Joseph Kithokoi Mutia v Kenya Power & Lighting Company Limited [2016] KEHC 5349 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  202 OF 2015

JOSEPH KITHOKOI MUTIA ……….……………….APPLICANT/PLAINTIFF

VERSUS

KENYA POWER & LIGHTING

COMPANY LIMITED ………………...…………..RESPONDENT/DEFENDANT

RULING

1. By an  application dated  29th  September  2015  supported by the  applicant/plaintiff’s affidavit  sworn on  the same date by Kithokoi Mutia, the applicant seeks from this court  that by way of a mandatory injunction  the respondent Kenya Power & Lighting, by itself, its servants, agents and or employees be and is hereby directed  to install, supply and or provide electricity  to the plaintiff at his farm house  on plot No. 506 KITOO-KASUNGUNI SUB LOCATION, MUTITO LOCATION, Mutito Division, Mutito Sub County, Kitui County pending  the hearing and determination of this suit, and that costs of this application be provided for. The application  is premised on the grounds that :

In the year 2012 the plaintiff   and the defendant entered into a contract   wherein the defendant was  to supply electricity to the plaintiff  at his farm house aforesaid; Through its letter to the plaintiff the defendant assigned him application NO.  25802050672 dated 24th May 2012 and this became the contract between the parties.

That on 7th December 2012 pursuant to the contract aforesaid the plaintiff paid to the defendant the requisite full consideration.

That in flagrant breach of the contract aforesaid the defendant has failed refused and/or neglected to supply the electricity as agreed.

That the defendant has arrogantly refused to respond to any queries or correspondence from the plaintiff regarding the supply of the said electricity.

That the defendant is in abuse of its monopoly status.

That the defendant’s conduct is arbitrary, oppressive, wrongful, and unlawful and contrary to the principles of fair play, constitutional economic and social rights, the rules of commercial integrity, discipline and corporate governance and the consumer protection Act.

2. In the supporting affidavit  sworn by the applicant on 29th September  2015, the applicant  reiterates  the grounds  and annexes receipt for  payment, letters dated 7th December  2012, letter by  his advocate to the defendant dated September, 2012 and deposes that he urgently  needs electricity  to his premises  and that the defendant has acted is a discriminatory manner by supplying electricity to his  neighbors whilst  deliberately omitting  to supply him for no reason and  which exposes  the applicant  and family to  attacks by wild animals hence he stands to suffer  irreparably and  that the suit  herein shall be  rendered nugatory.

3. The application herein was opposed by the respondent Kenya Power  & Lightning  Company Limited (KPLC) through its advocates Professor Albert Mumma & Company Advocates   the respondent/defendant who filed  grounds of opposition  dated November  2015  on 12th November 2015  contending that:

The orders sought in the  application are the same  as the  orders that have been  sought in the  plaintiff’s plaint and if granted  would  have the effect  of dispensing with  the main suit without hearing  accorded to the  defendant/respondent.

That the defendant/respondent has raised triable issues in its defence which require a hearing on the merits and the production of documents and calling for witnesses.

That the said notice of motion application is misconceived, bad in law and therefore suitable for being struck out.

That it is only just that this Honourable court dismisses the plaintiff/applicant’s notice of motion application dated  29th September, 2015 with costs to the defendant/ respondent.

4. The application  was orally argued  before me on 18th February  2016  with Mr Nzamba Kitonga, Senior Counsel  submitting  on behalf of the  plaintiff/applicant whereas  Mr Obok submitted on behalf of the  defendant/respondent.

5. According to Senior Counsel Mr Nzamba  Kitonga, relying on  the grounds and supporting  affidavit and annextures of the  applicant, the parties  hereto entered  into a contract  of supply of  electricity to the applicant’s  premises by  the defendant/respondent monopoly.  The defendant  issued  an advise letter to the  plaintiff on how much money  was required to be paid before the installation which the applicant  paid in 2012  but that despite  reminders to the respondent to install electricity to the applicant’s  premises, the respondent  has arrogantly refused to respond  or give reasons for the  delay or failure to supply/install electricity  thereby compelling the  applicant to  institute  this suit and  hence the application  herein.

