Joseph Gichuki Mugo & Mbugua Ngang’a v Fuji Motors E.A. Limited, Mohamed Gani, Ghalib Kara, Samia Kaur & Don Colyn [2014] KECA 449 (KLR)

INTHE COURT  OF APPEAL

IN NAIROBI

CORAM: MURGOR J.A. (IN CHAMBERS)

CIVIL APPLICATION NO. 124 OF 2014 (UR.102/2014)

BETWEEN

JOSEPH GICHUKIMUGO…...................................................1STAPPLICANT

JOHN MBUGUA NGANG’A………..............…………………2NDAPPLICANT

AND

FUJI MOTORS E.A.LIMITED…….....................................1STRESPONDENT

MOHAMEDGANI………………………...….…........…….2NDRESPONDENT

GHALIBKARA…………………………….….......….……3RDRESPONDENT

SAMIAKAUR…………………………….…....…………..4TH  RESPONDENT

DON  COLYN……………………………..…….…………5THRESPONDENT

(Being an application for an injunction pending  the hearing  and

determination of the  intended appeal  from  the  entire  ruling  of

the High Court Milimani Law Courts Commercial & Admiralty

Division  of Kamau, J delivered on 23rd   January 2014

in

Industrial Court Cause No. 1049 of 2011)

***************

R U L I N G

On  the 3rd    June  2014, I  declined to certify  this matter as urgent for reasons that  no  urgent  circumstances had  arisen to warrant the issuance of a certificate of urgency.

The  matter before me  relates to  a  ruling delivered on  21st May  2014, where the  High  Court  (Kamau, J)  declined to  order an injunction to restrain the respondents from disposing, alienating, impounding,  seizing,  repossessing, soliciting  or  advertising  for sale or dealing with motor vehicles registration numbers KBQ 473 X  and   KBT  931   P  (the  Motor  Vehicles) from  breaching  or terminating the motor vehicle sale agreement entered into  with the applicants.

The  applicants being aggrieved with the  ruling of the  High Court  filed  a Notice of Appeal on 22nd  May  2014, and  a Notice of Motion on 6th June 2014  together with a supporting affidavit sworn by  JosephGichuki Mugoand  JohnMbugua Nganga, seeking an  injunction restraining the  respondents from disposing, alienating, impounding, seizing, repossessing, soliciting or advertising  for  sale or dealing  with  the   Motor  Vehicles  from breaching or terminating  the motor  vehicle  sale agreement entered into  with the applicants, and  a temporary injunction restraining the  respondents by themselves or their agents and the DCIO Thika, Mr. Okoth, Deputy DCIO Starehe and  DCIO Mombasa, from impounding, seizing, repossessing, detaining arresting or  in any   way   interfering  with  the applicants  possession,  user , enjoyment  with  the said   motor  vehicles  pending  the  appeal. Attached to  the  Notice of Motion was  a  Certificate of Urgency dated 6th  June 2014  together with a supporting affidavit sworn byAlex   Mbue Ndegwa. It  is  this Certificate  of  Urgency  that  I declined to certify as urgent.

In the urgency certificate the applicant contended that they had  sought injunctive  orders which were   declined by  the High Court  in  a  ruling of 21st  May 2014, and  that temporary orders were  extended for a period of 14  days  pending the  filing of the application herein. The  applicants are  apprehensive that the 1st, 3rd   and  4th  respondents will  move to impound, repossess or in any manner deal  with or  remove the  suit motor vehicles out of the reach  of the  court to the prejudice of the  applicants or render the suit tin the  intended appeal nugatory.

When  the application was referred back  to me under rule  55of this  Court’s rules  for hearing inter partes, Mr. Ndegwalearned counsel  for the  applicants explained  that the 2nd and 5th respondents  were not a  parties to  the  application in  the High Court and as such,  this urgency application could  proceed without appearance from them. Counsel  also  did  not have  any  objection to appearing before me,  given that Mr. Abwuorlearned counsel for the 1st, 3rd and 4th respondents had  previously been  employed in  the same firm of  advocates. With respect  to  the  Notice of

Motion dated 16th  June  2014, counsel submitted that the reason for the  urgency was  that the  applicants had  purchased the Motor Vehicles,  from the respondents for which they had  paid substantial amounts, and  carried out significant improvements on them. They  sought injunctive orders from the High Court  after they were  requested to  submit the  Motor  Vehicles to the DCIO Thika. They  were  granted an exparte temporary injunction ny the High  Court  prior to the  ruling, which orders were  extended for a further 14  days  after delivery of the ruling to  enable them seek injunctive relief from this  Court.

Mr  Abwuoropposed the  application, for reasons that  the applicants suit was  incompetent, as  the  2nd and  5th  respondents who the  applicants  had  transacted  with  regarding  the   Motor Vehicles were  not before the Court, as they could  not be  traced. Counsel  explained that the  1st  respondent is a limited liability in the business of selling motor  vehicles. The  Motor   Vehicles, the subject of this  application, were  stolen from the 1st  respondent’s yard in Thika. The  theft was  reported to  the CID  and  DCIO  in Mombasa and Thika,  who  requested the applicants to record statements regarding the  missing Motor  Vehicles. The  applicants refused and instead sought injunctive orders to restrain the  police from conducting investigations. Counsel  submitted that there was no  material before the  Court  to demonstrate that the  hearing of the application was urgent, and  that all the applicants were  being required to do was  to assist  the police with the investigations regarding the  Motor Vehicles.

Having  considered  the   pleadings  and   the  submissions of parties, I am unable to ascertain the nature of the  urgency in this application. The applicants say that their apprehension is that the Motor  Vehicles that they purchased from the respondents will be impounded by the police, while  the according to the 1st, 3rd   and 4th respondents, they reported to the police that the  Motor  Vehicles had  been stolen, and  that the police  had  only  requested  the applicants to record statements in  respect of the  missing Motor vehicles to assist with investigations.

I am  unable to establish what has  given rise  to the  urgency in  these  circumstances that  would occasion the need for  this Motion to bypass the other pending Motions for stay  of execution or  for  injunctive  relief  before  this  Court. The  applicants  only reason for urgency is that the  injunctive relief in the High  Court is due  to lapse  if it has not already done  so, which in my  view  is not sufficient  reason  to warrant  the  issuance  of  a Certificate  of Urgency. The applicants have   also  not shown   what steps have since  been  taken by the  1st 3rd   and 4th respondents that would give rise  to the  apprehension that impounding of the  Motor  Vehicles is imminent.

For these  reasons, I decline to alter my  decision made  on 3 rd June  2014. The  costs  of this application for urgency to be  in  the main  application.

DATED and DELIVERED  at  NAIROBI this 18thday ofJULY, 2014.

A.K.MURGOR

…………………………..

JUDGE OF APPEAL

I certify that this is a true copy  of the original.

DEPUTY REGISTRAR