Crispin Musembi Mulika v Nguvu Construction and Mining Limited,Inspector George Emojong, OCS Kitengela Police Station & Attorney General [2017] KEHC 2689 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL CASE NO.18 OF 2016

CRISPIN MUSEMBI MULIKA.....................................................PLAINTIFF/APPLICANT

VERSUS

NGUVU CONSTRUCTION AND MINING LIMITED....1ST DEFENDANT/ RESPONDENT

CHEIF INSPECTOR GEORGE EMOJONG

THE OCS KITENGELA POLICE STATION............... 2ND DEFENDANT/ RESPONDENT

THE HON.ATTORNEY GENERAL..............................3RD DEFENDANT/ RESPONDENT

RULING OF THE COURT

INTRODUCTION

1. The Plaintiff’s  Notice of Motion application dated 13th June,2016 and filed on 14th June 2016 was brought under the provisions of Section 1A,1B of the Civil Procedure Act,2010 and Order 40 Rule (1)(2)(3)(4),Order 51 Rule (1), 3(4) of the Civil Procedure Rules 2010 and all enabling provisions of the law. Prayer No (1) of the said application are spent. It sought the following remaining prayers that:-

1. Spent

2. Pending the inter-parties hearing of this application, this Honourable Court be pleased to issue an interim conservatory order restraining the 1st Defendant by itself ,its agents, servants and/or employees or otherwise howsoever from mortgaging, selling, disposing off and/or using truck trailer Registration No.KBT 937J/ZD 0246.

3. Pending the hearing and determination of this application, this Honourable Court be pleased to issue an injunction restraining the 1st Defendant by itself, its agents, servants and/or employees or otherwise howsoever from mortgaging, selling, disposing off and or using truck trailer Registration No. KBT 937J/ZD 0246.

4. Pending the hearing and determination of this suit, this Honourable Court be pleased to issue an order that the 1st defendant do forthwith return and restore to the plaintiff’s possession truck trailer Registration No.KBT 937J/ZD 0246 and from interfering with the plaintiff’s possession and user thereof.

5. In the alternative but without prejudice to the prayer no 4 hereof ,this     Honourable Court do issue an order that truck trailer Registration No.KBT 937J/ZD 0246 be returned by the 1st Respondent/Defendant to Kitengela Police Station pending the determination of this suit and/or further orders of court.

6.  The cost of this application be provided for.

2.  The grounds under which the said application was premised were generally that:-

a. The Plaintiff is the beneficial owner of truck trailer Registration NoKBT 937J/ZD 0246 (hereinafter the said motor vehicle) purchased through Hire purchase in the name of the 1st Respondent Company

b. On 5th May 2016 the 1st Respondent with the aid of Police Officers acting on the instructions of the 2nd Respondent herein, wrongfully and without lawful cause impounded the said motor vehicle, detained the same at Kitengela Police Station and have subsequently without the knowledge and consent of the Applicant had the same released to the 1st Respondent to the Applicant’s detriment.

c. The Applicant’s request for return and restoration of possession of the said truck trailer has been unsuccessful and the Respondents persist in their refusal and hence the urgent need for this Application.

d. Unless this matter is heard urgently and orders issued, the 1st Respondent is likely to dispose of the said motor vehicle and/or act in a manner that is most prejudicial and in breach of the Applicant’s beneficial ownership.

e. The Applicant stand to suffer irreparable loss and damage were the Respondents to proceed to dispose of and/or deal with the said motor vehicle in a manner that would affect its ownership and thereby prejudice the Applicant’s beneficial ownership therein.

AFFIDAVIT EVIDENCE.

3. In support of its Notice of Motion application, the Plaintiff relied on his Affidavit that was sworn on 15th June, 2016 and attached to the initial Notice of Motion application dated 13th June 2016 filed on 14th June 2016. He reiterated the grounds on the face of the application and explained that herein Nguvu Construction and Mining Limited and he attached a copy of CR12 marked exhibit “CMM-1’’

4. He further stated that in the year 2012 he discussed and agreed with his co-directors on behalf of the company that he be allowed to purchase a truck trailer on hire purchase through the company and thereafter have the same transferred to him.

5. He went on to aver that his co-directors agreed on behalf of the company consequent upon which he sourced for a truck trailer, KBT 937 J (herein after the motor vehicle) at the price of Kenya Shillings, Ten Million, Six Hundred and Fifteen Thousand, Nine Hundred and Sixty (Kshs 10,615,960/-).He went on to attach a copy of the profoma invoice dated 16th July, 2012 marked exhibit“CMM-2’’.