6. In the applicant’s view, this is  a clear case of gross impunity and  abuse of monopoly status, and that  the defendant feels  like it  has  no responsibility   towards  anyone  since people/consumers have  no alternative  source of electricity.  The plaintiff contends that it is a violation of his economic and social rights under Article 34 of the Constitution and the Consumer Protection Act.

7. Senior Counsel  further submitted that his client  had fulfilled  the conditions  precedent  for the  grant of a mandatory  injunction  as set out in the case of Peninah Mbithe  Mbithi V Kenya Power  & Lighting Company Limited HCC 215/2015 where  the defendant herein  had forcefully installed electricity  in  the applicant’s premises wherein the applicant/ owner had  not requested for such installation and it had failed to respond to letters of correspondence  written to it by the plaintiff.  The court granted a mandatory injunction, accusing the defendant of behaving arrogantly.  The applicant’s contends that in this  case the defendant had  refused to install power  to his premises, refused to respond to correspondence  and had not even sworn a replying affidavit   explaining  its inaction.  He relied on the Locabail International Finance Ltd Vs Agro Export & Another [1986] ALL E R 901 on the circumstances under which a mandatory injunction can be issued.  The plaintiff’s counsel also submitted that this suit has high chances of success; the defendant must be compelled to install power to forestall abuse of statutory power otherwise the court will be abetting an injustice by rewarding a party who abuses the law.  It was further submitted that the defendant had absolutely nothing to lose if it supplies   electricity since it has been paid installation charges as billed.  He prayed for orders as per his application.

8. In opposition to the applicant’s application, the respondent’s counsel submitted relying on the grounds of opposition filed in court and the case of Kenya Breweries Ltd Vs Okeyo CA 332/2000. In his view, there must be special circumstances and the case must be clear for a mandatory injunction to issue.  Further, he relied on the case of Alex Wainaina T/A  John Commercial Agencies  V Janson Mwangi Wanjihia  CA 297/2014  where the Court of Appeal held that a mandatory injunction  need not be granted  at  the interlocutory  stage except  in the clearest  of cases to remedy a simple and summary  act or  if the defendant  attempted  to steal a match on  the plaintiff; and that the  decision  to grant a mandatory  injunction sought at this interlocutory  stage  was a decision of a Judge and each  case has  to be decided on the basis of  its  own peculiar  facts  and circumstances.

9. It was submitted on behalf of the defendant/respondent that facts of this case are not clear and straight forward to dispose of the case at this stage.  That payment for electricity supply was made 7 months after the contract   whose terms have not been complied with.  That the defence   as filed denies the plaintiff/applicant’s claim and that there are no such numerous letters shown seeking reasons for non supply of the electricity.  Further, that there are no grounds to show that the defendant was acting with impunity and abusing the monopoly status that it enjoys.

10. The respondent’s counsel further submitted that the defence filed by the defendant raises triable issues and that this is not a simple case.  It was stated that once the plaintiff complies with the terms of the contract, the power will be supplied to his premises.  Counsel therefore prayed for dismissal of the application by the plaintiff/applicant and the suit is set down for hearing.

11. In a brief rejoinder Mr Nzamba Kitonga (Senior Counsel) submitted that the defendant/respondent’s counsel had urged statements of fact from the bar without the benefit of a replying affidavit for interrogation.  That without such an affidavit   no such case is made out   why the application cannot be granted as prayed. Senior Counsel Nzamba  Kitonga further  submitted that the plaint also seeks  for general damages  besides  a mandatory  injunction and that there was no explanation given by the respondent why it had supplied power to the plaintiff/applicant’s neighbors  but adamantly refused to  supply to his premises without giving any reasons for  non supply.  That there   was no response to that effect and that the contract terms had not been complied with by the plaintiff. Further, that the two decisions relied on by the respondent in any case, supported the applicant’s case and that the said authorities are anchored on the Locabail International case (supra).  The applicant’s Senior Counsel further submitted that the applicant had fulfilled the conditions for the issue of a mandatory injunction and   prayed for the orders sought with costs.

