REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA

Civil Suit 267 of 1997

SALEH MOHAMED JUMA SALEH MOHAMED..............PLAINTIFF

- Versus -

RAMLA RUBEIYA SAID  ........................................  1ST DEFENDANT

IBRAHIM MUSA & SONS LTD................................2ND DEFENDANT

RULING

By Chamber Summons dated 29.8.97, the Plaintiff/Applicant seeks an order under Order 39 Rule 1, 2 & 3 of the Civil Procedure Rules.

"That this Honourable Court be pleased torestrain the Defendants by themselves theirservants and agents from evicting thePlaintiff from the suit premises being a housewithout land on Plot No. 424/89/X/MSA untilthe determination of the main suit."

The cause of action in the main suit is a breach of contract and the main prayer sought is a declaration that the plaintiff has a Builder's lien over the Defendant's property.  The injunction in the main suit is also sought on the basis that the lien exists and should continue until it is discharged.

The building contract is said to have been entered into in  November 1992 for a fixed sum of Shs. 2 million.  The plaintiff says he carried out his part of the contract but the 1st defendantdid not as he refused failed or neglected to pay a balance of Shs.1,311,000 to the plaintiff. Thereafter he purported to sell theproperty to the 2nd defendant before the matter of payment wasconcluded. It is the 2nd defendant who attempted to takepossession of the property which the plaintiff said he held as alien, before coming to court on 29.8.1997. If the lien isdisturbed, he says he will not be able to recover his money.

In his submissions, Counsel for the Applicant Mr. KiarieKariuki, stated that the threatened forcible eviction of, theApplicant is unlawful and the defendants should be restrained fromtaking the law into their hands. The only issue, he submitted, wasthat the plaintiff is owed money for a building contract. Althoughthis is denied in defence it will be for the court to decide. Heconceded that damages would be sufficient in the matter butcontended that in this case they would not be recoverable if theApplicant parts with possession of the only asset owned by the 1stdefendant which has not been transferred but may be transferredanytime. He made no submissions on whether there is a prima faciecase with a probability of success but submitted that the balanceof convenience is in favour of granting the injunction.

Opposing the application Mr. S.M. Kimani for the twodefendants contended that the Application does not fall within theparameters set out in Giella -Vs- Cassman Brown Co. Ltd. [1973] EA358.

There is firstly no basis for declaration sought as the plaintiff merely seeks a lien. That is a genre of security and not a substantive right.  No right is claimed on the property itself.

For the definition of "lien" he relied on Jowits Dictionary of English Law and Strouds Judicial Dictionary where lien is defined as "a right by which a person is entitled toobtain satisfaction of a debt by means ofproperty belonging to the person indebted tohim. It is neither a Jus in re nor Jur adrem i.e. it is not a right of property in thething itself nor a right of action to thething itself. A lien is a species ofsecurity"

He submitted therefore that there was no cause of action since a lien can only be used as a shield to prevent dispossession and not as a cause of action.

Mr. Kimani further submitted that there is a requirement underOrder 39 that the suit property be specified. In this case thesuit property is a contract not the house. Even if it was thehouse, it has to be shown that it is in danger of being damaged orwasted.  Nothing has been shown.

Furthermore a lien cannot arise in a building or Engineering contract.  A builder's lien is on material not the building.  The property in the building remains with the owner.  For this proposition he cited Halsbury's Laws of England 4th Edition Vol.4:

"A lien might arise, in favour of the contractor where in fixed materials are in his possession after the property then has passed to the employer. . Otherwise it seems that a true  lien  cannot  arise  in  building  or engineering contracts since both ownership and possession will be in one party or the other.

"It is clear that the contractor has no lien over materials which have been fixed Johnson -Vs- Crew (1836) 5 OS 200."

That being the case, Mr. Kimani submitted, the Applicant's suit lies in damages and he has claimed liquidated damages at Shs. 1,311,000/=.

Finally Mr. Kimani submitted that the 1st Defendant who is theowner of the building never lost possession of it and therefore thequestion of a lien by the Applicant does not arise. For whatamounts to possession he cited Republic -Vs- Cavendish (1961) 2 ALLER 856; a criminal matter relating to possession of stolen goods.If therefore there was never a lien, a prima facie case does notarise and the application fails.

Dealing with the authorities and the submission that therecannot be a builder's lien, Mr. Kiarie submitted that the matter inissue is a house without land and is therefore a chattel like amotor vehicle over which a garage owner can have a lien. It doesnot matter that the building is permanent and is four storeys highas in this case. The owner is a mere licensee of a chattel. Asfor possession, the defendants had none since they have no title to.the property.  There is an intention to transfer the property and contractor where in fixed materials are in his possession after the property then has passed to the employer.  Otherwise it seems that a true  lien  cannot  arise  in  building or engineering contracts since both ownership and possession will be in one party' or the other.

