Macplan Engineering Services Ltd v Peter Grundhlehner [2013] KEHC 6743 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

CIVIL CASE  NO 516 OF 2012

MACPLAN ENGINEERING SERVICES LTD.........................PLAINTIFF

VERSUS

PETER GRUNDHLEHNER..............................................DEFENDANT

R U L I N G

1.     The Plaintiff’s claim against the Defendant is based on a building contract which it pleads the Defendant breached.  The building contract was for rebuilding or renovation of the Defendant’s residential house and related structures.  The main reliefs sought in the plaint are special damages of KShs 350,000/00 and general damages for breach of contract.  The suit was filed in the lower court.  It was transferred to the High Court by an order made in June 2012.

2.     Together with the plaint the Plaintiff had filed notice of motion dated 1st November 2011.  It sought the main order of temporary injunction to restrain the Defendant from interfering in any manner whatsoever with his own property which was the subject of the building contract pending disposal of the suit.  An alternative order was sought to require the Defendant to deposit in court as security a sum of money equivalent to the Plaintiffs claim.

3.     The Plaintiff had sought, pending hearing and determination of the application, interim injunction in terms of the main order sought.  An interim order to require the Defendant to deposit his passport, visa and other travel documents in court pending hearing and determination of the application was also sought. Interim orders as requested were granted ex parte on 1st November 2011.  The orders were confirmed on 22nd December 2011, apparently upon the Defendant’s failure to attend court on that date.  The previous day, that is 21st December 2011, the Defendant had deposited in court KShs 350,000/00.  I cannot find on the court record any order of the court requiring him to do so.

4.     The Defendant subsequently applied by notice of motion dated 30th December 2011seeking the main order to vary or set aside the orders of 22nd December 2011.  A further order is sought to require the Plaintiff to deposit in court the sum of KShs 1,062,000/00 as security.  Apparently this further prayer is informed by the Defendant’s intention to lodge a counterclaim against the Plaintiff for that sum.  But as things now stand there does not appear to be any counterclaim by the Defendant on record.   This application is the subject of this ruling.

4.     The grounds for the application appearing on the face thereof and that emerge from the supporting affidavit (sworn by one Joseph Kirori Kamunyu, without stating the capacity in which he has sworn the affidavit as he is not a party) include –

(i)     That the Plaintiff was the one who was in breach of the contract.

(ii)    That the Defendant and other innocent parties are suffering as a result of the orders sought to be set aside.

(iii)    That the effect of the orders sought to be set aside was to stop the renovation/reconstruction works of the building, a residential house, which is now in danger of collapsing, and therefore poses grave danger to the Defendant and his family, who reside in it.

(iv)   That it is fair and just that the order sought be granted.

5. The Plaintiff opposed the application by replying affidavit filed on 12th June 2013.  The same is sworn by one Paul Kamau Machariawho has described himself as a co-director of the Plaintiff.  Grounds of opposition emerging therefrom include -

(i)     That the Plaintiff’s equipment and construction materials were left on site.

(ii)    That, whereas indeed the effect of the orders sought to be set aside was to stop any further progress on the construction site until determination of the suit, it is fair and just that the orders do remain in place until determination of the suit.

(iii)    That delay in prosecuting the suit has been caused by the Defendant’s action of filing many applications in the suit.

6.     In response to the replying affidavit the Defendant filed a supplementary affidavit (wrongly titled further replying affidavit) on 26th June 2013.  It is sworn by the same Joseph Kiroru Kimunyu; again he does not state his capacity beyond saying that he has the authority of the Defendant to swear the affidavit.  It is deponed in this affidavit, inter alia,

(i)     That by the time the injunctive orders were granted the Plaintiff had removed all his material and equipment from the site, and that only the Defendant’s materials are on site and are wasting away because of the injunction.

(ii)    That the suit premises are in a sorry structural state and pose a danger to the lives of the persons who reside in it.

7.     I have considered the submissions of the learned counsel appearing, including the cases cited.

8.     The orders sought to be set aside were granted by the lower court before the matter was transferred to this court.  Temporary injunctions are normally granted where the plaintiff has established aprima faciecase with a probability of successand has further demonstrated that he stands to suffer irreparable loss unless the order is granted.  Irreparable loss is such loss as cannot be compensated by an award of monetary damages.  If the court is unable to decide the application upon those two principles, it will decide it upon a balance of convenience.

9.     The Plaintiff has claimed monetary damages from the Defendant.   So what irreparable loss could it possibly suffer in the event that its application for temporary injunction was refused?   Furthermore, on 21st December 2011 the Defendant had deposited in court the Plaintiff’s liquidated claim of KShs 350,000/00.  In these circumstances, the temporary injunction sought should not have been granted at all!

10.   The only purpose which appears to have been served by the temporary injunction granted was to unduly punish the Defendant before judgment.  The temporary injunction had the effect of stopping the reconstruction or renovation of his house which has continued to deteriorate further.  Apart from malice, of what benefit to the Plaintiff was this stoppage when its claim was in monetary damages, part of which claim was liquidated and already deposited in court?

11.  I have no hesitation at all in reviewing and setting aside the orders granted to the Plaintiff on 22nd December 2011.  They are hereby set aside.  As for the prayer for deposit of security by the Plaintiff, the same is not well founded in that there does not appear to be any counterclaim lodged by the Defendant.  Consequently, that prayer must be refused.

12.   I will award costs of this application to the Defendant in any event. It is so ordered.

DATED AND SIGNED AT NAIROBI THIS 10TH DAY OF OCTOBER 2013

H. P. G. WAWERU

JUDGE

DELIVERED AT NAIROBI THIS  11TH DAY OF OCTOBER 2013