HKM v DKO & DOO [2019] KEHC 11442 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

APPELLATE SIDE

(Coram: Odunga, J)

CIVIL APPEAL NO. 71 OF 2018

HKM...........................................................................APPELLANT

AND

DKO..................................................................1ST RESPONDENT

DOO.................................................................2ND RESPONDENT

(Being an appeal from the ruling of Hon. D. Orimba, Senior Principal Magistrate, Kangundo delivered on 30th May, 2018 in Kangundo SPMCC No. 64 of 2018)

BETWEEN

DKO.......................................................................1ST PLAINTIFF

DOO......................................................................2ND PLAINTIFF

AND

HKM.........................................................................DEFENDANT

JUDGEMENT

1. The genesis of this appeal was a plaint filed by the Respondents herein in Kangundo SPMCC No. 64 of 2018against the appellant. In the said suit the Respondents, who averred that they were residents of Scotland, United Kingdom, claimed that they were the owners of a farm house situated at Koma Rock near Tala while the Appellant had been their farm manager since 2012.

2. According to the plaintiffs in 2012 when one of their workers wanted to leave, they started scouting for a replacement and through one Agnes were introduced to some two ladies whom the plaintiffs found unsuitable. Accordingly, the said Agnes introduced them to her daughter, the Appellant herein, who agreed to maintain and take care of the Respondents’’ homestead on condition that the Respondents paid school fees and household related expenditures for the Appellant’s two boys, a condition which the Respondents acceded to. Accordingly, on 21st June, 2012 the Respondents took the Appellant and her children in and immediately enrolled the children in school and went back to Scotland.

3. It was contended that on 1st February, 2018, when the Respondents returned, they found the home in a deplorable condition and their animals missing with the Appellant having shifted into their main house and taken over their bedroom. They also found the Appellant with a one-year-old child who she sired in the homestead without informing them. Upon being confronted, the Appellant was rude and arrogant and started defying their instructions. As a result, the Respondents on 27th January, 2018 asked her to leave but the Appellant declined to do so threatening to kill herself if they insisted. It was averred that despite reporting the matter both to the provincial administration and the police no action was taken

4. According to the Respondents since 2012 they have paid the defendant’s children’s school fees with the first born, aged 23 years while the second one being in Form 4. The Respondents, an elderly couple, were therefore apprehensive that the Appellant’s intentions were maliciously geared towards taking their property since they have no children of their own. They accordingly sought orders of permanent injunction compelling the Appellant together with her children to vacate their homestead and the costs of the suit.

5. Together with the plaint the Respondents filed a Notice of Motion dated 3rd April, 2018 seeking that the defendant together with her children be compelled to vacate the said premises pending the hearing of the application and the suit; that the Appellant be restrained from trespassing on the said premises and that the OCS, Matungulu Sub-county be directed to verse the implementation of the said orders. The application was based on the same facts as those in the plaint.

6. In response to the said application, the Appellant averred that she has been living at the Respondents’ said premises as a wife married under the Kamba Customary Law and not as a worker. While admitting that she threated to kill herself, she contended that the said threats were made in a fit of rage and desperation since the Respondents’ homestead had been her home for the last five years and she had no alternative home to move to. It was her evidence that the Respondents have always taken care of the emotional and financial needs of her children who have grown fond of the Respondents for the said period. It was her evidence that both the local police officer and the area chief are aware that she and the 1st Respondent are married under Kamba Customary Law and that the children sired by her from her first marriage are adopted by the Respondents.

7. The Appellant maintained that the homestead has always been maintained and the farmhouse managed appropriately by ensuring that all work is done and an update regularly given to the Respondents.