12. I have carefully considered the applicant’s application, the grounds, supporting affidavit, annextures and the grounds of opposition by the respondent. I have also considered the respective parties advocates rival submissions on the application and the authoritative decisions relied on by both learned counsels.  The law governing/relating  to granting of interlocutory mandatory injunction is now well settled, as  espoused in the provisions of Order 40  Rules 1,2  and  4 of the  Civil Procedure Rules, and as interpreted in judicial  decisions, from which, in my view, the  issues for  determination in this application are:

Whether  the applicant  is truly  entitled to  a discretionary  order of  mandatory  injunction at this interlocutory  stage   of the  proceedings; and therefore

Whether a mandatory injunction is justified in the circumstances of this case.

What orders should this court make?

Who should bear costs of the application?

13. The locus classicus case ofGiella V Cassman Brown [1973] EA 358 provides courts with the guiding principles on applications for injunctive relief. Those  principles are:

The applicant must show a prima facie with a probability of success.

An injunction  will not  normally  be granted  unless the applicant  might otherwise  suffer  irreparable  injury that cannot  be adequately  compensated  by an award of damages.

When   the court is in doubt, it will decide the application on a balance of convenience.

14. The Court of  Appeal has severally held that  in considering  the first  principle, the trial court  must avoid the temptation of  making conclusive  findings  of fact  before they are tested  in cross  examination.  However, when faced  with an application for a mandatory injunction, the principles  under which a mandatory   injunction is granted are as settled  in the case of  Locabail International  Finance Ltd V Agro-export  and Others [1986] ALL ER 901  at page 901 where  it  was stated that :

“ 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  match  on the plaintiff.”

Moreover, before  granting a mandatory interlocutory  injunction, the court  had  to feel a 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. The Court of Appeal applied this principle in the case of Kenya Breweries Ltd & another V Washington O. Okeyo CA 332/2000verbatim. In the Halsbury’s Laws of England VOL 24 paragraph 948 it is stated that:

“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 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  attempts  to steal  a match on the plaintiff, such as, where, on receipt  of notice that  an injunction  is about to be applied  for, the defendant  hurries on the work  in respect  of which complaint is made  so that  when he receives notice of an interim injunction it is completed, a mandatory injunction will be  granted on an interlocutory application.”

16. From the above authorities, it is  clear to me that the circumspection  with which the court approaches  the matter  when asked to grant  an interlocutory  mandatory injunction  is informed  by the fact that the  grant of a mandatory  injunction  amounts to determination of the  issues in dispute in a summary  manner.  In addition, the parties  are put in an awkward  situation should the court, after hearing  the suit, ultimately  decide that  there was no basis  for the  mandatory injunction  at the interlocutory stage. In Shepherd Homes Ltd V Sandahm [1971]ICH 34, Megamy J stated that:

“It is plain that in most circumstances a mandatory injunction is likely, other things being equal, to be more drastic in its effects than a prohibitory injunction.  At the trial of  the action, the court will, of course  grant such  injunctions as the justice  of  the case requires, but at the interlocutory stage, when the final result of  the  case cannot  be known and the   court has to do the best it  can, I think the case has  to be  unusually strong and clear before  a mandatory  injunction will be  granted, even if it is sought in order to enforce a  contractual  obligation.(emphasis added).

…  In a 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  at the trial it will appear that  the injunction  was rightly granted; and  this is a  higher standard than is  required for a prohibitory  injunction.”

17. In the Locabail International  Finance Ltd (supra) case, the court further restated  the same principles that:

“ The matter before the court  is not only an application for  a  mandatory injunction, but is an application  for a mandatory injunction which, if  granted, would amount to the  grant of  a major part of the  relief claimed  in the action.  Such  an application should be  approached  with caution and the relief  granted only in a clear case.”

18. The Kenya Court of Appeal has  consistently followed the principles settled in the above authorities  in many other decisions among them:  East African Five Spinners Ltd(in receivership) and2 Others V Bedi  Investments  Ltd CA Nairobi 72/94; Muchuha V Ripples  Ltd [1990-94] EA 388, Kenya Airports Authority V  Paul Njogu Muigai & 2 Others  CA No.  Nairobi 29/97, Gusii  Mwalimu Investments  Company Ltd  & others  V Mwalimu Hotel Kisii Ltd  [1995-98] 2 EA 100; Malindi Air Services  & Another V Halima Abdinoor  Hassan, CA  No. Nairobi 2002/98.