6. He stated that he consequently approached NIC Bank on behalf of the company who agreed to finance the motor vehicle and issued an offer letter. He attached a copy of the letter dated 31st July, 2012 marked as exhibit “CMM-3’’.

7. He averred that according to his agreement with the 1st Defendant company he made some payments towards deposit for the purchase of the said motor vehicle and thereafter continued to pay for the said motor vehicle while the company also made some deposits towards the hire purchase of the said motor vehicle which sums were to be recovered from his account. He annexed copies of payment receipts, copies of cheques and his bank statement reflecting various payments marked as exhibit “CMM-4’’

8. He went on to state that upon payment of the said deposits, on 22nd October,2012 he received a release letter from NIC Bank as well as from Transport and Lifting Services Ltd, whereupon he took immediate and exclusive possession of the said motor vehicle. He annexed a copy of a release letter dated 22nd October, 2012 marked exhibit “CMM-5’’

9. Having assumed possession of the said motor vehicle he retained and used the same as the owner while making the monthly instalment payments until on or about December 2015. He attached his drivers affidavit marked exhibit “CMM-6’’

10. The deponent further went on to state that he went ahead and insured the vehicle with the knowledge of the 1st Defendant. He annexed true copies of the Insurance documents marked as exhibit“CMM-7’’

11. The Applicant went on to say that in the course of their dealings between him and the 1st defendant/respondent it was agreed between them and indeed the 1st defendant accepted and complied by allowing the motor vehicle provide transport services to the company and thereafter reconcile the figures monthly by deducting expenses, the monthly loan amount and the balance thereof being given to him.  He attached copies of payments and deductions for services rendered and loan deduction payments marked as exhibit“CMM-8’’.

12. He further averred that in or about December 2015, there emerged differences between him and his co-directors who are husband and wife. He went on to say that other than the 1st Defendant Company herein he is a business associate with his co-director Christopher Wanyoike Ndungu in another company by the name Seike Industrial Limited and each of them owns 50percent shareholding and are both directors.

13. He went on to indicate that whereas they were unable to sort out directorship and shareholding in the companies they scheduled a meeting for 24th December 2015 and they resolved and agreed on the final payments and release of the motor vehicle to him as follows;

i. Upon reconciliation of accounts, the total outstanding loan repayment due and owing from him to NIC Bank  was Kenya Shillings Two Million, Two Hundred Thousand (Kshs.2,200,000/=)

ii. The said sum of Kenya Shillings Two Million , Two Hundred Thousand (Kshs 2,200,000/=) was to be paid forthwith by the 1st Defendant to NIC Bank on his account from the money the 1st Defendant/Respondent owed him which was in excess of the said figure.

iii. The 1st Defendant/Respondent should pay him the owing sums in excess of the said sum of Kenya Shillings Two Million, Two Hundred Thousand (Kshs 2,200,000/=) within 30 days thereof.

iv. The 1st Defendant/Respondent should discharge the said motor vehicle and transfer the logbooks to him within a reasonable time of discharge thereof.

14. The deponent went on to state that Mr Christopher Wanyoike Ndungu on behalf of the company made part payment of the sums over and above Kenya Shillings Two Million Two Hundred Thousand ( Kshs 2,200,00/=) through Mpesa amounting to Kshs 84,000/=.To his surprise pending the clearance of the issue on the motor vehicle,Mr Christopher Wanyoike through the 1st Defendant moved to court in Machakos HCC No.6 of 2016 and applied for release of machinery they had taken to Lukenya under Seike Industrials Limited. Upon discovering Mr Christopher’s attempts to defraud him, he moved to court and swore an affidavit for joinder in the matter. The court reversed an order the first defendant had obtained. The 1st defendant intends to appeal against the decision. He attached annexure “CMM-9’’ a copy of the Ruling.

15. The Plaintiff went on to indicate that ever since the Machakos HCC No 6 of 2016, the 1st Defendant took no steps to complete the agreement and he made two attempts to impound the motor vehicle herein alleging that the Plaintiff had stolen it ;

a. On 26th April 2016 ,the 1st defendant with the aid of Police Officers at Athi River county ,wrongfully and without lawful cause detained the said motor vehicle for a period of one week thereby dispossessing him the same and denying him the user thereof.

b. On 5th May,2016 when Police Officers acting under the instructions of the 2nd defendant intercepted the said motor vehicle at Athi River, Machakos County and detained the same at Kitengela Police Station County on allegations that the said motor vehicle had been stolen.