8. According to the Appellant, in the year 2012 the 1st Respondent approached her mother (AM) and asked for recommendations of a young woman with children who would be living in her homestead as a wife and children brought thereon who would be her own children. Accordingly, the Respondents constructed a small guest house for her while managing the farm-house and taking care of the children where she had lived for 5 years. According to her, in the year 2014, the Respondents changed the maiden name to her name in the Birth Certificates of the two children and upon one of the children attaining the age of majority the 1st Respondent insisted that his name be changed to reflect that of the 1st plaintiff as the mother and in 2016 swore an affidavit that one of the sons, BM, is her son.

9. According to the Appellant, she has been living in the homestead as a wife and not as a worker and has never been treated as a worker till 1st February, 2018 when upon the return of the Respondents the Appellant saw a change in their attitude towards her. It was her evidence that the Respondents themselves asked her to sire a child to be named after the 1st Respondent as a sign of the seriousness on the part of the Appellant as a wife. Since she was married under Kamba customary law, the Appellant insisted that any divorce can only be through the same law. It was her evidence that she declined to vacate the suit premises as there was no arrangement as to how the Respondents would compensate her for the years she lived in the Respondents’ homestead as a wife and turning down opportunities of being married.

10. After hearing the said application, the learned trial magistrate while relying on the principles under the Giella vs. Cassman Brown Case granted the application.

Determination

11. I have considered the submissions made by the respective parties in this appeal. This being an interlocutory appeal, care must be taken to obviate expressing a conclusive view of the matter as the respondent’s suit is still pending before the Magistrate’s Court. The practice is and has always been that at interlocutory stage the court may only express its views in the matters in controversy on a prima facie basis. Otherwise a concluded view is likely to tie the hands of the Magistrate who would eventually hear the case, and is likely to embarrass him. See Mansur Said & Others vs. Najma Surur Rizik Surur Civil Appeal No. 186 of 2005 and Niazons (K) Limited vs. China Road & Bridge Corporation (Kenya) Civil Appeal No. 157 of 2000 [2001] KLR 12; [2001] 2 EA 502.

12. Therefore, although the parties have raised issues whose determination may well go to the merits of the pending suit, I will refrain from determining the same. In my view the only issue for determination before me is whether the injunction granted by the learned trial magistrate ought to have been granted in the circumstances of the case.

13. It is clear in this appeal that what the Respondents sought and the orders that were granted by the learned trial magistrate at an interlocutory stage were in the nature of mandatory injunction since they were compelling the Appellant to vacate the suit property. It is now trite that the court can only grant a mandatory injunction under the provisions of section 3A of the Civil Procedure Act and not under Order 40 of the Civil Procedure Rules. See Belle Maison Ltd. vs. Yaya Towers Ltd. Nairobi HCCC No. 2225 of 1992.

14. In the case of Kenya Breweries Limited & Another vs. Washingtone O. Okeyo Civil Appeal No. 332 of 2000 [2002] 1 EA 109the Court of Appeal stated as follows:

“A mandatory injunction can be granted on an interlocutory application as well as at the hearing but in the absence of special circumstances, it will not normally be granted. However if the case is clear and one which the Court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff, a mandatory injunction will be granted on an interlocutory application…A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the Court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory injunction the Court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.”

15. In fact, Dickson Mwangi vs. Braeburn Limited T/A Braeside School Civil Appeal No. 12 of 2004 [2004] 2 EA 196 in it was held by the Court of Appeal that interlocutory mandatory injunctions should only be granted with reluctance and only in very special circumstances. In Gusii Mwalimu Investment Company Ltd. & 2 Others vs. Mwalimu Hotel Kisii Ltd. Civil Appeal No. 160 of 1995 [1995-1998] 2 EA 100 the same Court (Lakha, JA) held that:

“Whereas the court does have jurisdiction to grant mandatory a injunction even on an interlocutory application, the granting of a mandatory injunction on interlocutory relief is a very exceptional form of relief to grant. A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff a mandatory injunction will be granted on an interlocutory application. On motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the court must inter alia feel a high degree of assurance that the injunction was rightly granted; and this is a higher standard than is required for a prohibitory injunction. Each case must depend on its own facts.”

