Response by the 2nd and 9th Respondents
4.The 2nd Defendant/Respondent deposed that he is an employee of the Kenya Prisons Service, a department in the Ministry of Interior and Coordination of National Government, holding the rank of Police Constable in the Department of Directorate of Logistics; That he has served in the said rank of Constable since his employment in the year 2008; that no investigations were conducted as claimed by the Applicant; that he has never perpetrated any fraudulent scheme of making false procurement documents including Local Purchase Orders, Delivery Notes, Inspection and acceptance certificates, invoices, S13 and a pre-qualified list of suppliers used to support payment vouchers; that he has never falsified any document to actuate payment and this Application is made in bad faith and is an abuse of the court process to procure an injunction.
5.On his part, the 9th Defendant/Respondent deposed that he worked in the State Department for Correctional Services in the Ministry of Interior and Coordination of National Government between the years 2016 and 2018; that he was not involved in the falsification of documents as alleged by the Plaintiff and this application is made in bad faith.
6.The application was to be canvassed by way of written submissions but none of the parties filed their submissions and hence the application will be determined on the affidavits filed.
Analysis and determination
8.It is trite that an order for an injunction is granted at the discretion of the court. The test for the grant of an interlocutory injunction was set in the locus classicus case of Giella v Cassman Brown  EA 358, the test is, whether the Applicant has established a prima facie case with a probability of success; whether irreparable injury would result should the injunction be declined and if in doubt of the above two tests whether the balance of convenience tilts in favour of the Applicant.
9.In the case of Nguruman Limited v Jan Bonde Nielsen & 2 others  eKLR the Court of Appeal held that the three-pronged test must be satisfied sequentially as distinct and separate logical hurdles and where a prima facie case is not established, then the tests of irreparable injury and balance of convenience test would not arise for consideration. The court stated: -
10.In this case the Plaintiff seeks to recover a sum of Kshs165,735,000 alleged to have been acquired fraudulently from the State Department of Correctional Services (State Department) on account of goods that were never supplied. The Plaintiff alleges that the State Department made irregular payments amounting to Kshs 450,138,000 to 17 companies and that out of the above funds, the Defendants irregularly received a total sum of Kshs 165,735,000 during the financial years 2016/2017, 2017/2018 and 2018/2019. The Plaintiff then particularizes the alleged fraud and illegality, abuse of office and conflict of interest against the 2nd to 10th Defendants as including that they falsified various accounting and procurement documents, uttered false documents and engaged in a fraudulent procurement practice contrary to the provisions of the Public Procurement and Disposal Act 2015. The Commission makes similar allegations against the 1st Defendant, and alleges that the fraud occasioned a loss of public funds in the sum of Kshs 165,735,000.
11.The Plaintiff alleges that the impugned motor vehicles Registration numbers KCL 393R and KCK 295L were acquired by the 1st Respondent from the funds which it is alleged were fraudulently acquired by the 1st Respondent from the State Department; that, the vehicles though registered in the names of the 1st and 2nd Interested Parties are intrinsically tied to the sum of Kshs 165,735,000 alleged to have been fraudulently paid to the 1st Respondent and are not severable from the claim.
12.It is my finding that the question as to whether the two vehicles, though registered in the names of the Interested Parties, were acquired by the 1st Respondent and whether they are traceable to the sum of Kshs165,735,000 which is alleged to have been fraudulently paid to the Defendants/Respondents is a bona fide issue triable by this court and this court finds therefore that the plaintiff has established a prima facie case. It is also my finding that were the vehicles to be lost, transferred or wasted and the Plaintiff/Applicant’s suit succeeds, it would have nothing to which it can trace the sum of Kshs 6,900,000 allegedly used to purchase the vehicles and it would suffer irreparable loss as a result.
13.It is also in the public interest that the properties are preserved pending the hearing and determination of the suit. Moreover, since the Plaintiff/Applicant would be the party most inconvenienced were the injunction to be denied and the case succeeds given that it would have to expend more of tax payers’ money to trace the property in order to satisfy the decree the balance of convenience tilts in its favour. Conversely, the Defendant/Respondents would be adequately compensated by an award for costs should the Plaintiff be unsuccessful in the main suit.
14.In the premises the application dated October 19, 2022 is merited and it is allowed as prayed.
15.Costs shall be in the cause.