19. Among the special  circumstances  that may justify the grant of a  mandatory injunction at the  interlocutory  stage is where  the injunction involves a simple  act that  could be easily reversed  or remedied  should  the court  find otherwise  after trial; the defendant has accelerated the development    that the plaintiff seeks  to restrain, with the intention of  defeating the plaintiff’s claim or  where the defendant  is otherwise bent on stealing a match on the plaintiff.

20. On the other hand, as was held in Lucy Wangui Gachara  V Minudi Okemba Lore [2015] e KLR  by the Court of Appeal, that:

“ the court  will not grant  a mandatory injunction if the damage feared by  the plaintiff is trivial, or where the  detriment that the mandatory injunction  would inflict  is disproportionate to  the benefit it  would confer.  Further, that save in the clearest of cases, the right of parties  to a fair  and proper hearing  of their dispute, entailing  calling and cross examination  of witnesses must  not be sacrificed  or substituted by a summary hearing.”

21. There is also persuasive judicial pronouncements by Indian Courts affirming that great circumspection is called for before awarding a mandatory injunction at interlocutory stage.  In Bharat Petroleum Corp Ltd V Haro Chard Sachdeva, AIR 2003, Gupta J (Delhi HC) cited with approval in Lucy Wangui Gachara (supra) case CA 4/2015 Malindi observed d as follows:

“ While court’s power to grant temporary mandatory injunction on interlocutory application cannot be  disputed, but  such temporary mandatory  injunctions have to be  issued only in rare  cases where  there are  compelling circumstances and where the injury complained of  is immediate and pressing and is  likely to cause extreme hardship.  If a mandatory injunction has to be granted at all on interlocutory application, it is granted only to restore status quo and not to establish a new state of things.”

22. In an earlier case of Nandan Pictures Ltd V Art Pictures Ltd & others, AIR 1956 CAL 428, Chakrararhi CJ set out a rather limited scope in which a mandatory injunction is available at the mandatory stage by stating that:

“At the same time, I may point out what the accepted principles have been and what has been, according to the reported cases, the practice of the courts.  It would  appear that  if a mandatory injunction is granted at  all on an interlocutory  application, it is  granted only to  restore the status quo and not granted to establish a  new state of things, differing from  the state, which existed at the date when the suit was instituted.  The one  cases in which a mandatory injunction  is issued on an interlocutory application is where, with a notice of  the institution of the plaintiff’s suit and the prayer made in it for an  injunction to restrain the doing of  a  certain act, the defendant does that  act and thereby alters the factual basis upon which the plaintiff claimed his relief.  An injunction issues in such  a case in order  that the  defendant  cannot take  advantage  of his own act and defeat the suit by  saying that  the old cause of action no longer  survived and a new   cause of action  for a new type of suit had arisen.  When such is found   to be the position, the court grants  a mandatory  injunction even on an  interlocutory   application, directing the defendant to undo  what he has  done with notice of  the plaintiff’s  suit and the claim therein and  thereby compels him to restore  the position  which existed  at the date of  the suit.”

23. The Court of Appeal in Lucy Wangui Gachara (supra) case agreed with the above persuasive opinions. The consistent reiteration of those  principles  by the courts in an affirmative tone is that the remedy of mandatory  injunction is a drastic  one which ought not to be granted mechanically but considered   with caution ( See Alex Wainaina  T/A John Commercial Agencies V Janson  Mwangi Wanjihia [2015] e KLR  (CA)

24. The question therefore in this case, is the factual matrix of this case clear and straight forward, capable of summary disposal of the case or is there any evidence that the defendant/respondent attempted to steal a match on the applicant?   What is the status quo that this court is being asked to restore, or would the grant of the order sought establish a new state of things, differing from  the state, which existed at the date when the suit was instituted.?The answer is found in the pleadings and statement by the plaintiff to the effect that in the year 2012 the applicant applied for installation of electricity to his farm house on plot NO. 506 KITOO-KASUNGUNI sublocation, Mutito location, Mutito Division, Mutito Subcounty, Kitui County.  That  the defendant/respondent agreed  to supply the said electricity  on condition that the applicant  pays shs 34,980 being the  installation charges , and through its letter  to the applicant dated  24th May 2012,  it assigned the applicant  application  No. 25802012050671.   That the said required charges were settled on 7th December 2012 and he waited for the installation of electricity to his premises in vain. The applicant then instructed his advocates to write to the respondent and request for the installation of power as shown by the two letters.  That todate, there has been no response to the said correspondence thereby necessitating this suit.  According  to the  applicant, the respondent  conducts  itself through its  officers  in a  rough shod manner  because it  is a monopoly, which inaction  betrays a lack of commercial  integrity on its part and thereby violating its contractual obligations   while wantonly trampling upon the applicant’s constitutional social and economic rights and contrary  to the consumer protection Act.