16. The deponent averred that despite him presenting himself at the police station no complaint had been lodged for the alleged theft and despite him having the ignition keys, the vehicle had been released to the 1st Defendant by the 2nd defendant .He also wrote a letter to the 2nd defendant but he had not received any response. He annexed a copy done to the 2nd defendant dated 13/05/16 marked “CMM-10’’He also through his advocate did a letter marked as exhibit “CMM-11’’ to Independent Policing and Oversight Authority.

17. The deponent went on to aver that he had learnt that the 1st Defendant intends to dispose of the motor vehicle to act as a punishment because of their differences between them. He urged court to intervene and issue orders restraining the 1st defendant as prayed and subsequently an order for restoration of possession of the said motor vehicle to himself.

18. Finally he stated that he swore the affidavit in support of the notice of motion and what was deposed therein was true to best of his knowledge.

SUBMISSIONS BY THE 1st RESPONDENT.

19. The Parties were directed to canvass the application by way of written submissions. The Applicant did not file submissions neither did he put in a further affidavit. Both the 2nd and 3rd Respondents did not file submissions too.

20. The 1st Respondent in his written submissions dated 14th July 2016 and filed the same day opposed the application wholly and indicated that they shall rely on their Replying affidavit dated 17th June,2016 and filed on 20th June 2016 sworn by the Managing Director of the 1st Respondent.

21. The Managing director deponed that in 2012 the shareholders of the 1st Defendant made a decision to purchase a truck/trailer that was used by the Company for running transport business.

22. He went on to say that they made an application to NIC Bank Limited for a Hire Purchase Finance facility for purposes of purchasing the truck/trailer. This was approved a letter of offer issued to the 1st Defendant on 31st July, 2012. A down payment of Kshs 40,000/= was made by the 1st Defendant towards the purchase price of the truck.

23. He went on to say that the financing bank issued a release letter to the seller company on 22nd October, 2012 which was presented to the company and the deponent collected the truck KBT 937 J together with the relevant documents on the same day.

24. Finally the deponent stated that upon formalizing the Hire Purchase Agreement with NIC Bank Limited the 1st Defendant made arrangement with the consolidated Bank limited through account Number 100086289 for standing order towards clearing the bank facility with NIC bank Limited. Subsequently the motor vehicle was registered in the joint names of 1st Defendant and NIC Bank.

25. Counsel for the 1st Respondent went on to submit that the suit motor vehicle having been under financing was jointly owned by the 1st Defendant and NIC Bank, which has lien over the subject motor vehicle thus the same cannot be sold or transferred.

26. He stated that the issue for determination is whether on the facts and circumstances of this case the applicant is entitled to orders of injunction as sought. He went on to rely on the locus classicus case on injunctions Giella Versus Cassman Brown & Co. Limited (1973) EA 358,which laid out the principles for an injunction as;

1. A party must show a prima facie case with a probability of success

2. A party must show that he might suffer irreparable injury which cannot be compensated by damages if the injunction is not granted.

3. When the court is in doubt it will decide on a balance of probabilities.

He further went on to rely onKibutiri V Kenya Shell Nairobi High Court Civil Number 3398 of 1980 (1981)KLR 390 and  Mrao Limited Vs First American Bank Limited & 2 Others (2003) KLR 125and they submitted that the applicant had not met the threshold of a prima facie case with any probability of success. The applicant had not proved that he was the beneficial owner of the Motor Vehicle in question.

27. The affidavit sworn by the applicant (driver) cannot be proof of beneficial ownership and that there is no proof of any company board resolution appointing him the beneficial owner. Evidence shows that the ownership of the motor vehicle was jointly by the 1st Defendant and the NIC Bank Limited.

28. He went on to say that the applicant had nil shares therefore no voting rights in the company and hence he could not make any decision on behalf of the company. He was only allowed to operate the vehicle for purposes of the Company’s work.

29. On the issue of whether the applicant can be adequately compensated by damages they submitted that, the applicant stood to suffer no loss since the motor vehicle can be compensated in terms of money. They relied on the case of Samuel Benjamin Obura Vs. Kenya Commercial Bank Ltd Kisumu High Court Civil Case number 91 of 2003 LLR 7366 (HCK) where Tanui J held stated that ;

“Where the suit property has a value, it cannot be said that there will be an irreparable loss suffered by the Plaintiff’’

30. On the issue of balance of convenience the 1st respondent prayed to court to maintain the status quo until the main suit is heard .He cited various authorities on granting of an interlocutory injunction; American Cyanamid Vs Ethicon (1975) 1ALL ER 508 ; Kenya Breweries Limited Vs Washington Okeyo (2002)IEA 109 where it was held that a mandatory injunction ought not to be granted in an interlocutory application in the absence of special circumstances.