16.  In the locus classicus case of Kamau Mucuha vs. The Ripples Ltd. Civil Application No. Nai. 186 of 1992 [1990-1994] EA 388; [1993] KLR 35 the Court of Appeal expressed itself as hereunder:

“Whereas a prohibitory injunction requires abstention from acting, a mandatory injunction requires the taking of positive steps, and may require the dismantling or destruction of something already erected, or constructed. This will result in a consequent waste of time, money and materials if it is ultimately established that the defendant was entitled to retain the erection…Historically, the principles laid down with regard to temporary mandatory injunctions are that they will only be granted in exceptional and clearest cases. The grant of a mandatory injunction on interlocutory relief is a very exceptional form of relief to grant, but it can be granted. If a mandatory injunction is granted on motion, there will normally be no question of granting a further mandatory injunction at the trial; what is done is done and the plaintiff has, on motion, obtained once and for all the demolition or destruction that he seeks. Where an injunction is prohibitory, however, there will often still be a question at the trial whether the injunction should be dissolved or contained…A court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the Court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted and that is a higher standard than is required for prohibitory injunction.”

17. In this case the learned trial magistrate’s decision was based purely on the principles enunciated in the Giella vs. Cassman Brown Case. Those are principles that deal with prohibitory injunctions. Apart from those principles, the court was expected to go further and inquire as to whether there existed special circumstances, and further in addition to be satisfied that this was a clear case in which either the matter ought to have been decided at once or that the injunction was directed at a simple and summary act which could be easily remedied or that the defendant had attempted to steal a march on the plaintiff. There was no indication that the court felt a high degree of assurance that at the trial it would appear that the injunction had rightly been granted. Clearly, therefore the test in mandatory injunctions is a different and higher standard than that required for a prohibitory injunction.

18. In this case it is clear that the court adopted a lower threshold than the one required in mandatory injunctions. That was clearly a misdirection on the part of the learned trial magistrate. I have considered the grounds and the facts upon which the said application was based and it is clear to me that they do not bring the application within the parameters of mandatory injunction. The appellant went into occupation of the suit premises as an invitee of the Respondents. There is evidence that her children adopted the 1st respondent’s name. There is an affidavit that purports to support the change of names allegedly sworn by the 1st Respondent. There is no allegation that the Appellant was stealing a match against the Respondents. The matter was not one that could be said to be one that deserved summary determination or one where it can be said that at the end of the matter the court would be satisfied that the injunction was rightly granted.

19. In the premises, I find merit in this appeal which I hereby allow. The decision of the learned trial magistrate made on 30th May, 2018 in Kangundo SPMCC No. 64 of 2018 allowing the application dated 30th April, 2018 is hereby set aside and substituted with an order dismissing the said application with costs.

20. As regards the costs of this appeal, the record of appeal was purely prepared since no proceedings and pleadings were incorporated in the record. Similarly, none of the parties complied with the directions of this court to furnish the soft copies of their submissions. Section 1A(3) of the Civil Procedure Act provides as hereunder:

A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.

21. One of the overriding objectives of the Civil Procedure Act is the facilitation of expeditious resolution of the civil disputes governed by the Act. The direction that Advocates and parties do furnish the Court with soft copies of their pleadings and submissions is geared towards that same objective and where they fail to comply therewith, it amounts to a failure to comply with a statutory mandate which may call for a penalty in costs or deprivation of costs even where the same would have been granted. Accordingly, there will be no order as to the costs of this appeal.

22. I direct that the suit be heard on its merit before any other magistrate with jurisdiction to hear the matter other than Hon. D. Orimba.

23.  It is so ordered.

Read, signed and delivered in open Court at Machakos this 27th day of June, 2019.

G V ODUNGA

JUDGE

Delivered in the presence of:

Miss Muvindye for the Appellant

Mr Musya for Mr Onduso for the Respondent

CA Geoffrey