25. The applicant avers that he urgently needs power supply as he lives in an area inhabited by wild animals   and which has a lot of thugery and other criminal activities. It is also contended that the respondent has acted in a discriminatory manner by supplying electricity to his neighbors while deliberately omitting him and without offering him any explanation, thereby subjecting him to mental agony and suffering, financial loss and inconveniences.

26. In its defence  filed  on  21st July 2015  the defendant  contends that  it has not breached the contract  and that the conditions  for  supply expressly stipulated that the  offer of supply was subject  to the defendant being able to  obtain the necessary way leaves  and easements  from various  way leaves authorities and property  owners  in order to be  able to  construct  the power lines  through  private property, public  roads and county government  property which  permissions  have not been secured  hence frustrating the defendant’s ability to provide the supply. Further, that the applicant had  not fulfilled the precondition of engaging services of  a Registered  Electrical Contractor  licensed  by the Energy Regulatory  Commission ERC to carry out internal wiring and to issue  test certificates  in respect of  internal wiring  installation, which  test certificates have not been  submitted to it as required  hence the applicant’s application is  incomplete.

27. It is further contended that the plaintiff had not complied with the express requirements of the offer of supply within the timelines   stipulated thereby effectively causing the termination of the offer of supply and therefore the contract of supply had not crystallized.

28. Further, that this court  has no jurisdiction to hear this  suit as the plaintiff had  not exhausted the complaints  and disputes resolution  mechanisms  provided in the  Energy Act  2006  for resolving  the kind of   complaint upon which this claim  is founded.

29. From the above facts of this case   which are reproduced in the application and grounds of opposition and submissions by the respective   parties’ advocates (save for the issue of jurisdiction of this court which was not submitted on), the question is, is the case herein unusually strong and clear?   In addition, is there an immediate, urgent   pressing injury that would cause the plaintiff/applicant extreme hardship if the mandatory injunction is not granted?

30. The power to grant any injunctive relief is a discretionary power.  That discretion must however be exercised judiciously and not capriciously.  As to  whether the plaintiff/applicant’s case is unusually  strong and clear, I note that the  plaintiff relied on the exhibit   KM1(a) which he asserts is a contract  for  supply of electricity to his premises  and which he avers was breached  by the respondent.  In the said  exhibit KM1(a), the respondent advised the  applicant, referring to the latter’s application  dated 18th May 2012 for supply, that the  connection charges would be shs 34,980 inclusive of costs of supply  28,000 VAT  16% and account deposit of shs  2500.  The applicant was advised to pay the amount within 90 days from 24th May 2012, and to fulfill the following conditions:

That if payment  is not received  within that period  of 90 days, the terms may  be revised; the supply would be  subject to  the respondent  being able to obtain the  necessary way leaves (ie permission to construct  power lines through private  property, public roads and local authority properties.

The  applicant’s attention  was also  drawn to important responsibilities  to  be undertaken  by him to enable the  respondent  connect the  supply and which  he was to use as a check list  namely:

a.  Engage  the services of a Registered  Electrical Contractor, who must be licenced  by the Electricity Regulatory Commission (ERC), to do the following :

b. To guide in the excavation and reinstatement of the cable trench (es) as well as the provision of suitable cable conduits or ducts where applicable.

c. To carry out the electrical wiring installation and issue commencement of work, completion of work and test certificates in respect of his internal wiring installation.

Complete and return the attached supply contract form.

Supply copy of ID and PIN certificate.

Submit  a route sketch  to his premises to facilitate  speedy processing of  his application. He was also advised   to submit  items  1(b), 2,3  and  4   at the same time.