31. In conclusion he cited Kenya Commercial Finance Company Limited Vs.Afraha Education Society & 4 others Civil Appeal Number 142 of 1999 (2001) 1 EA 86where Gicheru,Lakha and Keiuwa  JJA held that;

“A party with no registered interest in the suit parcel of land cannot be said to have a prima facie case with probability of success for purpose of granting an injunction.’’

He went on to submit that the applicant has no interest in the motor vehicle since the evidence on record clearly indicates that the vehicle is registered jointly in the name of the 1st respondent and NIC Bank.

He stated that the application was frivolous and a total abuse of court process and the same ought to be dismissed with costs to the respondents.

CONCLUSION

32. I have considered the application and the submissions tendered herein. The issues that fall for determination are:

a. Whether the applicant has a prima facie case with a chance of success?

b. Whether the applicant was likely to suffer irreparable injury which could not be compensated by damages?

c. Whether the court is in doubt to decide on a balance of probabilities?

On the first issue of a prima facie it is imperative to first establish what a prima facie case is, I will rely  on the case of Mrao Ltd Vs First American Bank of Kenya Ltd & 2 others (2003) IKLR 125 at page 137,where the court defined prima facie case in civil cases to be:-

“...... a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

Looking at the evidence presented before me the applicant contends that he purchased the motor vehicle in the name of the first respondent but yet we find that the same vehicle was later registered in the name of the First respondent and the financier. This raises the question on what interest therefore does the applicant have in the suit property. Save for the affidavit evidence the applicant did not go ahead to file submissions or  further affidavit to give evidence that he was indeed the beneficial owner of the motor vehicle.

On the face of it he has no right to bring this suit; no evidence has been presented to prove that indeed he owned the Motor vehicle. There is therefore no proof that a right of the applicant has been breached by the respondent. It is important to note that it is trite that the person in whose name a vehicle is registered shall unless the contrary is proved, be deemed to be the owner of the vehicle; Nancy Ayemba Ngaira v. Abdi Ali (2010) eKLR, It is therefore my finding that there is no prima facie case to warrant the granting of an injunction.

33. Having so found, the next question is whether the applicant was likely to suffer irreparable injury that cannot be compensated by damages. The second test for determination is whether the applicant will suffer irreparable loss. Placing reliance on the following paragraph in Halsbury’s Laws of EnglandThird Edition, Volume 21, paragraph 739, at page 352. It reads as follows:

“It is the very first principle of injunction law that prima facie the court will not grant an injunction to restrain an actionable wrong for which damages are the proper remedy. Where the court interferes by way of an injunction to prevent an injury in respect of which there is a legal remedy, it does so upon two distinct grounds first, that the injury is irreparable and second, that it is continuous. By the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired and the fact that the plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages. Even where the injury is capable of compensation in damages an injunction may be granted, if the act in respect of which relief is sought is likely to destroy the subject matter in question”

34. In order to show irreparable harm, the moving party must demonstrate that it is a harm that cannot be quantified in monetary terms or which cannot be cured. This was the position in Macdonald Vs Canada (Attorney General) (1994)1S.C.R 311.

35. But what exactly is "irreparable harm". "Irreparable harm has not been given a definition of universal application: its meaning takes shape in the context of each particular case."

The Applicant herein is not likely to suffer any irreparable harm because in the first place he has not proved any beneficial interest in the Suit motor vehicle.  The suit motor vehicle has value and could be easily quantified for purposes of compensation if need be.

36. In conclusion on the third and final issue as for the balance of convenience, the court ought to makes a determination as to which party will suffer the greater harm with the outcome of the motion. If applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance on convenience lies. This was the position in Mbuthia Vs. Jimba Credit Corporation Limited (1988) KLR 1. Considering the facts of this case in totality, I find that the balance of convenience demands that the status quo be retained. Since the applicant has not satisfied the tests for granting the injunction sought as laid down in the above cited authorities, the balance of convenience tilts in favour of the 1st Respondent who is currently in possession of the vehicle.

37. I therefore find that the application has no merit and it is thereby dismissed with costs to the respondents.

It is so ordered.

Dated, Signed and delivered at MACHAKOS this 6TH day of OCTOBER, 2017.

D.K. KEMEI

JUDGE

In the presence of:

Nyangena for the Applicant

No appearance for Nyakiangana for the 1stRespondent

No appearance for the 2ndRespondent

No appearance for the 3rdRespondent

C/A: Kituva