"It is clear that the contractor has no lien over materials which have been fixed Johnson -Vs- Crew (1836) 5 OS 200,"

That being the case, Mr. Kimani submitted, the Applicant's suit lies in damages and he has claimed liquidated damages at Shs. 1,311,000/=.

Finally Mr. Kimani submitted that the 1st Defendant who is theowner of the building never lost possession of it and. therefore thequestion of a lien by the Applicant does not arise. For whatamounts to possession he cited Republic -Vs- Cavendish (1961) 2 ALLER 856; a criminal matter relating to possession of stolen goods.If therefore there was never a lien, a prima facie case does notarise and the application fails.

Dealing with the authorities and the submission that therecannot be a builder's lien, Mr. Kiarie submitted that the matter inissue is a house without land and is therefore a chattel like amotor vehicle over which a garage owner can have a lien. It doesnot matter that the building is permanent and is four storeys highas in this case. The owner is a mere licencee of a chattel. Asfor possession, the defendants had none since they have no title tothe property.  There is an intention to transfer the property and therefore an injunction should issue.

I have considered the application and the submission ofCounsel, For the applicant to succeed, he has to show that thereis a prima facie case with a probability of success and even ifthat was the case, that damages are not an adequate remedy. Ifthere is any doubt about those two standards then the matter willbe decided on a balance of convenience. Those are the parametersset in the Giella Case (supra)

The cause of action pleaded is a building contract and analleged breach thereof. There are conflicting averments on bothsides on liability for such breach and the matter will no doubt bedecided in good time when evidence will be tendered and subjectedto cross-examination.

What concerns me is the claim the plaintiff makes as aconsequence of the alleged breach. Although it is pleaded in theplaint that there is an unpaid sum of Shs. 1,311,000/= there is noprayer for payment of such amount. The plaintiff instead prays fora declaratory order that he is entitled to a builders lien over thehouse he was building. But there cannot be a lien unless there isan outstanding debt! The alleged breach of contract and theconsequential debt is therefore the underlying cause of actionwhich will engage the time of the court hearing the matter. Theomission to specifically make a prayer for damages does not detractfrom this clear perception of the suit.

I am persuaded on the authorities cited that there cannot be therefore an injunction should issue.

I have considered the application and the submission ofCounsel. For the applicant to succeed, he has to show that thereis a prima facie case with a probability of success and even ifthat was the case, that damages are not an adequate remedy. ifthere is any doubt about those two standards then the matter willbe decided on a balance of convenience. Those are the parametersset in the Giella Case (supra)

The cause of action pleaded is a building contract and analleged breach thereof. There are conflicting averments on bothsides on liability for such breach and the matter will no doubt bedecided in good time when evidence will be tendered and subjectedto cross examination.

What concerns me is the claim the plaintiff makes as aconsequence of the alleged breach. Although it is pleaded in theplaint that there is an unpaid sum of Shs. 1,311,000/= there is noprayer for payment of such amount. The plaintiff instead prays fora declaratory order that he is entitled to a builders lien over thehouse he was building. But there cannot be a lien unless there isan outstanding debt! The alleged breach of contract and theconsequential debt is therefore the underlying cause of actionwhich will engage the time of the court hearing the matter. Theomission to specifically make a prayer for damages does not detractfrom this clear perception of the suit.

I am persuaded on the authorities cited that there cannot be a lien on a building or engineering contract. It matters not that the building may be regarded as a chattel as submitted by Mr. Kiarie or as "land" as defined in law. The lien is on unused materials unless there is agreement to the contrary, which has not been pleaded and the property in the building remains with the owner throughout, I entertain grave doubts therefore that the plaintiff has a prima facie case with a probability of success.Even if there was such a case, I find that the second limb of the Giella Case parameters has not been surmounted. It is admitted, and rightly so, by the; Applicant's Counsel, that damages are an adequate remedy. On that admission the question of granting an injunction dissipates. For an injunction cannot be granted in a matter where damages are an adequate remedy.

As I see it, and as correctly assessed by Mr. Kimani for theRespondents, what the Applicant really seeks is security for the recovery of such damages as may be payable to him consequent upon breach of contract by the 1st Respondent. But there are clear provisions in the Civil Procedure Act for grant of security before judgment. These provisions have not been invoked and I say nothing more about their application.

I am satisfied that this matter does not qualify for an injunction under Order 39 Civil Procedure Rules and I would dismiss the application with costs.

Dated at Mombasa this 19th day of August 1998

P.N. Waki

JUDGE