31. Annexture exhibit KM1 (b) is evidence of payment of shs 34,980 by the applicant to the respondent vide customer   transaction voucher No.  K 562142 dated  7th December  2012  which  was  over  six months  from the date of 24th May 2012.  The applicant’s annexture KM1 II (a)  is a letter by his counsel Nzamba Kitonga to the Chief Engineer (Design and Construction).  It is  dated  23rd September 2014, complaining that the applicant had  complied with all other conditions and enclosing copies of  supporting documents  to confirm  that his client applied and  paid for  electricity   connection on 24th May 2012 but that the  respondent  had failed , refused and  or neglected to connect the electricity.

32. Annexture  exhibit  KMII (b) is another  letter dated  21st November  2014  by Mr Nzamba Kitonga  to the respondent complaining  that no response  had been received to the letter of  23rd September 2014 and threatening legal  action for breach of contract.

33. Based on the above facts, this court is not persuaded that  at this  interlocutory stage, the applicant  has on a balance of probabilities demonstrated  an unusually strong  case against  the respondent  to warrant  grant of  a mandatory injunction.  The reasons being that there has been no attempt to show that the applicant complied with the terms of the letter dated 24th May 2012.   Other than payment for the contemplated   supply contract which payment was made after six months from the 24th May 2012, in total disregard of the stipulated 90 days of the date of letter of offer, there is nothing annexed to the supporting affidavit of the applicant to show that the applicant complied with the other conditions in the checklist as reproduced above to facilitate speedy processing of the application for supply of electricity to the applicant’s premises.

34. There is also no evidence that the respondent obtained the necessary way leaves and or easements permission or that it refused to seek permission for the way leaves/easements from property owners/county government to enable it construct the power lines.  The  respondent in its defence  filed on 21st July 2015 contends that it  had been unable to  secure the necessary  way leaves/easements  permission from property  owners  which had  frustrated  its  ability to provide the supply.

35. In addition, the respondent contended  that the applicant  had not  submitted test certificates to  it as  required  hence his application  was incomplete  and that  the timelines for  the supply offer were not adhered to leading to the termination of the offer of supply.

36. With the above position prevailing,  it was incumbent upon the applicant  to demonstrate at this stage  that he had  complied  with all the conditions required  for the installation of electricity before supply of electricity could  be installed and that the  respondent  had unreasonably failed  to install the electricity  despite his compliance thereby  breaching the contract, to warrant a mandatory injunction.

37. In my humble view, the applicant’s application for installation of electricity to his premises is incomplete, in the absence of any evidence to the contrary.  It is not sufficient for the applicant to claim that supply to his neighbor’s premises had been done and that he had been discriminated against or that failure to supply him with electricity was contrary to the provisions of the consumer protection Act or that it is in breach of his constitutional consumer rights.  No specific provisions of the consumer protection Act were referred to or alluded to, to have been breached. It has not been demonstrated by the applicant that the contractual obligations under the agreement for supply of power is contrary to the constitution. It has not been shown that the contract and its conditions requiring compliance contravene the supreme law of the land. Courts do not exist to rewrite contracts between parties but to enforce them, except where the contract is illegal then the court would not sanction it. Further, there is no affidavit evidence that under the same prevailing circumstances   as the applicant’s, his neighbors had electricity installed at their premises.  This court does appreciate that the respondent is a monopoly in the electricity supply.  However, in the absence of any evidence that the respondent has no reason why it has not installed power to the applicant’s premises, in view of the absence of proof by the applicant that he complied with all conditions for supply of electricity, this court is unable to exercise its discretion in favour of the applicant.  This court is equally unable to find that the applicant’s case is unusually strong   or that it is so clear that this court would decide the matter at once.  I do not find the matter  before me  being a simple and  summary  act which could  be easily remedied  or that the  respondent/defendant  has attempted to steal a match  on the plaintiff/applicant.

38. The respondent’s conduct of not responding to correspondence from the plaintiff/applicant is indeed despicable and offensive   and unjustified.  However, failure to respond to correspondence per se could not have given rise to the cause of action herein and therefore the case of Peninah Mbithe V Kenya Power & Lighting Company HCC 215/2015 is not applicable or in  pari materia to this case.  It was upon the applicant to fulfill his part of the bargain and then demand performance by the respondent.  The standard required for the grant of a mandatory injunction is much higher than that required for a prohibitory injunction.   In the instant case, it is my humble view that the applicant has not demonstrated and or discharged that higher standard of proof.

