suit as listed in the prayers in the Application.
17.This court, while considering the issue of irreparable harm in a similar suit in Ethics & Anti-Corruption Commission v Moses Kasaine Lenolkulal  eKLR held as follows:
18.There is an apparent risk that the Defendants, if not restrained, are likely to transfer, sell, or deal with the assets subject of recovery in a manner that would be detrimental to the Plaintiff’s ability to recover the suit properties should they be successful. They would then be constrained to spend public resources in the tracing of the assets and proceeds, which surely an uneconomical way to spend public funds. Accordingly, it is my view, that the Plaintiff/Applicant is likely to suffer irreparable harm should the court decline to grant injunctive reliefs as sought.
19.Lastly, on a balance of convenience, despite this court not being in doubt on the first two limbs of the test in Giella v Cassman Brown, it is my view that the scales tip in favour of the Plaintiff/Applicant. This court granted an interim injunction in terms of prayers 1,2,3 and 4 of the Application on 12th May 2022. The Defendants have not shown to this court, the inconvenience suffered that would outweigh the impending risk of loss or dissipation of the suit properties. It therefore goes without say, that it is convenient, in the circumstances, to grant the injunction in favour of the Plaintiff/Applicant.
20.The upshot is that the Plaintiff/Applicant’s Notice of Motion dated 10th May 2022 is successful. Prayers 1,2,3, and 4 having been already granted by this court in the order dated 12th May 2022, prayers 5,6 and 7 of the Application are granted as prayed and it is hereby ordered:(a)That pending the hearing and determination of this Suit this Honourable Court be pleased to issue an order of injunction restraining the Respondents, their agents, servants and/or any other persons from selling, transferring, charging or further charging, leasing, developing, subdividing, disposing, wasting, or in any other way (howsoever described) alienating the following properties:i.Properties registered in the name of Jeremiah Kamau Kinyua, 1st Respondent): LR NO. 8226/21 IR 75601, Nairobi/Block 110/782, KJD/Kitengela/57666, KJD/Kitengela/65581, KJD/Kitengela/65582 with the total value of Kshs 68,800,000ii.Properties registered in the name of Bestline Enterprises, 2nd Respondent LR No. 2922/14 located at Laikipia County with the total value of Kshs 18,000,000iii.Properties registered in the name of Cherya Enterprises 3rd Respondent: Ruiru/Kiu Block 3/1379 located at Ruiru, Ruiru/Kiu Block 3/1380 located at Ruiru, RUIRU/Kiu Block 3/3627 located at Ruiru with the total value of Kshs 95,000,000(b)Thatpending the hearing and determination of this Suit, this Honourable Court be pleased to issue an order of injunction restraining the Respondents, their agents, servants and/or any other persons from selling, transferring, disposing, wasting, or in any other way (howsoever described) alienating the following Motor Vehicle: KCH 625 W Toyota Prado registered in the name of Cherya Enterprises(c)Thatpending the hearing and determination of the Suit, the Plaintiff be allowed to keep custody of the Kshs. 500,000.00 and Yuan 15,648.00 seized from the 1st Defendant's residential premises on 9th June 2021.(d)The costs of the application shall be in the cause.Orders accordingly.