39. Furthermore, although the applicant  claims that he has  suffered  financial losses  and or that  his family  risks being invaded by wild animals and criminals  which is  an irreparable  loss, this court is  unable to  believe him  for reasons that he only paid  for the installation  over 6 months  after being   advised to do so. Secondly, from December 2012, it was not until September   2014, nearly two years that he instructed   his advocate to demand for supply.   There is  no reason  why the applicant  took that  long to demand  for supply of power   to his premises, after  paying for installation on 7th December  2012 if the supply  was that urgent  in  view of  the risks of being invaded by criminals and or  wild animals. There is no evidence that parties had been negotiating for a settlement. Again, from December  2014 when  he last send a reminder letter  to the respondent,  it took him another  seven months  to 4th June  2015  to  institute this suit  and two months  later on 29th September 2015  to file  an application subject of this  ruling under  certificate or urgency.

40. The applicant has failed to demonstrate to this court that he has suffered, continues to suffer or will suffer irreparable harm/loss or injury if the mandatory injunction is not granted in his favour. He has not even laid a basis for this court to believe that failure by the respondent to supply him with electricity will subject him to invasion by criminals/wild animals and or that the said power supply will wade off criminals/wild animals. In CA 332/2000 Kenya Breweries Ltd & Another V Washington O. Okeyo  the Court of Appeal  was clear that  the court will not grant  a mandatory injunction  if the damage caused by the unlawful acts  of the defendant  is trivial or if  the granting of it  will inflict  on the defendant disproportionate  detriment than the benefit  it would  confer upon the applicant/plaintiff  and that the  basic concept  is that  of producing  a ‘fair result’ which  involves the exercise of the court’s  judicial  discretion in coming to the  conclusion at the interlocutory stage  that the   granting of it is right.

41. In this case, even applying the  basic principles  established in the  Giella V Cassman Brown case for  the grant   of interlocutory injunction,   I find that  on the facts and affidavit   evidence availed  to court, a  prima facie  case with a probability of success  has not  been  established  at this stage.  Secondly, the applicant has failed to demonstrate that if the mandatory injunction is not granted in his favour, then he will suffer irreparable loss that cannot be compensable by an award of damages.  And if the above two  issues are not  in his favour,  as to whether, considering  the circumstances  of the case, the  balance of  convenience  tilts in his  favour.  I find that  in this case, in the absence  of any evidence  that the  respondent did obtain  way leaves/easements  permission but nonetheless  refused to construct  the power lines  to the applicant’s premises, to grant the mandatory injunction against it  would in my view  inflict on the respondent/defendant a disproportionate  detriment than a benefit  it would  confer upon the applicant/plaintiff  who has by his plaint  sought for general damages for breach of  contract. The respondent would be sued for trespass to private property.

42. In the end, I have no difficulty in finding and concluding that the plaintiff/applicant has failed to demonstrate on a balance of probabilities that he deserves a mandatory interlocutory injunction against the respondent/defendant at this stage. I find that it is more convenient for the applicant to comply with all the requirements for installation of power supply to his premises before demanding for such supply.

43. Accordingly, I reject the application for a mandatory injunction at this interlocutory stage and dismiss the application dated 29th September, 2015.

44. Costs are in the discretion of the court and in any event to successful party.  In the instant case, I would  exercise my discretion and order that  each  party bear their  own costs  of the application for the reasons that the respondent did not  in the period 2012-2015  provide  to the applicant any specific reasons for  non installation of the power supply to his premises, until this suit   was instituted and the reasons disclosed  in the defence. Such conduct in my view does not deserve an award of costs even if the defendant is successful party and therefore the same are hereby denied.

Orders accordingly.

Dated, signed and delivered in open court at Nairobi this 12th day of April 2016.

R.E. ABURILI

JUDGE

In the presence of

Senior Counsel Mr Nzamba Kitonga for the plaintiff/applicant

Mr Obok for the defendant/ respondent

Henry: Court Assistant